As we await the Second Circuit's opinion in the Martignon case (and I await it with great trepidation), all has not been quiet with the bootleg statute (17 USC 1101). Readers will recall that there was a civil challenge in Kiss Catalog, Ltd. v. Passport Int'l Prods., 350 F. Supp.2d 823 (C.D. Cal. 2004), by Judge Rea. Judge Rea's opinion was, in my view, not much more than a warmed-over rehashing of Judge Baer's atrocious handiwork in the Martignon case.
After Judge Rea's opinion, the United States, which was not a party to the Kiss case, and was not aware of it, sought leave to intervene, and then for reconsideration. Judge Rea granted the request and then died. The case was transferred to Judge Dale Fischer, who handed down his opinion on the motion for reconsideration on December 21, 2005. He found the statute to be constitutional.
The opinion began with a whopper of an error which made me worried: that Congress believed it was acting under the Copyright Clause. Whatever one may think of the merits of the provision, that is simply false. There is no doubt we knew we were legislating under the Commerce Clause. Graciously, however, Judge Fischer indicated that "Congress's intent is not dispositive;" he had an obligation to try and save us from ourselves by scouring the Constitution for authority we may have overlooked, like: the Commerce Clause. (That damn Article I is just too long for Congress to have noticed it, I guess).
Sarcasm aside, Judge Fischer did find that the provision is within Congress's Commerce Clause power, especially under Gonzales v. Raich, 125 L.Ed 2195 (2005) and Lopez. He went on to also discuss, in dicta, whether the statute is inconsistent with the Copyright Clause, and agreeing with the Government, held that nothing prohibits Congress from protecting similar things in different ways, "so long as the Constitution allows it do so," discussing Railway Labor Executives, and in any event finding no fundamental conflict because the subject matter of the two statutes is different.
While I wish some court, somewhere will understand that we always knew we were acting under the Commerce Clause, I am very happy with the outcome.