Academic journal article Harvard Law Review

Constitutional Law - Copyright Clause - Second Circuit Upholds Perpetual Anti-Bootlegging Protection against Copyright Clause Challenge: United States V. Martignon

Academic journal article Harvard Law Review

Constitutional Law - Copyright Clause - Second Circuit Upholds Perpetual Anti-Bootlegging Protection against Copyright Clause Challenge: United States V. Martignon

Article excerpt

As constitutional challenges to copyright laws struggle through adolescence, (1) courts have begun to gauge the external force of the Copyright Clause's limits (2) on Congress's other enumerated powers. (3) Recently, in United States v. Martignon, (4) the Second Circuit considered whether Congress could enact under the Commerce Clause a criminal anti-bootlegging statute that was concededly inconsistent with the Copyright Clause's limited duration requirement. The court held that the statute was not subject to Copyright Clause scrutiny because it did not allocate property rights in expression. (5) In fact, however, the statute did provide property rights in the form of a right to authorize recordings, and so the court missed an opportunity to develop a framework for the Copyright Clause's application. Copyright Clause limits should apply to any law that allocates exclusive rights in expression in order to create market incentives to produce such expression. Because the anti-bootlegging statute was such a law, the court should have struck it down.

In September 2003, law enforcement agents arrested Jean Martignon for selling unauthorized recordings of live performances from his New York City store, through a catalog, and over the Internet. (6) After his arrest, Martignon was indicted under 18 U.S.C. [section] 2319A, (7) which prohibits the fixation of "sounds or sounds and images of a live musical performance in a copy or phonorecord," or the distribution of such recordings, "without the consent of the performer." (8)

In the U.S. District Court for the Southern District of New York, Martignon moved to dismiss the indictment, arguing that [section] 2319A's perpetual protection of live recordings exceeded Congress's Copyright Clause power to "secur[e] for limited Times to Authors ... the exclusive Right to their ... Writings." (9) The government conceded that Congress could not enact perpetual copyright protection under the Copyright Clause (10) but argued that the statute was within Congress's commerce power. (11) The court, however, interpreted Railway Labor Executives' Ass'n v. Gibbons (12) to preclude Congress from enacting indirectly under one constitutional provision what was directly prohibited by another. (13) Holding that [section] 2319A's perpetual protection was inconsistent with the Copyright Clause's "limited Times" provision, the court dismissed the indictment. (14)

The Second Circuit vacated and remanded. (15) Writing for a unan-imous panel, Judge Pooler (16) explained that under the Trade-Mark Cases (17) and Heart of Atlanta Motel, Inc. v. United States, (18) one constitutional provision's failure to empower Congress does not foreclose appeal to another. (19) Contrary to the district court's interpretation, Gibbons held not that limits on one enumerated power apply externally to all others, but merely that Congress cannot escape the uniformity requirement of the Bankruptcy Clause by enacting bankruptcy laws under the Commerce Clause. (20) Although [section] 2319A was "copyright-like," (21) it would be subject to Copyright Clause scrutiny only if it were "a copyright law in the sense that [the law in Gibbons] was a bankruptcy law." (22)

The court cited text and history to explain that any copyright law must "allocate property rights in expression." (23) The Copyright Clause "empowers Congress to 'secur[e] ... Right[s],'" (24) and all early copyright laws "allocate[d] property rights in expression." (25) But, according to the court, the anti-bootlegging statute was different: "[It] does not create and bestow property rights upon authors or inventors. ... Rather than creating a right in the performer him-or herself, it creates a power in the government to protect the interest of performers from commercial predations." (26) Because [section] 2319A empowered the government rather than private performers, it did not allocate property rights and was therefore not subject to Copyright Clause scrutiny. …

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