Court Finds Anti-Bootlegging Statute Unconstitutional

Jean Martignon was indicted by a federal grand jury on one count of violating § 2319A, because he sold unspecified “unauthorized recordings of live performances” to the public through his business, Midnight Records. In his motion to dismiss the indictment, the defendant argues that § 2319A is unconstitutional on the grounds that it exceeds the authority vested in Congress by the Copyright Clause of the Constitution (as well as on two other ground, not considered because the Court finds his first argument persuasive). § 2319A was passed in 1994 as the United States’s implementation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), which was part of an international trade treaty, the URAA. Each of the 111 countries that signed the URAA, including the U.S., was required to pass legislation to implement TRIPs, and 18 U.S.C. § 2319A fulfills the U.S.’s obligation toward that end. The opinion notes that the U.S. was a driving force behind the adoption of TRIPs.

The unique issue facing this Court was whether Congress can enact legislation under one power, when that legislation directly contradicts another express power in the Constitution. To resolve this, the Court considered three issues. First, whether § 2319A is primarily a copyright law, or a commercial regulation law. Second, whether it falls under Congress’s accepted Copyright Clause powers. Third, whether Congress could enact similar legislation under its Commerce Clause powers, if it conflicts with the fixation and durational limitations of the Copyright Clause.

The Court gives several reasons for its finding that § 2319A is “copyright-like” legislation, such as the meaning of a “plain reading” of the statute and evidence that Congress believed it was acting under its Copyright Clause powers. It further finds that the Copyright Clause does not empower Contress to enact § 2319A because that statute violates the Clause’s authority to grant protection to “Writings” for “limited Times.” Bootleg recordings are unauthorized and thus never “fixed,” precluding classification as “writings.” Furthermore, § 2319A’s failure to specify a time limit seems to imply that its duration is unlimited, in violation of the “limited times” restriction.

Finally, the Court concludes that Congress may not do indirectly (via the Commerce Clause), what it is forbidden to do directly (under the Copyright Clause). The Court notes that the Commerce Clause is an affirmative grant of power only, without express restrictions, while the Copyright Clause includes both a grant of authority to Congress and a limitation on that authority. It analogizes this case to a Supreme Court case, Ry. Labor Execs. Ass’n, 455 U.S. 457, in which legislation that Congress passed under its Commerce Clause powers but which was specifically forbidden by the Bankruptcy Clause was found unconstitutional. The Court also distinguishes two precedents, the Trade-Mark Cases, 100 U.S. 82 (1879) and Authors League of America, Inc., etc al., 790 F.2d at 224, from the current case. In the Trade-Mark Cases, the Supreme Court was willing to consider whether trademark legislation was valid under the Commerce Clause after it had been deemed invalid under the Copyright Clause – but the reason it was not allowed under Copyright Clause was that it fell outside the scope of that grant of power, and not because the Clause expressly forbade such legislation. In Authors League, the Second Circuit held that the 1976 Copyright Act’s “manufacturing clause,” which denied copyright protection to foreign-manufactured literary works, was justified under the Commerce Clause even though the Copyright Act as a whole was enacted under the Copyright Clause. In that case, denying protection for foreign literary works on grounds of the Commerce Clause was found acceptable because the purpose of the “manufacturing clause” was to foster the growth of an American industry, a distinct goal consistent with the Commerce Clause not contrary to the Copyright Clause. The Court reasons that in neither precedent was an express limitation specified by one grant of power circumvented by utilizing a different grant of power.

Prior to Martignon, the only case that had attempted to challenge the constitutionality of the anti-bootlegging statute was United States v. Moghadam, 175 F.3d 1274. The Martignon court takes great care to emphasize that the Moghadam ruling upholding § 2319A was very narrow, and not necessarily inconsistent with this ruling, noting the defendant in that case had argued only that live performances were not “Writings,” and did not assert the statute’s lack of durational component.

By finding that Congress may not pass legislation indirectly that it is forbidden to pass directly, the court in Martignon has signaled its willingness to limit Congress’s ability to regulate copyright-related matters to a fairly narrow constructionof the Copyright Clause. Issues remain, however: as of a week ago, the U.S. ha s filed notice of appeal in the case, and the seemingly contrary Moghadam holding in the 11th Circuit will at some point need to be reconciled with Martignon.

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