UNITED STATES of America, Plaintiff-Appellee, v. Ali MOGHADAM, Defendant-Appellant.
No. 98-2180.
United States Court of Appeals, Eleventh Circuit.
May 19, 1999.
175 F.3d 1269
Accordingly, we hereby REVERSE Burgess‘s conviction, VACATE his sentence, and remand this case to the district court for further proceedings consistent herewith.
will be in a better position to resolve the parties’ differences over the phrasing of the jury instructions, the evidence required to support a conviction, and the constitutional implications of Burgess‘s prosecution.
Charles Wilson, U.S. Attorney, Tampa, FL, Charles L. Truncale, Assistant U.S. Attorney, Jacksonville, FL, for Plaintiff-Appellee.
Before ANDERSON, Chief Judge, HULL, Circuit Judge, and HAND*, Senior Circuit Judge.
In 1994, Congress passed a statute criminalizing the unauthorized recording, the transmission to the public, and the sale or distribution of or traffic in unauthorized recordings of live musical performances. See
In the district court, Moghadam moved to dismiss the indictment, arguing that the statute was unconstitutional because it did not fall within any of the federal legislative powers enumerated in
I. BACKGROUND ON THE ANTI-BOOTLEGGING STATUTE
A brief overview of the history of statutory protection for music and musical performances is in order. Musicians or performers may enjoy copyright or copyright-like protection in three things, which are important to keep distinct. First, a musical composition itself has been protected by statute under copyright law since 1831. See
However, following passage of the Sound Recording Act of 1971, a void still remained. No protection at the federal level extended directly to unrecorded live musical performances. Therefore, a bootlegger could surreptitiously record a live musical performance and engage in unauthorized distribution of the recording or copies thereof, without having violated copyright law. This gap in copyright protection, exacerbated by the growing market for such bootleg copies, motivated Congress to enact the anti-bootlegging provision at issue in the instant case.
The anti-bootlegging statute grew out of the Agreement on Trade Related Aspects of Intellectual Property (“TRIPs“), which has been described as “the highest expression to date of binding intellectual property law in the international arena.” David Nimmer, The End of Copyright, 48 Vand. L.Rev. 1385, 1391-92 (1995) [hereinafter Nimmer, The End of Copyright]. TRIPS became law by operation of the Uruguay Round Agreements Act (“URAA“), Pub.L. No. 103-465, 108 Stat. 4809 (1994), a comprehensive act dealing with matters of international trade.
(a) Whoever, without the consent of the performer or performers involved, knowingly and for purposes of commercial advantage or private financial gain—
(1) fixes the sound 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), regardless of whether the fixations occurred in the United States;
shall be imprisoned ... or fined ... or both....
The URAA also enacted a similar provision establishing civil liability for the same conduct (but omitting the commercial advantage or private financial gain requirement). See
The rights created by the anti-bootlegging provisions in URAA are actually hybrid rights that in some ways resemble the protections of copyright law but in other ways are distinct from them. See 3 Melville B. Nimmer & David Nimmer,
II. WHETHER THE ANTI-BOOTLEGGING STATUTE CAN BE SUSTAINED UNDER THE COPYRIGHT CLAUSE OF THE CONSTITUTION
Our analysis of the constitutionality of § 2319A begins with the Copyright Clause of the United States Constitution. By that Clause, Congress is empowered “[t]o promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The concept of fixation suggests that works are not copyrightable unless reduced to some tangible form. “If the word ‘writings’ is to be given any meaning whatsoever, it must, at the very least, denote some material form, capable of identification and having a more or less permanent endurance.” 1 Nimmer on Copyright, supra, § 1.08[C][2], at 1-66.30 (internal quotation marks omitted); see also Goldstein v. California, 412 U.S. 546, 561 (1973) (“[W]ritings ... may be interpreted to include any
Moghadam argues that a live performance, by definition, has not been reduced to a tangible form or fixed as of the time of the performance. See Nimmer, The End of Copyright, supra, at 1409 (“[N]o respectable interpretation of the word ‘writings’ embraces an untaped performance of someone singing at Carnegie Hall.“); Deas, supra, at 570 (“The most obvious constitutional departure found in the [anti-bootlegging law] is how [it] extends protection to unfixed material under the authority of a congressional enactment.“). Moghadam argues that, but for the bootlegger‘s decision to record, a live performance is fleeting and evanescent.
Because we affirm the conviction in the instant case on the basis of an alternative source of Congressional power, we decline to decide in this case whether the fixation concept of Copyright Clause can be expanded so as to encompass live performances that are merely capable of being reduced to tangible form, but have not been.9 For purposes of this case, we assume arguendo, without deciding, that the above described problems with the fixation requirement would preclude the use of the Copyright Clause as a source of Congressional power for the anti-bootlegging statute.
III. WHETHER THE ANTI-BOOTLEGGING STATUTE CAN BE SUSTAINED UNDER THE COMMERCE CLAUSE OF THE CONSTITUTION
The government contends, however, that the anti-bootlegging statute is permissible legislation under Congress‘s
Because Congress thought it was acting under the Copyright Clause, predictably there are no legislative findings in the record regarding the effect of bootlegging of live musical performances on interstate or foreign commerce. Such findings are normally helpful to a court in finding an interstate commerce nexus. See Cheffer v. Reno, 55 F.3d 1517, 1520 (11th Cir.1995) (upholding statute regarding freedom of access to abortion clinics under the Commerce Clause and relying on a plethora of specific legislative findings in the record regarding the effect of violence and physical obstruction on commerce in reproductive health services); see also United States v. Viscome, 144 F.3d 1365, 1371 (11th Cir.) (holding that “explicit findings that the proscribed activity in issue substantially affected interstate commerce” are accorded “substantial deference“), cert. denied, 525 U.S. 941 (1998). However, the lack of such findings does not rule out the Commerce Clause as a possible source of legislative authority applicable to the statute under challenge. Wright, 117 F.3d at 1269. In Lopez, the Court said that although “congressional findings would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye,” Lopez, 514 U.S. at 563, “Congress normally is not required to make [such] formal findings,” id. at 562.
Section 2319A also contains no jurisdictional element as is commonly found in criminal statutes passed under authority of the Commerce Clause. That is, there is no requirement that, for example, the bootleg copies or phonorecords have traveled in interstate or foreign commerce. Just as legislative findings can help fortify a statute against Commerce Clause scrutiny, a jurisdictional element is helpful because it ensures that each individual case will necessarily satisfy the required interstate commerce nexus. Lopez, 514 U.S. at 562 (noting that express jurisdictional elements “limit [a statute‘s] reach to a discrete set of [offenses] that additionally have an explicit connection with or effect on interstate commerce“). However, the absence of such a jurisdic-
Section 2319A clearly prohibits conduct that has a substantial effect on both commerce between the several states and commerce with foreign nations. The link between bootleg compact discs and interstate commerce and commerce with foreign nations is self-evident. For example, one of the elements of the offense is that the activity must have been done “for purposes of commercial advantage or private financial gain.”
Moreover, the type of conduct that Congress intended to regulate by passing the anti-bootlegging statute is by its very nature economic activity, which distinguishes the statute from the Gun-Free School Zones Act struck down in Lopez, which in criminalizing the possession of handguns within 1000 feet of a school, “ha[d] nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Lopez, 514 U.S. at 561. See also Nimmer, The End of Copyright, supra, at 1410 n. 155 (“Although [Lopez] demon-
The more difficult question in this case is whether Congress can use its Commerce Clause power to avoid the limitations that might prevent it from passing the same legislation under the Copyright Clause. As noted above, we assume arguendo that the Copyright Clause could not sustain this legislation because live performances, being unfixed, are not encompassed by the term “Writings” which includes a fixation requirement. The government argues that the anti-bootlegging conviction in this case can be sustained under the Commerce Clause. We turn now to this issue.
In general, the various grants of legislative authority contained in the Constitution stand alone and must be independently analyzed. In other words, each of the powers of Congress is alternative to all of the other powers, and what cannot be done under one of them may very well be doable under another. Perhaps the most prominent example of this principle is Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964). There, the Supreme Court considered the constitutionality of the public accommodation provisions of the Civil Rights Act of 1964. The earlier Civil Rights Cases, 109 U.S. 3 (1883), had declared unconstitutional similar provisions of the Civil Rights Act of 1875 because they regulated private conduct beyond the scope of the legislative authority granted by § 5 of the Fourteenth Amendment. Yet, the Heart of Atlanta Motel Court held, the Civil Rights Act of 1964 was predicated on the Commerce Clause and possessed sufficient connection to interstate commerce. See Heart of Atlanta Motel, 379 U.S. at 250. The Court‘s reasoning illustrates that, as a general matter, the fact that legislation reaches beyond the limits of one grant of legislative power has no bearing on whether it can be sustained under another. Id. (concluding that Congress possessed ample power pursuant to the Commerce Clause, and “we have therefore not considered the other grounds relied upon. This is not to say that the remaining authority upon which it acted was not adequate, a question upon which we do not pass, but merely that since the commerce power is sufficient for our decision here we have considered it alone“); see also South Dakota v. Dole, 483 U.S. 203, 207 (1987) (holding that pursuant to the Spending Clause,
This general approach has been applied in a context involving the Copyright Clause and the Commerce Clause as alternative sources of Congressional power. The Trade-Mark Cases, 100 U.S. 82 (1879), involved an 1876 Congressional enactment of a primitive sort of trademark protection, long before the modern-day Lanham Act. Act of Aug. 14, 1876, 19 Stat. 141 (“1876 Act“). This statute conferred protection on, and prohibited the counterfeiting of, various types of trademarks. The defendants were criminally prosecuted under the 1876 Act for trying to pass off imitation beverage products as brand-name by imitating famous trademarks of well-known beverage makers. The defendants challenged the constitutionality of the 1876 Act, arguing that Congress did not have legislative authority to enact it. As in the instant case, the government responded by proffering the Copyright Clause and Commerce Clause as alternative possible bases of legislative authority.
The Court next considered whether Congress could enact the 1876 Act under the Commerce Clause. The Court summarized the government‘s argument at the outset as that “the trade-mark is a useful and valuable aid or instrument of commerce, and its regulation by virtue of the [Commerce C]lause belongs to Congress.” Id. at 95. The Court appeared receptive to this argument. However, it must be remembered that the Trade-Mark Cases predated the New Deal-era expansion of the Commerce Clause. In the nineteenth century, “there still remain[ed] a very large amount of commerce, perhaps the largest, which, being trade or traffic between citizens of the same State, [was] beyond the control of Congress.” Id. at 96. Unfortunately (but understandably, since Congress had labored under the impression that it was authorized to enact the 1876 Act under its Copyright Clause power), there was no jurisdictional-type element in the 1876 Act to ensure that trademark protection would extend only insofar as related to interstate commerce. See id. at 97 (“Here is no requirement that [a person receiving trademark protection] shall be engaged in the kind of commerce which Congress is authorized to regulate.“). Consequently, the Court ultimately struck down the 1876 Act as not sustainable under either the Copyright Clause or the Commerce Clause.
Although the 1876 Act did not survive due to the restrictive view of the Commerce Clause prevailing at that time, the Supreme Court‘s analysis in the Trade-Mark Cases stands for the proposition that legislation which would not be permitted under the Copyright Clause could nonetheless be permitted under the Commerce Clause, provided that the independent requirements of the latter are met. Of course, we have already held that the anti-bootlegging statute satisfies the “substantial effects” test of post-Lopez Commerce Clause jurisprudence. The analysis in the Trade-Mark Cases tends to refute the argument that Congress is automatically forbidden from extending protection under some other grant of legislative authority to works that may not be constitutionally protectable under the Copyright Clause. Indeed, modern trademark law is built entirely on the Commerce Clause, see, e.g., Jellibeans, Inc. v. Skating Clubs of Ga., Inc., 716 F.2d 833, 838 (11th Cir.1983), and we have found no case which suggests that trademark law‘s conferral of protection on unoriginal works somehow runs afoul of
A similar analysis was adopted by the Second Circuit in Authors League of America, Inc. v. Oman, 790 F.2d 220 (2d Cir.1986). There, the issue was the constitutionality of
What plaintiffs’ argument fails to acknowledge, however, is that the copyright clause is not the only constitutional source of congressional power that could justify [§ 601]. In our view, denial of copyright protection to certain foreign-manufactured works is clearly justified as an exercise of the legislature‘s power to regulate commerce with foreign nations.
Authors League, 790 F.2d at 224. The Authors League analysis suggests that the Commerce Clause may be used to accomplish that which the Copyright Clause may not allow.
On the other hand, it might be argued that some of the grants of legislative authority in
We note that there is some tension between the former line of cases (Heart of Atlanta Motel, the Trade-Mark Cases and Authors League) and the Railway Labor Executives case. The former cases suggest that in some circumstances the Commerce Clause can be used by Congress to accomplish something that the Copyright Clause might not allow. But the Railway Labor Executives case suggests that in some circumstances the Commerce Clause cannot be used to eradicate a limitation placed upon Congressional
Resolving this tension, we take as a given that there are some circumstances, as illustrated by Railway Labor Executives, in which the Commerce Clause cannot be used by Congress to eradicate a limitation placed upon Congress in another grant of power.12 For the reasons that follow, we hold that the instant case is not one such circumstance. We hold that the Copyright Clause does not envision that Congress is positively forbidden from extending copyright-like protection under other constitutional clauses, such as the Commerce Clause, to works of authorship that may not meet the fixation requirement inherent in the term “Writings.” The grant itself is stated in positive terms, and does not imply any negative pregnant that suggests that the term “Writings” operates as a ceiling on Congress’ ability to legislate pursuant to other grants. Extending quasi-copyright protection to unfixed live musical performances is in no way inconsistent with the Copyright Clause, even if that Clause itself does not directly authorize such protection. Quite the contrary, extending such protection actually complements and is in harmony with the existing scheme that Congress has set up under the Copyright Clause.13 A live musical performance clearly satisfies the originality requirement. Extending quasi-copyright protection also furthers the purpose of the Copyright Clause to promote the progress of the useful arts by securing some exclusive rights to the creative author. Finally, with respect to the fixation requirement, upon which this opinion focuses, although a live musical performance may not have been fixed, or reduced to tangible form, as of the time the bootleg copy was made, it certainly was subject to having been thus fixed. Our conclusion that extending copyright-like protection in the instant case is not fundamentally inconsistent with the fixation requirement of the Copyright Clause is bolstered by an example from the prior copyright law. If a live performance is broadcast, e.g., by radio or television, and simultaneously recorded by the performer, any unauthorized recording by a person receiving the broadcast constitutes copyright infringement of the sound recording or motion picture, notwithstanding that the infringer actually copied the live performance directly, and not the fixation thereof. This result is based upon the last sentence of the definition of “fixed” in
For the foregoing reasons, we conclude that extending copyright-like protection in the instant case is not fundamentally inconsistent with the fixation requirement of the Copyright Clause. By contrast, the nonuniform bankruptcy statute at issue in Railway Labor Executives was irreconcilably inconsistent with the uniformity requirement of the Bankruptcy Clause of the Constitution.14
We note that there is another limitation in the Copyright Clause that may be implicated by the anti-bootlegging statute: the “Limited Times” requirement that forbids Congress from conferring intellectual property rights of perpetual duration. See Pennock v. Dialogue, 27 U.S. (2 Pet.) 1, 16-17 (1829). On its face, the protection created by the anti-bootlegging statute is apparently perpetual and contains no express time limit; therefore phonorecords of live musical performances would presumably never fall into the public domain. See Nimmer, The End of Copyright, supra, at 1411 (“[T]he Caruso example of protecting a work from a century ago and for centuries into the future ... is the antithesis of ‘limited times.‘“); see also Goldstein v. California, 412 U.S. 546, 560-61 (1973) (suggesting that a copyright of unlimited duration would have a tendency to inhibit the progress of the arts). However, because Moghadam has not challenged the constitutionality of § 2319A on this basis,15 we decline to raise the issue sua sponte. Thus, we do not decide in this case whether extending copyright-like protection under the anti-bootlegging statute might be fundamentally inconsistent with the “Limited Times” requirement of the Copyright Clause, and we do not decide in this case whether the Commerce Clause can provide the source of Congressional power to sustain the application of the anti-bootlegging statute in some other case in which such an argument is preserved. We reserve those issues for another day.
IV. CONCLUSION
For the foregoing reasons,18 the judgment of the district court is AFFIRMED.
ANDERSON, Chief Judge
UNITED STATES CIRCUIT JUDGE
Notes
The trafficking in bootleg sound recordings results in unjust enrichment of persons who unfairly appropriate the intellectual property and potential profits of sound recording companies and artists. The regulated activity thus substantially affects the profitability and viability of the aggregate sound recording industry. In other words, trafficking in bootleg sound recordings substantially affects and threatens the continuous interstate commercial activity generated by the artists and sound recording companies, which incur significant risks in the nationwide marketing of the fixed sounds of live musical performances.
Government‘s Initial Brief at 15.