Judge: Phish can ban but not seize bootleg merchandise

NORFOLK

A federal judge refused to grant an order allowing representatives of the jam band Phish to seize bootlegged merchandise they find at their upcoming Hampton shows.

U.S. District Judge Raymond A. Jackson said he would issue an order today granting an injunction prohibiting the sale of unauthorized Phish items, but the order would be largely unenforceable without a seizure order to go along with it.

"There's no way the court is going to issue a seizure order," Jackson told Phish's lawyers Thursday afternoon.

Phish, a band known for attracting a large following from show to show, opens a three-night stand tonight at the Hampton Coliseum, kicking off its reunion tour. In court papers, Phish says popular bands lose millions of dollars each year from

bootleggers selling unauthorized merchandise, such as T-shirts and jewelry.

The band sought to stop those sales by getting a court injunction and seizure order, allowing authorities and band representatives to take unauthorized, unlicensed items and eventually destroy them. Phish, on previous tours, and other bands have obtained similar court orders.

But Jackson had some issues with this one.

He told the lawyers that they failed to follow proper legal procedures in seeking the seizure order, including notifying the U.S. attorney's office and filing the matter in secret.

Jackson appeared particularly perturbed that the action has already been in the media.

The band, he said, "was required to file this as a sealed matter. The court cannot file a sealed seizure order if it's already been in the press," Jackson said.

Phish's lawyers declined to comment after the proceeding.

During the hearing, Jackson frequently interrupted Phish lawyer Amy G. Marino as she tried to argue for the seizure order.

"The court has some concerns about your application," the judge said almost immediately after taking the bench.

First he took issue with the failure to notify the U.S. attorney's office. This was important, he said, to avoid overlap with any possible federal law enforcement action against the bootleggers.

"You filed this several days ago," Jackson said. "There's been plenty of opportunity for you to serve the U.S. attorney."

And when he criticized the lawyers for making the suit public, Marino responded: "The plaintiff had no say in publicizing it."

"Your responsibility was to comply with the statute," Jackson shot back.

The judge gave the lawyers until this morning to raise a new argument for the seizure order, but Jackson said he knew of no way around his denial.

Also as a result, Jackson wouldn't grant the U.S. Marshals Service and local and state police the authority to seize bootleg items within a 20-mile radius of the Hampton Coliseum from 10 hours before to six hours after the shows, as the band requested.

Without a seizure order, the band has said, it is virtually powerless to stop the bootleggers.

On previous tours, when confronted by band representatives, the bootleggers simply walked away, ignoring requests to stop selling the unauthorized merchandise, Phish's court papers say.

Phish, known for its 20-minute-long jams, racked up $175.5 million in concert revenues before going on hiatus in 2004. The band has its own authorized vendors selling authentic Phish items at all its shows.

Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com