Re: HR 354 Antipiracy Bill

Yes, but, see below

On Wed, 1 Sep 1999, John Noble <jnoble[_at_]dgsys.com> wrote:
>
> 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. .

     But Judge Anderson suggested strongly that the lack of a time term limitation for protection might render the anti-bootlegging statute unconstitutional, thereby intimating that the I.P. clause DOES serve to restrain Congress' commerce powers. The defendant, however, failed to make the argument. Since Judge Anderson, a very bright guy, is not known for issuing broad dicta. I rather see the case as an endorsement of the notion that Congress must take i.p. clause limitations very seriously indeed.

Paul J. Heald
Allen Post Professor of Law
University of Georgia
School of Law
Athens, Georgia 30602
706-542-7989

heald[_at_]arches.uga.edu Received on Thu Sep 02 1999 - 17:22:50 GMT