“Copyright-Like” Statute that Exceeded Congress’ Powers Under the Copyright Clause Is Valid Under the Commerce Clause

United States v. Martignon, No. 04-5649-cr (2d Cir. June 13, 2007) (Pooler, Sack, CJJ., and Garaufis, DJ).

In 2004, Jean Martignon was charged under 18 U.S.C. § 2319A, which makes it a crime to manufacture, publish or distribute “bootleg” recordings of musical performances; that is, those made without the consent of the performers. Martignon moved to dismissed the indictment, arguing that the statute violated the Copyright Clause, because live performances were unfixed, and hence not “writings,” and because the statute protected them in perpetuity, rather than for a limited time. The district court agreed, and granted the motion. Martignon also made a First Amendment argument, which the court did not get to.

The Appellate Court’s Decision

On the government’s appeal, the Court of Appeals reversed. Since the government conceded that Section 2319A could not have been enacted under the Copyright Clause, the court had to decide whether Congress had the authority to enact the statute under the Commerce Clause. This question turns on whether the Copyright Clause is an exclusive grant power that limits Congress’ ability to regulate creative works under any other grant of authority.

The Supreme Court has sometimes held that Congress can enact legislation under one constitutional provision that it could not have enacted under another, but has also held that, in some circumstances, it cannot. After a detailed analysis of those precedents, the court here concluded that those cases would “allow the regulation of matters that could not be regulated under the Copyright Clause in a manner arguably inconsistent with that clause unless the statute at issue is a copyright law.”

It went int to conclude that Section 2319A is not a “copyright law.” All copyright laws share a common feature – they create, bestow, or allocate property rights to or among authors or inventors. Section 2319A does not – it is a criminal statute that “creates a power in the government to protect the interest of performers from commercial predations.”

Thus, since Section 2319A is not a copyright law, and is a valid exercise of Congress’ Commerce Clause power – it regulates activity that is commercial or economic – it is constitutionally valid.

What Next?

The case now goes back to the district court to consider the First Amendment argument.