Substantial Similarity

Nearly two years ago, the Second Circuit heard oral argument in United States v. Martignon. ¹ The case, for those unfamiliar, is a criminal prosecution under 18 U.S.C. 2319A, the federal anti-bootlegging statute. That statute imposes criminal sanctions against those who record, transmit, copy, or distribute live musical performances without authorization.

The district court dismissed the indictment, holding that 2319A violated the limited times and Writings requirement of Article I, Section 8, Clause 8. According to Judge Baer, since 2319A conferred copyright-like rights in ephemeral live performances and did so without imposing any durational limit on that protection, the statute was repugnant to the limits demanded by Clause 8. Even though the Commerce Clause provides seemingly independent authority for the regulation of bootleg recordings, the court understood that Congress cannot escape the limits in one grant of authority by acting inconsistently under another.

The Second Circuit, in a morass of confused logic and strained analogies, holds today that 2319A creates no conflict with Clause 8 because 2319A is not a “copyright law.” Before wading through the tangle of missteps that led the court to this conclusion, it’s worth pointing out the sole silver lining of this otherwise black cloud of an opinion:²

we conclude that 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.

Not quite how I’d put it, but this recognition – that the limits of the Copyright Clause can affirmatively restrain congressional action ostensibly taken pursuant to the Commerce Clause – is an important one. Despite the fact that the Second Circuit fails to appropriately apply its own standard, the court’s abstract confirmation that the Commerce Clause cannot run roughshod over Clause 8, and the rest of the Constitution for that matter, is sadly a fairly significant step forward in our constitutional copyright jurisprudence.

But from there, things quickly go down hill – and a very steep hill at that. The court concludes that 2319A, while copyright-like, is not a “copyright law” and therefore not enacted pursuant to the Copyright Clause. As a result, 2319A is free to ignore and even contradict the limits imposed by Clause 8. This conclusion is terribly misguided. The two subsections of 2319A at issue here create rights substantively equivalent to those Congress could enact through the exercise of its authority under Clause 8. Section 2319A(a)(1) prohibits, inter alia, unauthorized reproduction of a recording of a live musical performance, while § 2319A(a)(3) prohibits the unauthorized distribution and sale of such a recording. Only the performer has the right to authorize another to engage is copying, distribution and sale of recordings of original expressive works. If that isn’t a piece of legislation Congress could enact under Clause 8 – assuming a durational limit of course – I simply don’t know what is.

But yet, the Second Circuit, displaying an ability to draw dispositive distinctions where no mere mortal could even perceive grounds for differentiation, is convinced that 2319A and the Copyright Act share no common constitutional ancestor. Taken separately or together, the bases upon which the court attempts to justify this conclusion are insufficient.

According to the court, unlike true copyright legislation, “2319A does not create and bestow property rights upon authors or inventors, or allocate those rights among claimants to them.” I’ll not quibble with the court’s formulation of the essence of copyright laws, although my silence is by no means an indication of assent. But even assuming this distillation is correct, the court gives us no good reason to believe 2319A doesn’t serve precisely this function of creating and allocating property rights in expression. ³

First the court suggests that 2319A doesn’t bestow property rights because it is a criminal statute. Following the Second Circuit’s logic, criminal sanctions that have long been considered part of “Copyright proper” are in fact not copyright laws at all. That’s news to, well, just about everyone. Criminal sanctions, according to the court, don’t create rights, they merely create a power in the government to protect the interest of the nominal rightsholder. Now I’m certainly no property scholar, but it seems to me most of our property “rights” eventually reduce to the question of whether or not the “government [will] protect the interest” or not. Surely, the enforcement mechanism, whether civil or criminal, is not of such fundamental importance that it changes the constitutional source of the protected interest.

The court’s other arguments are even weaker. First it points out that under the Copyright Act, authors are afforded “an extensive bundle of rights.” Under 2319A, by contrast, the performer only gets “one right – the right to allow the fixation of his or her performance.” First, this is just flat out wrong. The performer also has the exclusive right to authorize reproduction, copying, sale, distribution, or transmission of that performance. The court may want to take a closer look at the text the next time it is asked to pass on a statute’s constitutionality. Beyond that, even assuming the court is correct, it’s not clear that this distinction makes any bit of difference. So the Copyright Act gives a bundle of rights, therefore any legislation that grants exclusive rights in original expression is not a copyright law so long as those rights are fewer in number than “a bundle.” Really? How many rights are in a standard issue bundle anyway?

The bigger problem, of course, is that the court is rather unimaginatively using the current Copyright Act as the metric for determining whether legislation is an exercise of the power granted by the Copyright Clause. The current Copyright Act is not the entire universe of Congress’ power under Clause 8. Take a look at the 1790 and 1909 Acts if you need further proof on that point. Certainly Congress could amend the 1976 Act to provide fewer than the current bundle of rights. It could, I have no doubt, provide only a single right if it so chose. Would the Copyright Act no longer, on that account, be legislation enacted pursuant to Clause 8? I rather think not.

The same applies to the court’s astute observation that the current Copyright Act permits the transfer of rights. If Congress, in its wisdom, chose to prevent copyright holders from transferring their rights, Clause 8 would certainly not pose a barrier. Nothing in the text of Clause 8 even hints at such a limitation on the power to enact copyright legislation. How then does this consideration weigh in favor of distinguishing 2319A from “real copyright law”? Quite simply, it doesn’t. Or at least shouldn’t.

The Second Circuit failed to articulate a single reason why 2319A does not serve the very same function⁴ envisioned by the Framers when they drafted Clause 8. Indeed, consider the text that precedes the section 106 bundle:

the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

The exclusive rights created and bestowed by 2319A, which provide performers with an exclusive right to authorize the reproduction, distribution, and transmission of their musical performances, would feel right at home in this list, were it not for their unconstitutional lack of a durational limit.

1. I should note that I was one of the principal authors of an amicus brief filed in support of Martignon on behalf of a distinguished group of copyright and constitutional scholars. So my opinion on the case is anything but unbiased. [↩]
2. The other heartening aspect of this opinion is its recognition that the First Amendment may still have some role to play when purportedly non-copyright laws restrict the ability to archive and disseminate speech. Hopefully the district court takes the Second Circuit’s invitation to examine that issue more directly. [↩]
3. I must admit the phrase “property rights in expression” makes me cringe. [↩]
4. 2319A certaintly doesn’t serve the same ideals, but that wasn’t part of the Second Circuit’s cursory inquiry. [↩]