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2nd Circuit Upholds Congress' Power to Pass Anti-Bootlegging Law
New York Law Journal
June 14, 2007
A law that criminalizes the bootlegging of live performances was a valid exercise of congressional power under the Commerce Clause, the 2nd U.S. Circuit Court of Appeals ruled on June 13.
Rejecting arguments that Congress exceeded its authority under the Copyright Clause, the 2nd Circuit said the anti-bootlegging law "differs significantly" from the Copyright Act and was therefore "not enacted under the Copyright Clause."
The 2nd Circuit reversed Southern District of New York Judge Harold Baer in United States v. Martignon, 04-5649-cr. Baer had dismissed the indictment brought against Jean Martignon, who had been charged with selling illegally recorded live performances at Midnight Records, a small store he operated on 23rd Street in Chelsea.
Judges Rosemary Pooler and Robert Sack and Eastern District Judge Nicholas Garaufis, sitting by designation, decided the appeal, which dealt with "a recurring issue in constitutional law: the extent to which Congress can use one of its powers to enact a statute that it could not enact under another of its arguably relevant powers."
Pooler wrote the opinion.
Martignon was charged with violating 18 U.S.C. §2319A(a)(1) and (3), which was one of the anti-bootlegging provisions enacted by Congress in 1994 following the Uruguay Round of international trade talks.
To Martignon and Baer, the indictment set up a conflict between the Commerce Clause, Article I §8, clause 3 and the Copyright Clause, Article I §8, clause 8, which gives Congress the power to "promote the Progress of the Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
Baer said, in United States v. Martignon, 346 F.Supp. 2d 413 (S.D.N.Y 2004), that the bootlegging law was not validly enacted because it gave rights to performers that were unlimited in time and did not require performers to reduce their performances to a fixed form.
He also ruled that Congress could not enact "copyright-like legislation" under the Commerce Clause where it conflicts with the limitations imposed by the Copyright Clause.
"Congress may not, if the Copyright Clause does not allow for such legislation, enact a law under a separate grant of power, even when that separate grant provides proper authority," he said.
But writing for the circuit, Pooler said "After examining the statute, its background, the two relevant constitutional clauses, and applicable precedent, we conclude that Congress was free to act under the Commerce Clause to enact §2319A(a)(1) and (3)."
In arguments before the circuit, the government conceded that the act was not passed pursuant to the Copyright Clause. It also argued Baer was wrong because that clause is simply an affirmative grant of power that does not place limitations on other congressional powers. As a fallback, it said that, even assuming the clause places limitations on other exercises of power, the criminal statute would escape those limitations because the clause only applied to "fixed" creative works or "writings."
'CRIMINAL TRESPASS'
Pooler and her fellow panelists, however, while viewing the Copyright Clause as a mix of a grant of power and limitations, also said that the "Supreme Court has indicated that Congress can sometimes enact legislation under one constitutional provision that it could not have enacted under another."
The court looked at a series of U.S. Supreme Court cases to unravel the issue, including Ry. Labor Executives Ass'n v. Gibbons, 455 U.S. 457 (1982).
In Gibbons, the Supreme Court invalidated part of the Rock Island Railroad Transition and Employee Assistance Act (RITA), because it directed that the bankruptcy trustee pay up to $75 million to Rock Island employees who were not hired by other carriers.
The Supreme Court said that "if we were to hold that Congress had the power to enact nonuniform bankruptcy laws pursuant to the Commerce Clause, we would eradicate from the Constitution a limitation on the power of Congress to enact bankruptcy laws."
"The Gibbons court considered primarily what RITA did, not Congress' belief as to which clause authorized its action," Pooler said.
She said "RITA mandated that an existing bankruptcy proceeding be handled differently from any other bankruptcy in the United States" and also "altered the statutory priorities for paying debts and the administrative scheme contemplated by the Bankruptcy Code. It was a bankruptcy law."
But here, Pooler said, the anti-bootlegging provisions cannot be considered copyright laws.
Section 2319A "does not create and bestow property rights upon authors or inventors, or allocate those rights among claimants to them," she said. "It is a criminal statute, falling in its codification ... between the law criminalizing certain copyright infringement and the law criminalizing 'trafficking in counterfeit goods or services.' It is perhaps, analogous to the law of criminal trespass."
Absent any limitations imposed by the Copyright Clause, Pooler said that "Given the nexus between bootlegging and commerce ... Congress would have had the power to enact §2319A(1) & (3) under the Commerce Clause."
Assistant U.S. Attorneys Samidh Guha and Peter Neiman represented the government.
David Patton of The Legal Aid Society's Federal Defender Division represented Martignon.
Patton said, "Different parties have different reasons for thinking this is a big issue. Certainly the recording industry always takes the position that it wants to have greater control over intellectual property and the libraries and the law professors see this statute from our perspective -- as being part of a broader pattern of limiting public access to artistic works -- a further restriction on the material in the public domain that is certainly not necessary or beneficial to the general public."
The case drew the interest of several groups on both sides of the argument on the freedom to copy music. Among those filing amicus briefs in support of the government were Association of American Publishers, Reed Elsevier Inc., Warner Music Inc. and National Academy of Recording Arts & Sciences.
Amici on behalf of Martignon included a number of intellectual property professors and the American Association of Law Libraries.
