Re: HR 354 Antipiracy Bill

On 8/31/99, Rod McCarvel <rod[_at_]seanet.com> wrote:
>
> Remember, Congress is limited to exercising only those powers
> which are granted by the Constitution (unenumerated powers are
> reserved). Thus, unless there is an explicit grant of authority
> in Article III or one of the amendments, Congress may not act.
>
> It can be argued that the power to "protect" (guess which side
> of this issue *I'm* on) databases comes from the Commerce Clause.
> However, I think that this argument may prove too much (as
> Commerce Clause arguments often tend to do). Remember also
> that the limitations on Congress' copyright authority (such as
> the idea/expression dichotomy, relevant I think in this discussion)
> are often cited as operating to protect First Amendment rights --
> and the First Amendment (if it can be shown to apply) trumps the
> Commerce Clause.

C.f., United States v. Moghadam, No. 98-2180 (11th Cir., May 19, 1999), in which a unanimous panel of the Eleventh Circuit held Congress had authority under the Commerce Clause to prohibit the unauthorized recording and distribution of live performances. The Court declined to decide whether the Copyright Clause authorizes Congress to extend copyright protection to unfixed works, but concluded that the Copyright Clause does not restrict Congress' authority to protect unfixed works under the Commerce Clause. The First Amendment wasn't addressed.

John Noble
<jnoble[_at_]dgsys.com> Received on Wed Sep 01 1999 - 12:10:35 GMT