Copyright and the Commerce Clause

There is an interesting 11th Circuit case which addresses, without fully resolving, the relationship between the Copyright Clause and the Commerce Clause, or whether Congress can enact a quasi-copyright statute under the latter clause that would not pass muster under the Copyright Clause. This is especially pertinent in light of the two database bills pending before the US House of Representatives (see National Law Journal, July 26, 1999, at B1, B4).

In United States v. Moghadam, 175 F.3d 1269 (11th Cir. 1999), the defendant was convicted under the anti-bootlegging statute, 18 USC 2319A, which was enacted as part of the Uruguay Round and TRIPS. This criminal statute proscribes reproduction and transmission of otherwise unfixed musical performances ("bootlegging").

The problem under the Copyright Clause is that this criminal statute
(1) extended copyright-like protection to unfixed works (live musical
performances not officially recorded by the performers), thus bypassing the fixation requirement; and (2) had no time limit, thus bypassing the "limited times" requirement.

Unfortunately for copyright law purists, the court neatly bypassed these issues, since the defendant failed to preserve or raise this argument on appeal (pages 1281-82 and footnotes 9, 15 and 17 of the opinion). Instead, the Eleventh Circuit turned to the Commerce Clause, and found that since bootlegging was an intrastate activity that substantially affected interstate commerce (US v. Lopez, 1995), it fell within the scope of allowable Commerce Clause legislation
(pages 1275-77). This did not controvert the Copyright Clause,
since "what cannot be done under one of them may very well be doable under another" (page 1277, citing Heart of Atlanta Motel, S.Ct. 1964, as an exemplar of this principle).

What may be needed to resolve this is another criminal defendant under 2319A who will properly plead these issues, both at trial and on appeal.

There's a lot more to chew on in this meaty opinion, and I encourage the listserv readers to look it up (this opinion should also be on the 11th Circuit's website). Indeed, the pending database bills should have no problem flying through under the Commerce Clause, since fixation is not a problem with databases and the database bills
(at least last year's versions) had specific time limits, so the
"limited times" also should not be a problem.

Alan Kabat
Washington D.C.
<alankabat[_at_]aol.com> Received on Wed Jul 21 1999 - 01:59:30 GMT