United States v. Martignon

492 F.3d 140 (2nd Cir. 2007)

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Nature of the Case

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Facts

Congress enacted the URAA. The URAA contains two sections aimed at preventing bootlegging of records. Section 512, codified at 17 U.S.C. § 1101, provides a civil cause of action for a performer whose performance was recorded without her consent, while Section 513, codified at 18 U.S.C. § 2319A, provides criminal remedies to the government. Section 2319A(a) provides that a person who, without the consent of the performer or performers, 'knowingly' and for 'commercial advantage or private financial gain' (1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation; (2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance; or(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1) may be imprisoned for up to five years and for up to ten years for a second offense. A grand jury charged D, the proprietor of Midnight Records in Manhattan, with one count of violating Section 2319A by reproducing an unauthorized phonorecord and by distributing and selling and offering to distribute and sell phonorecords of performances that had been recorded or fixed without the consent of the performer or performers. D moved to dismiss the indictment because 2319A violated the Copyright Clause. D reasoned that live performances are not 'Writings' within the meaning of the clause and because live performances were given protection for perpetuity rather than for a 'limited Time.' D claimed that the statute violated the First Amendment. P claimed that Congress had the authority to enact 2319A under the Commerce and Necessary and Proper Clauses. The district court granted the motion to dismiss. Judge Baer concluded that 2319A was more closely tied to the Copyright than to the Commerce Clause: The agreement that it implemented, TRIPS, was intended to protect intellectual property; The words of the statute were consistent with the purpose of the Copyright Clause, encouraging authors and inventors to create by granting them exclusive rights in their writings and discoveries; The Committee on the Judiciary's report describes the legislation in terms of copyright and contains no mention of commerce; and 2319A follows the criminal copyright provision and refers to the definitions in Title 17, the copyright title of the United States Code. It held that 2319A 'provides seemingly perpetual protection for unfixed musical performances.' The performances are unfixed at the time they are recorded. The court held that they were not 'Writings' within the coverage of the Copyright Clause. Thus, section 2319A violates the 'limited Times' provision of the Copyright Clause. It then held that Congress could not do indirectly, under the Commerce Clause or the Necessary and Proper Clause, what it is forbidden to do directly under the Copyright Clause. P appealed. P claims that the Copyright Clause is solely an affirmative grant of power and does not limit Congress's power to act under other clauses of the Constitution. Even assuming that the Copyright Clause has some limitations, P contends that these limitations can only apply to matters within its scope, that is, fixed creative works or 'Writings.'