Anti-Bootlegging

The Constitutionality of Anti-Bootlegging Legislation

Cristina Lipan, December 17, 2009

© All Rights Reserved.

INTRODUCTION

Musicians and other performers enjoy copyright protection in three distinct things.[1] The first is in the musical composition itself, which has been protected by statute under copyright law since 1831.[2] The second is in sound recordings, which has been protected since 1971.[3] The third is in unrecorded live musical performances, which has only relatively recently been codified. [4] In 1994, the federal government enacted two anti-bootlegging[5] statutes, which created civil and criminal liability for bootlegging live performances;[6] under 17 U.S.C. § 1101, offenders may be subjected to civil remedies akin to those for copyright infringement,[7] while under 18 U.S.C. § 2319A, offenders are subject to fines and possible imprisonement.[8] Prior to 1994, there was no federal protection extended to unrecorded live musical performances.  A bootlegger could record a live musical performance, and distribute copies without any authorization from the performers, and would not have violated copyright law.[9] Due to this hole in copyright protection and by the increasing availability and demand for bootleg recordings, Congress ultimately addressed these issues.[10]

The statutes stemmed from the United State’s obligations under the Uruguay Round of trade negotiations under the General Agreement on Tariffs and Trade (hereinafter, “GATT”).[11] GATT produced the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”),[12] which provides that

“[i]n respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing[,] . . . when undertaken without their authorization[,] the fixation of their unfixed performances and the reproduction of such fixation[, and] the broadcasting by wireless means and the communication to the public of their live performance.”[13]

These rights “shall last at least until [50 years after] the fixation was made or the performance took place.”[14] TRIPS further states that its members “shall give effect to the provisions of this Agreement,” and are “free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.”[15] As a result, Congress enacted the Uruguay Round Agreements Act (hereinafter, “URAA”),[16] which was then codified as 17 U.S.C. § 1101 and 18 U.S.C. § 2319A.[17]

However, the Copyright Clause of the U.S. Constitution only gives Congress the power to give “for limited Times” the “exclusive Right” to “Authors” for their “Writings.”[18] Congress may have exceeded its authority, since the provisions are for live musical performances, which has not been understood to fit within the definition of ”Writings,” and the provisions also do not have any durational limit to protection of these performances.[19] Several cases have analyzed this issue in depth: United States v. Moghadam,[20] and United States v. Martignon,[21] and Kiss Catalog v. Passport International Products.[22]

UNITED STATES v. MOGHADAM

Moghadam was convicted of violating the criminal provision of the anti-bootlegging statute, and subsequently appealed arguing that the statute was unconstitutional.[23] In 1999, the Eleventh Circuit Court in Moghadam upheld the statute, which provides:

Whoever, without the consent of the performer or performers involved, knowingly and for purposes of commercial advantage or private financial gain

(1) fixes[24] 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[25] or phonorecord fixed  . . . shall be imprisoned . . . . [26]

The Copyright Clause

The Copyright Clause gives Congress the power to “promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” [27] However, Congress’s power is limited in some ways.  For instance, the term “Writings” limits Congress to protecting works of authorship that are original.[28] In Moghadam, the issue was the concept of fixation, which suggests that a work is in tangible form, which is “said to be embedded in the term ‘Writings.’”[29] The appellant argued that an unrecorded live performance “has not been reduced to a tangible form or fixed as of the time of the performance,” but only became tangible by the bootlegger’s recording.[30] The Moghadam court did not make a decision on this issue, however, since they upheld the statute under Congress’s Commerce Clause.[31]

The Commerce Clause

The Commerce Clause gives Congress the power to “regulate Commerce with foreign Nations, and among the several States.”[32] Congress may exercise that power in several ways, but the court in Moghadam focused on “intrastate activities that substantially affect interstate commerce,” and stated that the applicable test was “whether a rational basis existed for concluding that a regulated activity sufficiently affected interstate commerce.”[33] The court further explained that to survive Commerce Clause scrutiny, there must be more than a “generic relationship several steps removed from interstate commerce, and it must be a relationship that is apparent, not creatively inferred.”[34] Since Congress “thought” it was acting under its Copyright Clause power, the court cannot look at the statute’s legislative history to find this relationship, but since this is not necessary to survive scrutiny, the court goes on to look for the source of Congress’s power under the Commerce Clause, post hoc.[35]

The statute itself does not explicitly require that the bootlegging has affected interstate commerce, but the court explains that this is not necessary, as long as it can “determine independently whether the statute regulates ‘activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affect interstate commerce.’”[36] One of the elements of the criminal offense is that the bootlegging activity must have been done “for purposes of commercial advantage or private financial gain.”[37] The court therefore found that there was a clear link between the conduct prohibited by the statute and interstate commerce and commerce with foreign nations.[38] Firstly, the artists whose performances are bootlegged are “sufficiently popular that their appeal crosses state or national lines,” and therefore the unauthorized distribution depresses the legitimate interstate market.[39] Additionally, the statute was enacted by treaty via the World Trade Organization (WTO),[40] which shows that the focus of the provision was to address the bootlegging issue on the international level.[41]

Even if Congress has the power to enact the provision under the Commerce Clause, there is still an issue of whether the Commerce Clause can be used to avoid the limitations that might be imposed under the Copyright Clause.[42] The grants of legislative authority provided in the Constitution impliedly limits the extent of Congress’s power; by affirmatively granting only certain powers, the Framers intended to limit Congress’s power in certain respects and by using another source of power, i.e., the Commerce Clause, Congress is frustrating the Framers’ intentions.[43]

However, there is a line of cases that suggests Congress may use its power under the Commerce Clause when it would not have the power to do so under the Copyright Clause, because the powers given to Congress under the Constitution “stand alone and must be independently analyzed.”[44] The Court weighed both arguments and concluded that the Copyright Clause does not limit Congress’s ability to enact “copyright-like protection” under the Commerce Clause, explaining their reasoning by stating that the regulation on unfixed live musical performances is not fundamentally inconsistent with the Copyright Clause.[45] The Court does not, however, address the problem that the bootlegging provision may be inconsistent with the “Limited Times” provision of the Copyright Clause, because Moghadam had not challenged the statute on that basis.[46] The District Court in United States v. Martignon[47], however, did.

UNITED STATES V. MARTIGNON (MARTIGNON I)

In 2003, Jean Martignon was prosecuted under 18 U.S.C. § 2319A, the criminal prohibition against bootlegging.[48] Martignon was the owner of Midnight Records, and, without authorization from the artists and performers, distributed and sold phonorecords of live musical performances.[49] Martignon then challenged the constitutionality of the statute.[50] In 2004, the District Court for the Southern District of New York, found that the statute was unconstitutional and dismissed the indictment against Martignon in United States v. Martignon (Martignon I),[51] but the Second Circuit (Martignon II) later vacated that dismissal and overruled the lower court’s decision.[52]

A Copyright or Commercial Regulation?

The Court begins by deciding whether the statute is a copyright law or commercial regulation, in order to ensure that Congress is not overstepping any limits imposed on it by the Constitution.[53] The Court first points out that the provisions were enacted under Congress’s belief that it was acting under the Copyright power, and although this is not dispositive, it does suggest that Congress’s power here is governed by the Copyright Clause.[54] The Court further clarifies this issue, by looking at the context in which the provision was enacted, its wording and its legislative history.[55] The statute was enacted under TRIPS, which dealt completely with intellectual property.[56] The wording of the statute shows that its “purpose is synonymous with that of the Copyright Clause.”[57] The purpose of the Copyright Clause is to encourage the efforts of individuals by ensuring “personal gain,” in order to “advance [the] public welfare through the talents of authors and inventors in [the] ‘Science and useful Arts,’”[58] while the anti-bootlegging provision imposes criminal liability for whoever “knowingly and for purposes of commercial advantage or private financial gain” fixes, transmits or distributes sounds or images of a live musical performance.[59] The Committee on the Judiciary’s report describes the legislation in terms of copyright and does not mention commerce.[60] Finally, the provision is situated within the copyright provisions of the United States Code.[61] Although the bootlegging provision is intertwined with commerce, the purpose of its enactment was to protect copyright, not commercial, rights, and therefore the Court found that it is a Copyright regulation.[62] Therefore, the only source of power to enact the anti-bootlegging provisions is under the Copyright Clause.[63]

The Constitutionality of the Anti-bootlegging Provisions under the Copyright Claus

The Copyright Clause authorizes Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[64] The Court found that the anti-bootlegging statute exceeded two of the limitations imposed by the Copyright Clause – that it be for “limited Times” and that it be regarding “Writings.”[65] It is well established that live musical performances are not “Writings.”[66] Although recordings of live musical performances are considered “Writings,” performances that have not been recorded, except by the bootlegging, are not, since they are not “fixed,”[67] meaning that it has some “material form, capable of identification and having a more or less permanent endurance.”[68] Additionally, the anti-bootlegging statute does impose any time limitation on the copyright protection of live musical performances.[69] Therefore, the statute conflicts with both of these limitations imposed by the Copyright Clause.[70]

Copyright v. Commerce Clause Power

In direct opposition to the Moghadam court, the Court here held that “Congress’ power to act in the Copyright field is limited by the confines of the Copyright Clause,” and Congress may not enact a Copyright statute under the another source of power, when the Copyright Clause expressly limits their power to do so.[71] In Railway Labor Executives’ Association v. Gibbons, the United States Supreme Court addressed the same issue, but in terms of the Bankruptcy Clause.[72] In Railway, the Supreme Court struck down a statute enacted by Congress which only applied to one regional bankrupt railroad, because the Bankruptcy Clause requires uniformity.[73] The Supreme Court further explained that the Bankruptcy Clause “contains an affirmative limitation or restriction upon Congress’ power,” and Congress could not enact bankruptcy laws under the Commerce power, as it would “eradicate from the Constitution a limitation on the power of Congress to enact bankruptcy laws.”[74] Accordingly, Congress cannot enact under the Commerce Clause legislation which the Copyright Clause forbids.[75]

The lines of cases that the Moghadam Court relied upon[76] do not contradict this principle either.[77] For example, The Trademark Cases involved trademarks and Congress may enact such legislation under their Commerce power, since the Copyright Clause does not limit it.[78] Additionally, the Court noted that in Authors League of America, Inc. v. Oman, the focus of the legislation was in protecting the printing industry, and as such, Congress had the authority to act under the Commerce Clause.[79] The court in Martignon I further rebuked the holding in Moghadam, finding that the anti-bootlegging statute was “fundamentally inconsistent” with the Copyright Clause.[80]

KISS CATALOG v. PASSPORT INTERNATIONAL PRODUCTS

In 2004, the District Court for the Central District of California also had the opportunity to review the constitutionality of the civil portion of the anti-bootlegging statute in Kiss Catalog v. Passport International Products (Kiss I).[81] Members of the iconic band Kiss brought the claim against the Defendants for distributing a non-commercially distributed recording of their 1976 Kiss Concert, and based their claim on 17 U.S.C. § 1101.[82] The statute provides that:

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 same remedies as that for copyright infringement].[83]

The defendants argued that the claim should be dismissed because, in addition to other grounds,[84] the statute itself was unconstitutional.[85] The criminal provision differs only slightly from the civil one, where the criminal provision also requires that the infringer “knowingly” made an unauthorized recording for “commercial advantage or private financial gain,” but the two are similar enough that they implicate the same questions of constitutionality.[86]

Kiss I held that the provision fails under the limitations of the Copyright Clause for the same reasons set forth in Martignon I.[87] Kiss I also held, like the Martignon I court did, that Congress may not use authority under the Commerce Clause to enact copyright-like legislation, when the power to do so is limited by the Copyright Clause.[88] The District Court held the statute unconstitutional,[89] but was overturned the following year in Kiss Catalog v. Passport International Products (Kiss II), finding the statute constitutional.[90] The District Court in Kiss II agreed with the Eleventh Circuit’s analysis in Moghadam, holding that the power to enact the anti-bootlegging provisions is derived from the Commerce Clause.[91] Kiss II also held that the statute is not fundamentally inconsistent with the Copyright Clause, as the Martignon I court had, explaining that “the various grants of legislative authority contained in the Constitution stand alone and must be independently analyzed,” and that “each of the powers of Congress is alternative to all of the other powers, and what cannot be done under one of them may very well be doable under another.”[92]

UNITED STATES V. MARTIGNON (MARTIGNON II)

Finally, in 2007, the Second Circuit readdressed the unresolved issues in United States v. Martignon (Martignon II).[93] The Court started by noting that the government concedes that the anti-bootlegging statute exceeds the authority given to Congress under the Copyright Clause, and therefore the analysis is focused on whether the Copyright Clause limits Congress from enacting the legislation under the Commerce Clause power.[94] The government argues that the provision falls outside the scope of the Copyright Clause, and thus can be supported by the Commerce Clause, because live musical performances are not fixed.[95] Martignon argues that the provision falls under the authority of the Copyright Clause because they are creative works, but violates the Copyright Clause because live performances are not fixed and the provision gives an unlimited duration for such protection.[96] The Court ends up remanding the case back to the District Court, and finding that the statute may be upheld by the Commerce Clause.[97]

Copyright Law or Copyright-Like?

In its analysis, the Court begins by looking at the language of the Copyright Clause itself, but finds that the wording does not give any guidance on the issue.[98] Then the Court looks at precedent, but there is still no clear answer.[99] As discussed in Moghadam and Martignon I, there are two lines of cases that that may shed some light.  Moghadam relied upon the line of cases that stood for the proposition that Congress may sometimes enact legislation under one constitutional provision when it could not have done so under another.[100] However, that power has its limits, as was the case in Railway, where the Court reasoned that allowing Congress to enact such legislation under the Commerce Clause defeated the purpose of having a Bankruptcy Clause.[101] The Court therefore decides it must go through each of the cases to determine the issue.

The Court begins with the Trade-Mark Cases, which held that because trademarks lack originality, it does not fall under the scope of the Copyright Clause, and thus Congress may legislate on matters regarding trademarks under the Commerce Clause.[102] Heart of Atlanta Motel v. United States,[103] however, took this a step further.  In contrast with the Trade-Mark Cases, the regulation in Heart of Atlanta clearly fell within the scope of the Fourteenth Amendment, yet the Supreme Court still held that it did not matter if Congress did not have the power under the Fourteenth Amendment, since it they had sufficient power under the Commerce Clause.[104] Finally, the Court turns to Railway,[105] which held that Congress could not exercise its power under the Commerce Clause, when the power exceeded the limitations imposed by the Bankruptcy Clause.[106] However, the Court distinguishes the instant case from Railway, by pointing out that the provision in Railway was a bankruptcy law, while the anti-bootlegging provision here is not a pure copyright law, but merely “copyright-like.”[107]

In determining that the anti-bootlegging provision is merely copyright-like, the Court first looks at the Constitutional provision and notes that, unlike the Bankruptcy Clause,[108] the Copyright Clause “does not identify the type of law Congress may pass pursuant to it,” and that “the word ‘copyright’ does not appear in it at all.”[109] Additionally, the Copyright Clause gives Congress the power to enact legislation to secure to “Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” while the criminal anti-bootlegging provision here does not give an author any rights, but instead reserves the right to “exclude others from the performance” to the government.[110] The same distinction exists with the Copyright Act, which is copyright law and subject to the Copyright Clause, and the provision at issue here.[111] The Court concludes that the criminal anti-bootlegging provision was not enacted under, is not within the scope of, and is not subject to the limitations of the Copyright Clause.[112]

Constitutionality under the Commerce Clause

The only issue that remained for the Court to determine was whether Congress had power to enact the provision under the Commerce Clause.[113] As the Moghadam court explained, the provision clearly affects interstate and international commerce.[114] After upholding the constitutionality of the statute, the Second Circuit remanded the case back to the District Court to vacate Martignon’s dismissal.[115]

MARTIGNON II: A GOOD DECISION?

The enactment of the anti-bootlegging provisions was necessary in order to comply with the international treaty obligations under the URAA.[116] However, there has been debate on whether the reasoning behind upholding the legislation is sound.[117] Martignon II’s holding that Congress may enact copyright legislation which does not comply with the Copyright Clause’s fixation and durational requirements is unsettling.[118] This “significantly impact[s] copyright law,” as it protects even unfixed works that had not been previously protected.[119] Still the more troubling is that this protection may oppress rights of the public domain, since there is no durational limit to the protection, and thus live musical performances will never be freely available to the public.[120]

The analysis of Moghadam, for example, has several flaws. The court in Moghadam suggests that certain limitations on Congress’ authority “may be ignored if Congress so decides.”[121] Moghadam held that the anti-bootlegging legislation was not fundamentally inconsistent with the Copyright Clause,[122] yet it is clearly inconsistent with the “limited Times” requirement.

Additionally, there has been a lot of controversy regarding Congress’ broad ability to legislate under the Commerce Clause.[123] In Moghadam, the fact that the court refers to Congress’s intention that the anti-bootlegging statute was to be enacted under Congress’s Copyright Clause power, while the court decides to use the all-encompassing Commerce Clause power, is quite suggestive. There has been much debate on whether the Commerce Clause has often been too broadly interpreted, allowing Congress to legislate on matters that may not have originally been intended by the Founders of the Constitution for Congress to have power over.[124]


[1] United States v. Moghadam, 175 F.3d 1269, 1272 (11th Cir. Fla. 1999).

[2] See 17 U.S.C. § 102(a)(2) (“musical works, including any accompanying words”); Moghadam, 175 F.3d at 1272.

[3] Sound Recording Act of 1971, Pub.L. No. 92-140, 85 Stat. 391; United States v. Moghadam, 175 F.3d 1269, 1272 (11th Cir. Fla. 1999).  “The important distinction between the first copyright statutes of 1831 and . . . the Sound Recording Act of 1971 is that these early statutes protected the reproduction of musical notation rather than the reproduction of actual sound.”  Id.

[4] Moghadam, 175 F.3d at 1272.  “‘Piracy,’ which refers to an unauthorized duplication of a performance already reduced to a sound recording and commercially released, is conceptually distinct from ‘bootlegging,’ which has been defined as the making of an unauthorized copy of a commercially unreleased performance.” Id. (internal citations omitted).

[5] Bootlegging is defined as “making or dealing in illicit goods such as unofficial recordings of copyrighted music.” Angela T. Howe, The Anti-Bootlegging Statute and the Collision of International Intellectual Property Law and the United States Constitution, 20 Berkeley Tech. L.J. 829, 831 (2005).

[6] Id. at 831.

[7] Uruguay Round Agreements Act § 512, 17 U.S.C. § 1101 (1994) (“Civil Penalties for Unauthorized Fixation of and Trafficking in Sound Recordings and Music Videos of Live Musical Performances”).

[8] Uruguay Round Agreements Act § 513, 18 U.S.C. § 2319A (1994) (“Criminal Penalties for Unauthorized Fixation of and Trafficking in Sound Recordings and Music Videos or Live Musical Performances”).

[9] Moghadam, 175 F.3d at 1272.

[10] See Id. at 1272.

[11] General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194 [hereinafter GATT].

[12] United States v. Martignon (Martignon), 492 F.3d 140, 150 (2d Cir. 2007); Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Results of the Uruguay Round, 33 I.L.M. 1125, 1197 (1994) [hereinafter TRIPS].

[13] TRIPS Art. 14(1).

[14] TRIPS Art. 14(5).

[15] TRIPS Art 1(1) (emphasis added).

[16] Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994).

[17] Howe, supra note 5 at 833; Martignon, 492 F.3d at 150.

[18] “The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  U.S. Const. art. 1, § 8, cl. 8.  This is often called the Copyright Clause. Eldred v. Ashcroft, 537 U.S. 186, 192 (2002).

[19] William McGinty, Not a Copyright Law? United States v. Martignon and Why the Anti-Bootlegging Provisions are Unconstitutional, 23 Berkeley Tech L.J. 323, 323.

[20] Moghadam, 175 F.3d at 1269.

[21] United States v. Martignon (Martignon I), 346 F. Supp. 2d 413 (S.D.N.Y. 2004); United States v. Martignon (Martignon II), 492 F.3d 140 (2d Cir. 2007).

[22] Kiss Catalog v. Passport Int’l Prods.(Kiss Catalog I), 350 F. Supp. 2d 823 (C.D. Cal. 2004); Kiss Catalog v. Passport Int’l Prods.(Kiss Catalog II), 405 F. Supp. 2d 1169 (C.D. Cal. 2005).

[23] Moghadam, 175 F.3d at 1271.

[24] “A work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is ‘fixed’ for purposes of this title if a fixation of the work is being made simultaneously with its transmission.  The Copyright Law Act, 17 USCS § 101 (1976).

[25] “‘Copies’ are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.” The Copyright Law Act, 17 U.S.C. § 101 (1976).

[26] Uruguay Round Agreements Act § 513, 18 U.S.C. § 2319A(a) (1994).

[27] U.S. Const. art. 1, § 8, cl. 8.

[28] Moghadam, 175 F.3d at 1273 (citing Feist Publ’ns, Inc. v. Rural Telephone Service, Co., 499 U.S. 340, 345 (1991)). “Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable.” Feist Publ’ns, 499 U.S. at 345-346.

[29] Moghadam, 175 F.3d at 1273.

[30] Id. at 1274.

[31] Id. at 1274.

[32] U.S. Const. art. I, § 8, cl. 3.

[33] Moghadam, 175 F.3d at 1275.

[34] Id. at 1275 (citing United States v. Wright, 117 F.3d 1265, 1270 (11th Cir.1997) (quoting United States v. Kenney, 91 F.3d 884, 888 (7th Cir. 1996))).

[35] Id. at 1275.  It might be possible to infer here that the reason the Moghadam court declined to answer the question of constitutionality under the Copyright Clause is because it did not think the power existed, or possibly because it could not find valid argument to validate the statute under the Copyright Clause. See infra note 119 and accompanying text.

[36] Moghadam, 175 F.3d at 1276. (citing United States v. Olin Corp., 107 F.3d 1506, 1509 (quoting Lopez, 514 U.S. 549, 561 (1995))).

[37] 18 U.S.C. 2319A(a)

[38] Moghadam, 175 F.3d at 1276 (“If bootlegging is done for financial gain, it necessarily is intertwined with commerce.”)

[39] Id. at 1276.

[40] World Trade Organization, What is the WTO?, available at http://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm

[41] Moghadam, 175 F.3d at 1276.

[42] Id. at 1277. Again, the Court is avoiding the question of whether Congress does in fact have power under the Copyright Clause, and is assuming there is no such power “aruguendo,” establishing it under the Commerce Clause instead.   Id.

[43] See Ry. Labor Executives’ Ass’n v. Gibbons, 455 U.S. 457, 468-69 (1982) (stating that the “Bankruptcy Clause itself contains an affirmative limitation or restriction upon Congress’ power,” and by using the Commerce Clause to uphold Bankruptcy laws, the Court would “eradicate from the Constitution a limitation on the power of Congress to enact bankruptcy laws.”).

[44] Moghadam, 175 F.3d at 1277 (citing Heart of Atlanta Motel v. United States, 379 U.S. 241, 250 (1964) (“[W]e have therefore not considered the other grounds relied upon. This is not to say that the remaining authority upon which it acted was not adequate, a question upon which we do not pass, but merely that since the commerce power is sufficient for our decision here we have considered it alone.”)); See, e.g., Authors League of America, Inc. v. Oman, 790 F.2d 220 (1986); Trade-Mark Cases, 100 U.S. 82 (1879).

[45] Moghadam, 175 F.3d at 1280 (stating that a live musical performance is an original work and that extending protection “furthers the purpose of the Copyright Clause to promote the progress of the useful arts by securing some exclusive rights to the creative author.”).

[46] Moghadam, 175 F.3d at 1281.

[47] United States v. Martignon (Martignon I), 346 F. Supp. 2d 413 (2004).

[48] Id. at 417.

[49] Id. at 417.

[50] Id. at 417.

[51] Id. at 429.

[52]United States v. Martignon (Martignon II) 492 F.3d 140, 153 (2007).

[53] Martignon I, 346 F. Supp. 2d at 419 (“[I]t is still essential to determine how to classify a statute in order to ensure that it does not run afoul of any express limitations imposed on Congress when regulating in the respective arena.”).

[54] Id. at 419-20. The Court also explains that it does not matter under what authority Congress thought it was acting, but only that there is in fact Congressional authority to so act. Id. “While Congress’ belief as to the power under which it enacts legislation is immaterial . . ., its placement of a statute provides a valuable window through which to view what Congress believed to be the central thrust of the statute.” Id. at 422; see also supra note 35 and accompanying text.

[55] Martignon I, 346 F. Supp. 2d at 420-21.

[56] Id. at 420.

[57]Id. at 420.

[58] Id. at 420 (citing County of Suffolk v. Experian Info. Solutions, Inc., 2000 U.S. Dist. LEXIS 10144, at *14-15 (2000).

[59] 18 U.S.C. 2319A(a).

[60] Martignon I, 346 F. Supp. 2d at 421.

[61] Id. at 421-22.

[62] Id. at 422.  The Court here does not refute that the bootlegging affects the interstate economy as the Modhadam court found, but only that it “does not believe that simply because a piece of legislation has commercial consequences, advantages, or even intentions, the legislation loses its ‘Copyright’ identity and becomes a ‘Commercial’ statute,” and therefore “not subject to the strictures of the Copyright Clause.” Id.

[63] Id. at 422.

[64] U.S. Const. art. 1, § 8, cl. 8 (emphasis added).

[65] Martignon I, 346 F. Supp. 2d at 423.

[66] Id. at 423.

[67] Id. at 423.

[68] Id. at 423.

[69] Id. at 423.  The Copyright Act, for example, addresses this limitation imposed by the Copyright Clause, and limits copyright protection to “the life of the last surviving author and 70 years after that author’s death.” 17 U.S.C. § 302.   The limitation is designed to avoid a monopoly on the copyright protection, so that the public may be able to benefit from the authorship as well, although at a later date.  Martignon I, 346 F. Supp. 2d at 423.

[70] Martignon I, 346 F. Supp. 2d at 423.

[71]Id. at 425.  “The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 5 U.S. 137, 176-177 (1803).

[72] Ry. Labor Executives’ Ass’n v. Gibbons, 455 U.S. 457 (1982).

[73] Id. at 467-68 (1982).  “A law can hardly be said to be uniform throughout the country if it applies only to one debtor and can be enforced only by the one bankruptcy court having jurisdiction over that debtor.” Id. at 471.

[74] Id. at 468-69 (1982).

[75] Martignon I, 346 F. Supp. 2d at 426. (“[I]n order to give meaning to the Constitution’s express restrictions, and to honor the concept of a government with limited powers, the wording of each Clause must be respected.”

[76] See supra notes 44 and accompanying text.

[77] Martignon I, 346 F. Supp. 2d at 427.

[78] Id. at 427; see Trade-Mark Cases, 100 U.S. 82 (1879).

[79] Martignon I, 346 F. Supp. 2d at 427-28 (noting that Authors League of America, Inc. v. Oman does not address the situation where Congress’ power to enact legislation under the Commerce Clause directly conflicts with the Copyright Clause); Authors League of America, Inc. v. Oman, 790 F.2d 220 (1986).

[80] Martignon I, 346 F. Supp. 2d at 429.  See United States v. Moghadam, 175 F.3d 1269, 1280 (11th Cir. Fla. 1999); but see supra note 45 and accompanying text.

[81] Kiss Catalog v. Passport Int’l Prods. (Kiss I) 350 F. Supp. 2d 823 (2004).

[82] Id. at 825.  The concert was filmed so that the audience could simultaneously see the band perform on-screen while they were onstage. Id.

[83] Uruguay Round Agreements Act § 512, 17 U.S.C. § 1101 (1994) (“Civil Penalties for Unauthorized Fixation of and Trafficking in Sound Recordings and Music Videos of Live Musical Performances”).

[84] The defendants had first argued that the anti-bootlegging claims were inconsistent  with the plaintiff’s copyright infringement claim, but the Court held that inconsistent pleading is allowable. Kiss I, 350 F. Supp. 2d at 828.  Additionally, the defendants argued that the 1976 concert footage was recorded before the time period covered by the statute.  Id. at 828.  The statute says that it “shall apply to any act or acts that occur on or after the date of the enactment of the Uruguay Round Agreements Act” in 1994. Id. at 828.  However, the Court here held that the acts that were to occur after 1994 referred to the distribution of the recordings, not the recording of the performance. Id. at 828-29.

[85] Id. at 828

[86] Id. at 829-30.

[87] Id. at 830-33; see supra notes 64-70 and accompanying text.

[88] Kiss I, 350 F. Supp. 2d at 836-37.

[89] Id. at 837.

[90] Kiss Catalog v. Passport Int’l Prods. (Kiss II), 405 F. Supp. 2d 1169 (2005).

[91] Id. at 1171-73.

[92] Id. at 1173-74 (citing United States v. Moghadam, 175 F.3d 1269, 1277 (11th Cir. Fla. 1999).

[93] United States v. Martignon (Martignon II) 492 F.3d 140, 153 (2007).

[94] Id. at 144.

[95] Id. at 145.

[96] Id. at 145.

[97] Id. at 144-45.

[98] Id. at 145-46.It is not clear from the wording of the Copyright Clause where the grant of power ends and where the limitation[s] [begin] . . . . This clause allows Congress ‘[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’  One could draw the line between grant and limitation[s] almost anywhere in this sentence. . . . We find no useful punctuation or structural clues in the text of the clause. . . .  The text of the Copyright Clause does not alone provide sufficient guidance for us to decide where to draw that line. . . . ” Id.

[99] Id. at 146.

[100] Id. at 146; see supra note 44 and accompanying text.

[101] See Ry. Labor Executives’ Ass’n v. Gibbons, 455 U.S. 457, 467-69 (1982) (holding that the statute violated the uniformity requirement of the Bankruptcy Clause and therefore Congress’ power could not properly invoked under the Commerce Clause even though bankruptcy and commerce are “intimately connected”).

[102] Martignon II, 492 F.3d at 146; Trade-Mark Cases, 100 U.S. 82 (1879).

[103] Heart of Atlanta Motel v. United States, 379 U.S. 241, 250 (1964).  In Heart of Atlanta, Congress enacted the Civil Rights Act of 1964, which prohibited racial discrimination in privately owned public accommodations.  The Civil Rights Act entitled everyone the same access to public accommodations, regardless of, among other things, race. Public accommodations was defined as operations which affect interstate commerce, and the Act further clarified that any hotel that provides lodging to transient guests is a place of public accommodations whose operations affect commerce. Congress’ authority was attacked in that they had violated the fourteenth amendment, since this was not state action being regulated, but private individual action. The Supreme Court upheld the statute under Congress’ Commerce Clause power to regulate local activities which might have a substantial, harmful affect on interstate commerce.  Id. at 247-49, 256-61.

[104] Martignon II, 492 F.3d at 147-48; Heart of Atlanta, 379 U.S. 241.

[105] Ry. Labor Executives’ Ass’n v. Gibbons, 455 U.S. 457 (1982).

[106] Id. at 468-69.

[107] Martignon II, 492 F.3d at 149.

[108] The Bankruptcy Clause provides that “Congress shall Power To  . . . establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.” U.S. Const. art. 1, § 8, cl. 4.

[109] U.S. Const. art. 1, § 8, cl. 8; Martignon II, 492 F.3d at 150.

[110] U.S. Const. art. 1, § 8, cl. 8; Martignon II, 492 F.3d at 151.

[111] The Copyright Act, 17 U.S.C. § 106 (1990); Martignon II, 492 F.3d at 151-52;Because the principal purpose of the Copyright Act is to encourage the origination of  creative works by attaching enforceable property rights to them, the contrast between the very limited right given to a performer by Section 2319A and the extensive rights given by Section 106 is significant.”  Martignon II, 492 F.3d at 151-52 (citing Matthew Bender & Co., Inc. v. West Publ’g Co., 240 F.3d 116, 122 (2d Cir. 2001) (internal citations omitted)).

[112] Martignon II, 492 F.3d at 152-53.

[113] Id. at 153.

[114] Id. at 152; United States v. Moghadam, 175 F.3d 1269, 1277 (11th Cir. Fla. 1999).

[115] Martignon II, 492 F.3d at 153.

[116] Valerie R. Sherman, United States v. Martignon Upholds Congressional Power to Enact “Copyright-Like” Legislation Through the Commerce Clause, 58 DePaul L. Rev. 185, 213 (2008).

[117] Id. at 213.   Some have argued that the anti-bootlegging statutes could have been enacted under the Treaty Power; however, Congress is limited in legislating under the Treaty Power. Id.; see Reid v. Covert, 354 U.S. 1 (1957) (holding that the United States may only act because of the Constitution, and therefore must act in accordance with it).

[118] See Sherman, supra note 116 at 214-15.

[119] Id. at 215.

[120] Id. at 215.   Allowing unauthorized fixation ‘leads to the preservation and dissemination of our cultural heritage,’ which ‘ensures that this cultural heritage is available to future generations.’ Id. (citing Brief for Internet Archive et al. as Amici Curiae Supporting Defendant-Appellee, United States v. Martignon, 492 F.3d 140 (2d Cir. 2007) (No. 04-5649-cr)).

[121] Aaron K. Perzanowski, The Penumbral Public Domain: Constitutional Limits on Quasi-Copyright Legislation, 10 U. Pa. J. Const. L. 1081, 1086 (2008).

[122] United States v. Moghadam, 175 F.3d 1269, 1280 (11th Cir. Fla. 1999).

[123] See supra note 32 and accompanying text.

[124] Moghadam, 175 F.3d at 1275; See, e.g., Gonzales v. Raich, 545 U.S. 1, 56-57 (2005) (Thomas, J., dissenting) (pointing out that “[o]ne always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce.” (citing United States v. Lopez, 514 U.S. 549, 600 (1995))); John P. Alexander, “In Your FACE”: Congressional Encroachment Under the Commerce Clause, 5 Geo. J.L. & Pub. Pol’y 181 (2007) (criticizing the over-federalization of crime under the commerce power).