Bootlegs... what's illegal...?

1. Is buying them? - Yes

2. Is promoting them? - Yes (though it would fall under a
Civil action, rather than a Criminal one)

3. Is reviewing them? - Not technically, but it could be seen
as a form of promotion.

4. Is giving them away? - No

5. Is swapping them? - No

6. Is discussing them? - No (but again, depending on context,
it could be seen as a form of promotion)

7. Is describing them? - No (but see point above)

The crux of the problem is tied up with 'Profit', or at a
basic level 'money changing hands'.

It is not illegal to be in possession of bootlegs, but it is
illegal to sell them.

BorisFishpaw said:

You seem to have found the same websites that I did. Nothing really revealing in this information, (it mirrors what most of us thought anyway) apart from knowing that trading or giving away bootlegs is not illegal. Once again though, these laws/statutes are relating to US, and I am unsure how US law relates to the international marketplace. A US judge can make any decision they want, but the ruling is not enforceable outside of America, surely? In order for Prince to fight a case with a website hosted in Malysia, he must prove illegal action/breach of copyright etc under Malaysian law.
Nice to know I'm not a criminal, though!

BorisFishpaw said:

But this case with Uptown was settled out of court. Therefore both parties came to an agreement, and entered into a "contract" that stated that ALL lawsuits would be dropped if certain conditions were met. It didn't set a legal precedent, and cannot be used in any similar case to show precedent. My opinion would be that Prince's legal team took the view that they were happy for his unreleased work to be discussed, thereby promoting the artist, but did not want the bootleg labels discussed, because it raises awareness of the product. Uptown made the concession because their focus was not primarily bootlegs, but more of recording Prince's career.
It still does not answer the question whether reviewing bootlegs is in fact illegal. There has not been a successful lawsuit of this kind prosecuted (as yet). I seriously doubt that a site that only reviews bootlegs could be legally closed down (The issue with pictures of the bootlegs/covers is different, because as has been said before there is a better case for copyright infringement, although as to who holds that copyright is not clear. Usually it is the photographer, but Prince may well make a stipulation that he can veto a photographs usage before he signs a release.) I re-iterate that this is my interperetation of the facts that I have heard. I've been trawling the web researchig this, and haven't found anything concrete with regards to reviewing bootlegs.

So the basic upshot is that using images of bootlegs is
illegal, as the image will a)breach copyright, and b) use
said indivual's name and image without their consent.

Bootlegs themselves are illegal (for the reasons set out
above).

The creation of a site or publication discussing and
cataloguing bootlegs is a grey area. If it was just a list
of bootlegs with tracklists and other factual information
about said bootlegs, then I doubt there would be any legal
ground to support it's removal.

The problem is if the site offers reviews and opinions of
said bootlegs, as this could be construed as 'promoting',
(for the reasons outlined in previous posts). If it went
to court there is a chance that Prince could win (even if
it is only slight), and therefore no website owner is
going to risk litigation on something that they have no
financial interest in (see the 3 points in LoveRobot's
response).

Bootlegs... what's illegal...?

1. Is buying them? - Yes
Not clear, depends on the situation. If you are led to believe you are buying an official CD it's usually not illegal

2. Is promoting them? - Yes (though it would fall under a
Civil action, rather than a Criminal one)
It could be seen as a form of contributory and/or vicarious copyright infringement. Legal action can then be civil or criminal.

3. Is reviewing them? - Not technically, but it could be seen
as a form of promotion.
which is the central issue in this case

4. Is giving them away? - No
agreed

5. Is swapping them? - No
yes, ie. if you make copies and swap those

6. Is discussing them? - No (but again, depending on context,
it could be seen as a form of promotion)
agreed, but again the central issue here and thus (IMO) a weak case

7. Is describing them? - No (but see point above)
agreed, thus also a weak case

The crux of the problem is tied up with 'Profit', or at a
basic level 'money changing hands'.
The real crux is whether any reproduction and distribution of copies takes place. If so, you are fucked, regardless of any money changing hands. If not, you are back to civil tort actions, which makes it more difficult

It is not illegal to be in possession of bootlegs, but it is
illegal to sell them.
Agreed and to make copies of them to swap

BorisFishpaw said:

--
[This message was edited Wed Jan 21 6:46:11 PST 2004 by Abrazo]

Bootlegs... what's illegal...?


5. Is swapping them? - No
yes, ie. if you make copies and swap those

Sec. 1101. - Unauthorized fixation and trafficking in sound recordings and music videos


(a) Unauthorized Acts. -

Anyone who, without the consent of the performer or performers involved -

(1)

fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation,

(2)

transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or

(3)

distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States,


shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright.

(b) Definition. -

As used in this section, the term ''traffic in'' means transport, transfer, or otherwise dispose of, to another, as consideration for anything of value, or make or obtain control of with intent to transport, transfer, or dispose of.

(c) Applicability. -

This section shall apply to any act or acts that occur on or after the date of the enactment of the Uruguay Round Agreements Act.

(d) State Law Not Preempted. -

Nothing in this section may be construed to annul or limit any rights or remedies under the common law or statutes of any State.

Bootlegs... what's illegal...?
2. Is promoting them? - Yes (though it would fall under a
Civil action, rather than a Criminal one)

I didn't see anything in there that mentions "promoting". Just "fixing sound" (i.e. creating"), "distributing, offering to distirbute" etc.

WHere does "promoting" get addressed in that law?

Moreover, are any of y'all actual lawyers?

Thanks again you guys for such well researched and insightful responses!

I'm not a lawyer so forgive me if I'm missing something, but I re-read the legal quotes several times and I still don't get this part:

BorisFishpaw said:

I didn't see anything in there that mentions "promoting". Just "fixing sound" (i.e. creating"), "distributing, offering to distirbute" etc.

WHere does "promoting" get addressed in that law?

I also remember reading something about if a copyright holder doesn't make an effort to protect their work, that they can end up losing the rights to enforce it in the future. Not sure I'm getting this exactly right, but it was like if you were aware of, but ignored the fact people were violating your copyright, that you then couldn't try & protect it on the works in question in the future.

Hope I'm remembering it right or I could just be

If the bootlegs in question are live recordings, then no, under US law it does not appear to be illegal.


http://www4.law.cornell.e.../1101.html

Sec. 1101. - Unauthorized fixation and trafficking in sound recordings and music videos


(a) Unauthorized Acts. -

Anyone who, without the consent of the performer or performers involved -

(1)

fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation,

(2)

transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or

(3)

distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States,


shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright.

(b) Definition. -

As used in this section, the term ''traffic in'' means transport, transfer, or otherwise dispose of, to another, as consideration for anything of value, or make or obtain control of with intent to transport, transfer, or dispose of.

(c) Applicability. -

This section shall apply to any act or acts that occur on or after the date of the enactment of the Uruguay Round Agreements Act.

(d) State Law Not Preempted. -

Nothing in this section may be construed to annul or limit any rights or remedies under the common law or statutes of any State.


Trading on a one for one basis would appear to be acceptable, as there is no "value" to be gained? (I suppose it would be up to a judge's subjective opinion whether trading one for one constituted "as consideration for anything of value".)
However, trading 2 for 1 blanks has apparently been successfully prosecuted.