Thursday, June 14, 2007

Martignon Reversed

Twenty-three months after oral argument, the Second Circuit has issued its opinion in United States v. Martignon, 2007 WL 1695089 (2d Cir. June 13, 2007), reversing Judge Baer's ruling of unconstitutionality, and upholding 28 USC 2319A(a)(1) and (3). (Section 2319A(a)(2) - the transmission section - and the civil provisions in chapter 11 of title 17 were not addressed). While I am relieved at the outcome (as far as it went), I do not rejoice in the opinion itself: it is as if the second year law students who wrote Judge Baer's opinion were tasked with drafting an opinion coming out the other way.

To recap: in the 1994 GATT implementing legislation, in response to Article 14(1) of TRIPs, Congress added a new chapter 11 in title 17 as well as criminal provisions in title 28 dealing with the unauthorized fixation of live musical performances, as well as the transmission of such unauthorized fixations and sale of physical embodiments of the fixations. These provisions were an exercise by Congress of its power under the Commerce Clause. Congress never for one second believed it was enacting the legislation under the power granted it under the Copyright Clause, and for this reason: it was Congress's judgment, based upon Supreme Court precedent and statements made by the Register of Copyrights during the enactment of the 1976 Act that the term "writings" in the Article I, section 8, clause 8, is limited to fixed works, meaning original works of authorship fixed with the permission of the creator. I know this because I was there and was the principal drafter of the provisions. Textual support for this is found in the statute. Section 1101, in referring to remedies for the civil provisions states that remedies are available "to the same extent as an infringer of copyright." This provision clearly indicates that the act is not a copyright act: if it was, Congress would have simply said that the remedies are those provided for in chapter 5 of title 17.

It is of course possible that Congress could draft something that walks, talks, and looks like a copyright statute, and it is fair enough in such a case to see if, in that event, there is some perceived conflict with Congress's Article I, section 8, clause 8 powers. In the case of the bootleg provisions, the perpetual nature of the protection presented such a perceived conflict. But the perception of a conflict doesn't mean there is one. In the case of the bootleg provisions, there could only be a true conflict if one believes the Supreme Court, Congress, and the Register of Copyrights were wrong that the Constitutional term "writings" requires the authorized fixation of the creator. I was of the view in 1994 and remain of the view that "writings" does require the authorized fixation of the creator. Defendant and his amici, in my view, fundamentally misunderstood the issue in the case and the Constitution by focusing on whether the performance was "original," in the sense of possessing the requisite modicum of creativity. It matters not at all that a performance if fixed with permission would be original. What matters is that to be a writing within the meaning of the constitution, there has to be a fixation, with the permission of the creator. Nor can an unauthorized fixation convert an unfixed performance into a writing: indeed, it is a signal failure of the defendant and his amici that they failed to distinguish between the very act that gave rise to liability - the unauthorized fixation - and the unfixed performance. To them, by engaging in an unauthorized fixation of a performance (or any downstream acts based on the initial fixation), the whole "writings" issue goes away simply by virtue of the unauthorized act. The confused the violation with the performance itself.

How did the Second Circuit deal with this, the central issue? Not at all. The court of appeals never once analyzed the text of the statute. That's a very big omission. The court was interested only in the "dormant" Copyright Clause issue: does the Copyright Clause limit Congress's power to act under the Commerce Clause? Not in all cases, as shown in the case of the trademark act after the Supreme Court held the first act unconstitutional in The Trademark Cases, 100 U.S. 82 (1879). That first act was held unconstitutional because it was believed to have been enacted under the Copyright Clause and extended rights to unoriginal material.

Under the Trademark Cases and Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), the court of appeals drew "the not surprising conclusion that if a statute is outside even the most generalized interpretation of the scope of the Copyright Clause, i.e., it is not a copyright law, it can be regulated under the Commerce Clause." The conclusion is not surprising because it is circular and thus cannot provide any analytical heft. Railway Labor Executives Association v. Gibbons, 455 U.S. 457 (1982) was distinguished on this ground - that the statute at issue there was in truth a bankruptcy statute enacted under the Commerce Clause and one that conflicted with the uniform limitation in the constitutional bankruptcy clause. From Gibbons, the Martignon court of appeals concluded: "Congress exceeds its power under the Commerce Clause by transgressing limitations of the Copyright Clause only when (1) the law it enacts is an exercise of the power granted Congress by the Copyright Clause and (2) the resulting law violates one or more specific limits of the Copyright Clause. "

This is not much of a test: how does one know if the law is an exercise of a power granted to Congress by the Copyright Clause and whether it violates one of the specific limits in that clause? For example, the Lanham Act prohibits the copying of one's trademark (and that trademark could also be a copyrighted work), with no limit on protection, thereby violating one of the specific limits of the copyright clause. The court of appeals attempts to avoid casting doubt on the Lanham Act by saying it has "additional characteristics that [don't] make it an exercise of Copyright Clause power," footnote 6. But this merely elides the question of what is an exercise of Copyright Clause power. In the case of trademarks one might say that the essence of the right is consumer confusion arising from copying the trademark; in the case of bootlegs, it is the unauthorized fixation of an unfixed work.

Since the court of appeals upheld Sections 2319A(1) and (3), why aren't those sections an exercise of Copyright Clause power? Bizarrely, the court of appeals focused on the word "securing" in that clause. What might that have to do with whether a "writing" needs to be fixed with the authorization of the creator? Nothing, of course. But to the court of appeals (which fatuously described its approach as a "textual approach"), securing means creating, bestowing, or allocating, and therefore "the issue becomes whether Section 2319A creates, bestows, or allocates rights." The answer is obviously, yes. But wait, the answer is no, it doesn't. According to the court "[r]ather than creating a right in the performer him or herself, it creates a power in the government to protect the interest of performers from commercial predations. Section 2319A does not grant the performer the right to exclude others from the performance - only the government can do that. ... Neither may the performer transfer his or her interests under Section 2319A to another. ... Section 2319A only prevents others from doing something without the authorization of the protected person. It may therefore protect the property interests an individual holds by virtue of other laws, but it does not itself allocate those interests. Section 2319A is not a law 'secur[ing] rights,' or is it a copyright law."

One can only express shocked amazement at such an analysis. Under this approach, a civil provision that is blatantly unconstitutional can provide the basis for a constitutionally valid criminal prosecution (and see the lame effort in footnote 7 to avoid the obvious consequence of this). And, under this analysis, the civil provision in chapter 1101 is most assuredly unconstitutional since it does grant a right to exclude others and permits transfer of the right to exclude. One can expect a petition for rehearing en banc and a petition for certiorari to be filed, but to think we waited 23 months for this is depressing enough.

Finally, it should be noted that the court of appeals has given the defendant the chance to argue a violation of the First Amendement: fat chance given the court of appeals' characterization of the statute.

30 comments:

Aaron said...

The court's analysis is, to say the least, deeply unsatisfying. Our agreement on that point - despite our sharp division on the ultimate issue of the statute's constitutionality - is a testament to the quality of the court's reasoning, or lack thereof.

For a slightly different perspective, I humbly urge your readers to see: http://substantialsimilarity.org/?p=13

William Patry said...

Thanks, Aaron. I indeed read your thoughtful post and encourage others to. We are united in our disbelief that this is the result of 23 months of deliberations.

Lawnun said...

It struck me, especially after reading the analysis towards the end, that what the court is attempting to do is articulate a back-handed entree into moral rights land.

Sayeth the court: "Section 2319A does not grant the performer the right to exclude others from the performance ... Neither may the performer trasnfer his or her interests under Section 2319A to another ... Section 2319A only prevents others from doing something _without the authorization_ of the protected person."

Sounds an awful lot like moral rights that protect how a work is altered or displayed (in this case, by taking the performance and recording it).

Thoughts?

Anonymous said...

Well this is pretty disappointing. 1101 is pretty clearly unconstitutional due to the copyright clause. After all, if you could always avoid the limits of the copyright clause by using the commerce clause, the copyright clause would become meaningless. That simply isn't a sensible outcome. The argument based on the Trademark cases is a non-starter, though, as the subject matter is completely different.

Hopefully it'll get appealed and reversed.

William Patry said...

I of course disagree that the civil part or the criminal part is unconstitutional, but let's have a court that genuinely discusses the real issue: does the term "writings" require an authorized fixation or not? If it does, then I think the statute is constitutional because it is outside of the scope of the Copyright Clause and thus can hardly be said to conflict with it. If does not, then the statute is unconstitutional.

Anonymous said...

At least right now, the most disappointing part for me is the court's treatment of the rational basis test. The court appears to say that a content-based criminalization of expression may only be struck down if there's no rational basis for it.

Imagine if the court had opined, ' It would have been eminently reasonable for Congress to conclude that the sale and distribution of bootleg news will have a substantial interstate effect on the sale and distribution of legitimate newspapers.'

Chris said...

It's possible that even if "writings" means an authorized fixation, the Dormant Copyright Clause could still make this unconstitutional. It all depends on how wide the dormant field is around the Copyright Clause. Clearly, when the clause says, "for limited times," the dormant part says "not for unlimited times." But, why is it that when the clause says "writings," the dormant part doesn't say "not for things that aren't writings (or things like them)"?

That might implicate trademark, but there may be enough other differences to insulate trademark from this slightly more expansive interpretation of dormant copyright.

Anonymous said...

Prof. Patry--
the real issue: does the term "writings" require an authorized fixation or not?

That doesn't seem like the real issue to me. I think that the issue is that all federal laws concerning exclusive rights in creative works fall under the copyright clause. The clause then prohibits Congress from passing certain kinds of laws with regard to that subject matter. That the copyright clause is limited doesn't mean that the commerce clause can step in to evade those limits. If it could, why have the limits to begin with? For the limits to be meaningful, they have to actually limit what Congress can do.

Meanwhile, I'd say that 'writings' does require authorized fixation. If someone completely unconnected to the author writes the work, then they aren't really "their [the author's] ... writings."

That's important, because that is a big part of what makes it unconstitutional: Congress can't do this under the copyright clause, and can't create copyright-esque laws by any other means.

William Patry said...

I think you make a good point Chris. For example, I think that a state law that preempts the mere copying of facts is preempted under the Supremacy Clause even though Congress can't enact legislation protecting facts (take that database advocates!). But I do think that unfixed things are qualitatively different and the courts have for quite a time too, hence the existence of common law protection.

Fred von Lohmann said...

Bill, the portion of your argument that I've never understood is your insistence on an *authorized* fixation as the threshold for a "writing." Why is an unauthorized fixation any less a "writing" in constitutional terms (Title 17, of course, makes this distinction between authorized and unauthorized fixations, but how is that relevant to the constitutional issue)?

After all, here defendant Martignon was only indicted for violating the distribution prohibition -- everyone conceded he did not *make* the recordings.

So we have a statute that directly regulates the distribution of *fixed* recordings. That would appear to fall within the heart of the Copyright Clause.

And, if you insist that unauthorized fixations are not writings and thus entirely alien to the body of copyright, is it your view that states would be free to regulate unauthorized fixations however they see fit, regardless of federal copyright policies?

Extra credit question: does the Second Circuit analysis mean that DMCA sections 1203 and 1204 are not copyright statutes, and thus exempt from any limitations in the Copyright Clause?

William Patry said...

Fred, you are certainly correct that while the Copyright Act proper insists on fixations being authorized for protection under the Act to kick in, the Constitution doesn't do so facially. I have always regarded the statute as continuing a common understanding about the Constitutional term "writings," and from an era where there was bifurcated protection.

For example, where a work was unpublished and protected perpetually under state law, it was only an authorized publication that would trigger the obligation to comply with the federal statute (e.g., notice, registration) upon pain of forfeiture of all rights, state and federal. I believe the Martignon crew's position must be understood as contrary to this well-established case law: under their view whether something is authorized or not doesn't matter.


Yes, prior to chapter 11 states were free to do prohibit unauthorized fixations of live musical performances and did, as in the New York Metropolitan opera case (appreciating the Second Circuit's cutting back on that case's broad view of NY unfair competition law). By virtue of Section 1101(d)'s nonpreemption provision states are still free.

The part I hve never understood about the Martignonistas is their failure to grasp that the conduct that is the subject of the bootleg provision is the unauthorized fixing; the provision is not cnc erned with protecting subject matter in the copyright sense. The performance could for example be unoriginal even if it were to fixed with permission (think of Yoko Ono).

You are of course correct that Martignon did not engage in the authorized fixation, but rather a subsequent distribution and that the statute reaches this too. But it only reaches distribution of an unauthorized fixation: if there was an authorized fixation then an unauthorized distribution would be a purely copyright act affair.

As for chapter 12, I regard everything after chapter 8 as sui generis.

Anonymous said...

Between June 21st, 1788, when New Hampshire became the ninth state to ratify the Constitution, and up until December 15, 1791, when Virginia ratified the first ten amendments, did the Commerce clause authorize Congress to impose a system of prior restraint on the press? Or have prior restraints on the press always been presumed outside the original grant of power?

The second circuit's analysis here would seem to compell an answer that would be profoundly at odds with the historical debate.

Anonymous said...

Prof. Patry--
the real issue: does the term "writings" require an authorized fixation or not?

That doesn't seem like the real issue to me. I think that the issue is that all federal laws concerning exclusive rights in creative works fall under the copyright clause. The clause then prohibits Congress from passing certain kinds of laws with regard to that subject matter. That the copyright clause is limited doesn't mean that the commerce clause can step in to evade those limits. If it could, why have the limits to begin with? For the limits to be meaningful, they have to actually limit what Congress can do.

Meanwhile, I'd say that 'writings' does require authorized fixation. If someone completely unconnected to the author writes the work, then they aren't really "their [the author's] ... writings."

That's important, because that is a big part of what makes it unconstitutional: Congress can't do this under the copyright clause, and can't create copyright-esque laws by any other means.

William Patry said...

Dear Anonymous above this comment:

Under your analysis, a slew of statutes would be unconstitutional, beginning with the Lanham Act. It can't be the existence of exclusive rights with respect to creative works alone that results in something falling within the Copyright Clause since that Clause is limited to exclusive rights in the writings of authors.

One could, for example, find a symbol that is creative and use it as a trademark. If the exclusive right granted were moreover only against use of the mark in a way that resulted in consumer confusion in a particular market and not an exclusive right in the symbol as against all uses, how would that implicate the copyright clause.

I feel the same same with respect to unfixed live musical performances. An unauthorized fixation of Yoko Ono wailing under a blanket is not only enough to drive you insane, but it also can't implicate the Copyright Act. The locus of the right is against the fixation of the live musical performance, not any creative element.

Anonymous said...

Prof. Patry--
One could, for example, find a symbol that is creative and use it as a trademark. If the exclusive right granted were moreover only against use of the mark in a way that resulted in consumer confusion in a particular market and not an exclusive right in the symbol as against all uses, how would that implicate the copyright clause.

It wouldn't, but only because you are protecting something that falls well outside the ambit of even the broadest conception of copyright: the commercial reputation associated with the mark, rather than the creative material.

But this isn't the case for 1101. I see that you're arguing that since 1101 has no originality requirement it would prohibit making recordings of even the most unoriginal live musical performance (e.g. if you just counted from one to a thousand and claimed it was music, it would qualify).

But I think this is disingenuous of you. First, the context of 1101 -- its placement in Title 17, the language in (a)(3) -- seems to place it in the realm of copyright.

Second, I'm reminded of Dastar v. Fox (and cases that approached it, such as CBS v. Silverman, and Comedy III v. New Line). Trademarks are not a substitute for copyrights. You cannot create mutant copyrights by avoiding the copyright clause, its policies and limitations, and resorting to the commerce clause. Yet that's clearly what 1101 is all about.

Your comment re: originality is noted, though, and I'll have to fiddle with my argument. Let me instead say that the copyright clause is the sole source of power for works qua works. But that protection is limited to a subset of all such works -- they have to be original, fixed, works of authorship. Otherwise, we're again faced with the dilemma that there are groups of works which can be effectively copyrighted despite the copyright clause prohibiting it. And that you could protect works more heavily than the copyright clause permits. To allow that would be absurd. For the limits of the clause to have meaning, 1101 has to go.

William Patry said...

Dear Anonymous, the placement in title 17 is meaningless. We had originally placed it in title 15 and certainly wished we had in retrospect. Of course in hindsight, I wish we had assigned a term of 50 years from the performance too. We genuinely believed, and I still do, that the copyright clause only covers, dormantly or not, works of authorship fixed with permission.


If instead of enacting Section 1101, the requirement of fixation with the permission of the author had been elminated from the Copyright Act, and suit was brought for the unauthorized fixation of a live musical performance, I think the Martignonistas would have been on the other side, arguing fervently that such a right exceeded Congress's power. Indeed, that is Martignon's own position. At a Fordham symposium at which I spoke, Martignon's attorney admitted after I flushed him out that no matter what Congress did, it was without authority to protect the unauthorized fixation of live musical performances, and without regard to the length of the term.

So let's be clear: the attack by Martignon on Section 1101 has nothing to do with grand theories of constitutional law, but is instead an after-the-fact, run-of-the-mill attempt to avoid going to jail for conduct Congress proscribed and rightly so. Martignon himself was not a creator or a hero of the information wants to be free movement.

William Patry said...

Following up on my last comment about Martignon's lawyer taking the position that there is nothing Congress can do to prevent the unauthorized fixation of live musical performances, here is the relevant transcipt from the Fordham event, found at 16 Fordham Intellectual Property Media & Entertainment L. Rev. 1223, 1226-1227 (2006):

MR. PATRY. The more serious issue, for me, is the one that Jane [Ginsburg] raises, which is that, under one reading of this, Congress can't do it under either provision. That I find a more troubling prospect. You could say, “You know, what they did back in 1994 was a bad idea, and the guy who did it apologized for it. So please fix it.” They wouldn't care, but if Congress did care and they did say, “Oh, okay, you made a mistake, and we're going to fix it and do fifty years,” under that reading of it, they couldn't. That is a real issue, because that does, then, place you in violation of your treaty obligation.
MR. PATTON: May I just say, though, depending on your view of simultaneous transmission and simultaneous recording, it could be fixed, I think, either by interpreting the Copyright Act itself to give a simultaneous recording copyright protection or by amending the Copyright Act to, just as you have simultaneous transmission, have a simultaneous recording.
MR. PATRY: But I thought the problem was not how the statute was written, but the constitutional authority to do something.
MR. PATTON: It is, but here, as it stands now, there is no requirement that the performer record his own performance. If Congress were to require that the performer recorded the performance, and once he did so any simultaneous recording gave the performer traditional copyright protection, I think that could comply with the treaty.
MR. PATRY: But then you are redefining it as the Copyright Act. I know Fred von Lohmann has the idea that that is what you should do, and it would encourage people to record things. But that is a different act; that is a different thing than what we are talking about.
MR. PATTON: It is, but I think it's a way to fix the treaty, if the court were to say . . .
MR. PATRY: But that's not the treaty. The treaty doesn't say you have to do it. The treaty is intended to cover what we covered, in a constitutional way or not. That's a separate problem, of course, that maybe we agreed--I don't think we did, but I think your view, followed out, is that the administration agreed to something Congress couldn't constitutionally do.
MR. PATTON: Absolutely.
MR. PATRY: Then that's the position.

joshua wattles said...

Only non-artist lawyers stuck in the 20th century would understand a writing to require a fixation in the context of Article 1 section 8 clause 8. Just as only lawyers could convince themselves that “limited times” means “any period of time as long as it has a start and an end” instead of its obvious meaning: a relatively short - - that is, limited - - period of time.

This notion of fixation comes from an effort to stretch “writings” past mere visible words by making up analogies for visible words. The first copyright act passed by the Founders specified protection for maps and charts. In doing this, it became obvious that writings meant the expressions of authors and not their words per se. As authorial expression broadened as a commercial proposition in the United States, non-word based works such as etchings, photographs, musical compositions and “chromos” entered into the penumbra of a “writing.” In each of these cases, particularly for music, instead of treating them as writings in the sense of being works of authorship, lawyers engaged in a fiction that it was the copy of the music being protected as sheet music or as a phonorecord - - word-like doppelgangers - - instead of the music itself. But this was and is a conceit in favor of a lawyer-like sense of categorization. Music lives as sounds and not as anything else. It’s poorly preserved, no matter the fidelity, when fixed. Later, completely non-markings based works such as pantomimes and choreography and the interior volume of an architectural space became protected “writings” again with the requirement of fixation super-imposed.

In Mazer v. Stein http://digital-law-online.info/cases/100PQ325 Justice Douglass suggested in a soft dissent that the court should at least explore whether sculptures were “writings” as a Constitutional matter. Assuming the answer is “yes” then what of a sculpture that requires no writing at all - - no object at all - - and consists of just a concept of an object in a description communicated by some un-fixed means such as a live conversation? If the answer to this is “nope, not covered by the Constitution,” then the only reason for the exclusion is ministerial and at best practical. It is a type of conclusion that a Register of Copyrights in need of serving a Library of Congress would clearly reach. No fixation means no deposit. No fixation means a lack of simple definition of the corpus being protected. This notion of permanence in definition is a tool, maybe an indispensable tool, for the lawyers and judges but it is not a requirement for a work of authorship and certainly not for a work of art.

A Constitutional “writing” in law and fact has come to mean a “work of authorship” and I believe that is what the word “writings” was intended to mean in context when drafted. Fixation is a limitation imposed by statute for the convenience of a legal system.

Are we not digital ephemera here in cyberspace as much as we become words? We are Devo.

William Patry said...

Josh, I am impressed by such a long comment so early West Coast time. I will note that my graduate and undergraduate degrees are in music, not poly sci or any of those "non-artist" disciplines.

Resepctfully, I think you are making a different point. You are discussing whether something might qualify as an original work of authorship under the constitutional term "writing." I agree with your comments on that point.

The issue for Section 1101 is, assuming something would be such an original work if fixed, can Congress constitutionally exend protection under the Commerce Clause to unfixed works without regard to the limited times restriction in Article I section 8, clause 8.

Anonymous said...

Prof. Patry--
So let's be clear: the attack by Martignon on Section 1101 has nothing to do with grand theories of constitutional law, but is instead an after-the-fact, run-of-the-mill attempt to avoid going to jail for conduct Congress proscribed and rightly so. Martignon himself was not a creator or a hero of the information wants to be free movement.

Sure. But so what? No one actually cared about Ernesto Miranda, but the legal issues surrounding him were important. People have to care about the case -- rather than the man -- because that's where the standing is. You know this.

William Patry said...

Dear Anonymous, true enough about famous test cases, and I have nothng personally against Mr. Martignon. My point was that many of the arguments made against the statute arise from a hostility to the very idea of such a right, not out of a pre-existing belief about the dormant copyright clause, and not even about the ridiculous length of protection. My point was that if Congress had limited the term to 50 years from the performance and had repealed the fixation requirement, the Martignon case would still exist, as a challenge to Congress's ability to protect unfixed works. This is precisely what Martignon's lawyer said at Fordham, I note.

Anonymous said...

Suppose the Congress had enacted a statute punishing the interstate trafficking, for commercial gain, in any phonorecord having been made within any state and contrary to the public law of that state.

There would be some difficulties with that statute, mainly in the area of federal preemption of the state's lawmaking powers through the Copyright Act. But, on the whole, I think that a statute punishing interstate trafficking in articles manufactured in defiance of the laws of the several states could be made suitably agreeable to the Constitution.

It is not to be forgotten that the states wield general powers over their inhabitants and territories, consonant with their own constitutions, and subordinate to the federal power; nevertheless general.

The fundamental objection to this statute, here at issue in Martignon, seems to me to be the unwarranted arrogation and assumption by the Congress of powers formerly thought to be within the realm of the Royal Prerogative.

William Patry said...

Thanks previous Anonymous. I don't know what Royal Prerogative you are referring to, but I want to point out that in the chapter 9 extension of protection to the design of semiconductor chips, Congress was worried enough about its ability to protect them as "writings" that conditioned violation of the right on acts that occur in interstate commerce.

Anonymous said...

The granting of monopolies had, in former times, thought to be an exercise of prerogative. That prerogative was much abused.

The abuse was condemned at common law as early as the well known "Case of Monopolies", Darcy v. Allein (1603). Then, in 1623, Parliament attempted to curb the abuse by enacting the "Statute of Monopolies" (21 Jac. 1, c.3). But the crown still created much mischief after that date.

Those landmarks are well-known to many of us, almost as well as they were to educated people of America in the latter half of the eighteenth century.

It is not to be supposed or countenanced that the founders meant to empower Congress to exercise the full power of the prerogative. Its abuse had already become infamous. Instead, the Constitution carefully limited the power, and provided that its exercise should be "To promote the Progress of Science and useful Arts".

All the powers of the prerogative not granted to the federal government have been reserved to the states or the people.

William Patry said...

Geez, I thought we had overthrown the King, and with that the idea of royal prerogatives. Plus, the Commerce Clause powers are one of the powers granted to Congress.

Anonymous said...

Dear Mr. Patry,
Whatever you think of the merits of Judge Baer's Martignon opinion, your claim that it was written by second year law students is a scurrilous canard. Judge Baer, like many district judges, relies on interns throughout the year to help proof, cite check, and draft some portions of opinions. He also has terms clerks, who function in a more substantive role. However, as a way of thanking his interns, Judge Baer mentions them in a footnote of any opinion on which they worked. Ultimately, the work product is always that of the Judge, and your attempt to paint the picture otherwise (no matter how faulty you think the opinion's reasoning) is a lame swipe unworthy of someone with your status and credentials.

William Patry said...

Dear Anonymous, I don't think my reference ascribes the terrible things you accuse me of. Any opinion is ultimately that of the judge. My wife clerked for four years in the SDNY, as have many friends. I have, therefore, a fairly good inside knowledge of the wide variety of roles played by law clerks in that court.

Dotan Oliar said...

Courts' analysis of the anti-bootlegging statutes' constitutionality (including the Second Circuit's decision) is indeed unsatisfying. In a forthcoming Constitutional Copyright Law symposium piece - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=989210 - I note places in which the current debate has been lacking, and suggest how it might improve going forward. The weaknesses that the piece suggests exist in the debate are present in the 2d Circuit’s decision as well (the piece, btw, was finished and posted on SSRN two weeks before the decision was published).

The piece shows that the anti-bootlegging courts have a partial, and therefore distorted, view of Supreme Court precedent on inter-clause conflicts. The Second Circuit, for example, wrote that “Gibbons is the only case called to our attention by the parties or the amici in which the Supreme Court struck down a statute that violated the limitation of one constitutional provision despite its clear nexus to another provision”. The 2d Circuit is unaware of at least one other case - Perry v. U.S. – that did just that (applied a limitation from one congressional power to an exercise of another congressional power). Had the 2d Circuit been aware of Perry, it’s 2-prong test for unconstitutionality (quoted in Bill Patry's wonderful post above) would have likely been different. For example, the 2-prong test suggests that a statue is unconstitutional only when it violates a limitation in the same congressional power under which it was enacted (the test says so for the IP clause). However, in Perry a limitation in one power (Congress's power to borrow money) limited the exercise of another power (the one to regulate the value of money). Also, in the 2d prong, the 2d Circuit requires that the limitation be “specific” (i.e. explicit) in the text of the arguably limiting power. In Perry, however, the S. Ct. implied a limitation which is not explicit in the text of the limiting Congressional power (the power to borrow money). These are just two illustrations for how an incomplete view may lead to distortions. At the same time, there are other supreme court cases (not reviewed by the anti-bootlegging courts) that reach an opposite result (of no limitation), while using many different interpretive approaches.

Another unsatisfying characteristic of the anti-bootlegging courts’ (and the Second Circuit’s) discussion is their attempt to decide the constitutionality question by categorizing a statute that has both IP characteristics and regulation of foreign commerce characteristics into either the IP Clause or the Commerce Clause exclusively. I have called this formalist tendency “perhaps the most recurring theme in the inter-clause conflict controversy” in my piece. The Second Circuit’s decision affirms this observation. Largely, the 2d Circuit’s decision relies on the suggestion that the anti-bootlegging statutes are not about intellectual property but about commerce. The anti-bootlegging statues, however, implement TRIPs which is an international trade agreement on intellectual property rights. To ask whether TRIPs (or anti-bootlegging) is more about IP or more about international trade is like asking whether a tomato is more round or more red. Whatever the solution to the constitutionality question is, it cannot satisfactorily rest on an indeterminate distinction. In my piece, I review other approaches to resolving inter-clause conflicts, and note their powers and weaknesses.

One last omission in the debate stems from its exclusive focus on the “limited times” and “writings” limitations. The piece analyzes the conflict with the originality, authors and “promote the progress of science and useful arts” limitations as well. The latter, it suggests, must be analyzed in order to satisfactorily decide whether the anti-bootlegging statutes are constitutional.

William Patry said...

Thanks so much Dotan for your very thoughtful posting. I highly recommend reading his piece as well. (Professor Oliar teaches at the University of Virginia Law School although he is on vacation now in Israel, from which he sent his comment).
ארץ ישראל לעם ישראל

Chris said...

Since 17 U.S.C. 11 is NOT a copyright statute, it seems that all of the limitations on copyright in Chapter 1 don't apply either. So, for example, a news reporter who transmits part of a live show is not protected by fair use. (But may have other 1st Amendment defenses.) As a result, live performances are actually better protected than pre-recorded performances.