In U.S. v. Martignon , the U.S. Court of Appeals for the Second Circuit upheld the constitutionality of a federal law, Section 2319A of the Uruguay Round Agreements Act , which criminalizes " bootlegging " -- the recording, copying, distribution, sale, rental, or other form of trafficking of music or a musical performance without the consent of the copyright holder (or other authorized party).
Jean Martignon, the owner of Midnight Records in Manhattan, moved to dismiss the indictment on the grounds that the law was unconstitutional under the Copyright Clause , the Commerce Clause and the First Amendment . While the United States District Court for the Southern District of New York granted the application on the first two grounds, the U.S. Court of Appeals for the Second Circuit reversed on appeal.
Martignon argued that the statute violated the Constitution's Copyright Clause , which empowers Congress to "promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries."
Martignon asserted that live performances are neither "Writings" nor "Discoveries" and that the law's protection was impermissibly "perpetual." According to Martignon, the Copyright Clause is both a grant and a limitation of power; Congress may protect intellectual property, but only certain kinds and for a limited duration.
The United States countered that the Copyright Clause is an affirmative grant of power, not a limitation, and that the statute comported with the Commerce Clause . The government further argued that Congress is empowered to regulate activities with a substantial impact on interstate commerce, and since the music business is a vast, nationwide industry, bootlegging has an adverse impact on our national economy.
After examining the Copyright Clause , the Second Circuit found the text inconclusive as to whether it limited Congressional power. The Court then examined the statute, and concluded that it was not a copyright law in any event. In contrast to most copyright statutes, Section 2319A does not grant artists the right to enforce the law. Instead, as a criminal statute, only the government was authorized to punish violative behavior.
After finding the Copyright Clause inapplicable, the Second Circuit then examined the law under the Commerce Clause , and upheld its constitutionality. But since the District Court had not reached the question of whether the statute violated the First Amendment , the case was remanded for a further determination on that issue.
Should be interesting to see how Martignon spins that!
For a copy of the Second Circuit's decision, please use this link: U.S. v. Martignon
* The law was passed as a result of international trade negotiations on intellectual property protection that took place in Uruguay -- hence the unusual name.