Re: HR 354 Antipiracy Bill

On 9/2/99, Paul Heald <heald[_at_]arches.uga.edu> wrote:
>
> On Wed, 1 Sep 1999, John Noble <jnoble[_at_]dgsys.com> wrote:
> >
> > 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.

Granted, but the database protection legislation, unlike the antibootlegging statute at issue in Moghadam, does provide a term, at least in the last version I saw. I guess the question remains whether art.1, sec.8 also imposes an originality requirement that would cabin Congress' commerce clause powers.

John Noble
<jnoble[_at_]dgsys.com> Received on Fri Sep 03 1999 - 13:22:51 GMT