Promises, promises. Of late, every time I've promised to put up that end-of-Term review, something else has gone haywire. So no more promises: It will just appear here.
Professor Patry has some well-considered choice words about a real, live, criminal copyright case:
I went to the oral argument before the Second Circuit yesterday morning in United States v. Martignon. I wish I hadn't. It sucked. Decision making based on fundamental misconceptions can only lead to bad law and bad policy.
The rest of his post covers the woefully inept (as he described it) argument in Martignon, which concerns a statutory inserted into the Copyright Act1 that prohibits sale of unauthorized bootleg recordings. Forever, instead of for a limited time.
Most of the argument appears to center on whether Congress had constitutional authority to so legislate. The argument against constitutionality goes something like this: The bootleg recording is a fixation, and therefore a "writing." As a "writing", it can fall only under the authority of the IP Clause, not the dormant Commerce Clause.2 Since chapter 11 contemplates no time limit on the prohibition, it exceeds the scope of the IP Clause, and is therefore an unconstitutional statute.
Perhaps this entire argument would have been pretermitted had chapter 11 remained in Title 15, where it really belongs; bootleg recordings are at their core more like unfair competition than like "copying." But that's beside the point. Most of the analysis I've seen on the matter—not just Professor Patry's—concentrates on the meaning of "writings", and whether a bootleg recording of a live performance constitutes a "writing." Sure, it's a fixed performance; does that make it fall within the IP Clause? No. There's another word at issue, which is apparent from the IP Clause itself:
The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
(emphasis added) The question, then, is not whether a bootleg recording is a "writing"; the photography cases from the nineteenth century seem to answer that fairly persuasively (as "yes"). It is whether a bootleg recording is "their writing" when it is not authorized. It seems to me that the answer here must be "no, it isn't," for two reasons.
- Note the possessive. The whole point of a bootleg is that it is not something that was done or authorized by the performer. How, then, under any reasonably natural reading, can it be "their" writing? It is at best somebody's writing; but it is not the performer's. If not the performer's writing, it's outside the scope of the IP Clause.3 There's also the subtle issue of "originality" here—whether scribblings done by someone who is unconscious are "original," by analogy; but that's a much tougher question than the one we need answer.
- Consider the bootleg recording that competes with an authorized recording of the same concert. Since the latter is explicitly authorized, it probably does constitute the performer's own writing. But is the bootleg recording a copy of the fixation? I think not. This also implicates the theory underlying Bridgeman, which held that the "best possible copy" of a two-dimensional work of art was not sufficiently original to have copyright protection on its own (which I think is correct). A bootleg is the "best possible copy" of a live performance, and there's no doubt that the live performance per se is not copyrightable subject matter under the statute as it stands. Of course, this leads to the question of whether any sound or audiovisual recording of a live event is properly subject to copyright; but that's not the point here. The point here is that there must have been another power at work, if only in concert with the IP Clause.
I think this is yet another argument for consolidating copyright appeals (and probably trademark appeals, too, but that's something I'm still wrestling with) in the Federal Circuit. No matter how the Second Circuit decides Martignon, it will be creating a split in authority (just not necessarily a circuit-level split). That's not healthy, particularly on the foundational question of whether given conduct violates a federal criminal provision based upon where the prosecutor manages to assert personal jurisdiction.
- Here, I have a minor disagreement with Professor Patry… closely related to dancing on the head of a pin. He characterizes the Copyright Act as consisting only of chapters 1 through 8 of Title 17. I don't think this is consistent with the DMCA, which in 1998 explicitly stated that the new chapter 12 of Title 17 is an amendment to the Copyright Act. Neither do I think it consistent with the treatment of Title 17 by the administrative agency with interpretive authority: the Register of Copyright. Ms Peters' agency treats all of Title 17 as the Copyright Act.
- I find it rather surprising that nobody seems to have raised the Necessary and Proper Clause as an alternate source of constitutional authority. Or perhaps they did and dismissed it; but the McCulloch line of cases at least bears some careful consideration. If the purpose of the IP Clause is to encourage progress, and that clause further provides for an exclusive right, is it not within the scope of "necessary and proper" to legislate against evasions that would undermine that constitutional power? I haven't thought this through in excruciating detail. Yet. It seems to me, though, that those who say "It must be either the Commerce Clause or the IP Clause" need to at least analyze whether another power in § might also be in play. I think part of the problem is that the Necessary and Proper Clause isn't fashionable anymore.
- This has some rather fascinating implications for the WFH doctrine… and not implications that support that doctrine.