Wine, The Constitution, and Database Legislation

For those who own a "Free the Grapes" t-shirt (and as a Northern Californian from Tiburon living in snowy Connecticut I do), yesterday's 5-4 Supreme Court decision in Granholm v. Heald was cause to uncork a good bottle of wine (red, of course, see accompanying photo). But does the opinion have any relevance to ongoing efforts to enact database legislation under the Commerce Clause? Maybe.

Granholm was a dormant Commerce Clause case (at least that was the question accepted for cert. and quoted approvingly in Justice Kennedy's majority opinion). Unlike the database proposals, which would be federal if enacted, Granholm dealt with the power of states to act in a discriminatory way toward out-of-state shipments of wine, the Twenty-First Amendment (repealing Prohibition), and federal legislation passed before that Amendment.

Nevertheless, the database proposals do raise fundamental questions about the limitation of one constitutional power on another, for example, the Copyright Clause on the Commerce Clause (a "dormant Copyright Clause" perhaps). I explored this question in a 1999 law review article, "The Enumerated Powers Doctrine and Intellectual Property: An Imminent Constitutional Collision," 67 George Washington L. Rev. 359. In that article I first noted the Supreme Court's statement in Feist that there is a constitutional right to copy unprotected material. I wondered whether this meant only when Congress is legislating under the Copyright Clause, or whether it was a broader, structural statement indicating that Congress could not pass legislation extending copyright-like protection under the Commerce Clause. For that possibility, I relied on Railway Labor Executives Assn. v. Gibbons, 455 U.S. 457 (1982), which struck down an attempt to circumvent the constitutional uniformity requirement in the Bankruptcy Clause by legislating under the Commerce Clause.

Some of my colleagues, such as the great Eugene Volokh, disagree with me. But aside from Granholm, subsequent to my article, there have been three opinions on the 1994 bootleg statute (unauthorized taping of live musical performances and the subject of tomorrow's posting) and one on the DMCA that have taken the argument seriously. One, United States v. Moghadam, is a circuit opinion, 175 F.3d 1269 (11th Cir. 1999), involving the the criminal bootleg provision, 28 USC 2319A. The legislation was enacted under the Commerce Clause. Citing Railway Labor Executives, the court of appeals agreed the opinion "suggests that in some circumstances the Commerce Clause cannot be used to eradicate a limitation placed upon Congressional power in another grant of power," id. at 1279-1280, and noting a tension with earlier Commerce Clause cases such as Heart of Atlanta Motel. The bootleg statute passed muster according to the circuit because live musical performances weren't deemed writings and because there was no constitutional purpose of permitting their reproduction, as there is with facts.

The bootleg statute was, however, held unconstituional in two district court opinions, both of which relied on Railway Labor Executives, United States v. Martignon, 346 F. Supp.2d 413 (SDNY 2004)(holding that Congress may not legislate under the Commerce Clause that which it cannot under the Copyright Clause); Kiss Catalog v. Passport Int'l Prods., 350 F. Supp.2d 823 (CDCAL 2004)(same).

By contrast, in United States v. Elcom Ltd., 203 F. Supp.2d 1111, 1138 (C.D. Cal. 2002), a case under the DMCA, even the Government, according to the court "agree[d], that as broad as Congress' Commerce Clause is, Congress may not use that power in such a way as to override or circumvent another constitutional restraint," citing Railway Executives. (The court rejected the argument that the DMCA did exceed Congress' power).

The above cases illustrate, at a minimum, that the relationship of the Copyright and Commerce Clauses is more complex than previous naysayers wish it to be. For example, few would deny that if Congress granted protection to public domain works in a form exactly like that int he Copyright Act, but under the Commerce Clause, the effort would be struck down. The real cases will be much harder, but line drawing at least accepts the principle that there is a problem.