The Wrong Box: <i>U.S. v. Martignon</i> Not a Copyright Case

Martignon argued that the Act violated the Copyright Clause because it regulated “live performances for an unlimited period of time.” Op. at 1 (emphasis supplied by the court). The court agreed that the Act protected live performances impermissibly because the Copyright Clause protects only works “fixed in any tangible medium of expression,” 17 U.S.C. '102(a), and live performances are not “fixed.” The court also held that because there was no temporal limitation on the Act's prohibition of unauthorized distribution of illegally recorded performances, the law exceeded the “limited Times” aspect of the constitutional grant of power.

Picking a Box: Statutory Parentage

The first question considered by the court ' as it turned out, a fateful choice ' was whether the statute was an enactment under the Copyright Clause. It reviewed the genesis of the Act as part of the Uruguay Round of negotiations under the General Agreement on Trades and Tariffs. One of the agreed “Trade-Related Aspects of Intellectual Property” was bootlegging, and Congress enacted 18 U.S.C. '2319A in 1994 to address it. The court made particular note that this part of the GATT agreements focused on intellectual property. See Op. at 6.

The court next asserted that a “plain reading” of the Act revealed a purpose “synonymous” with that of the Copyright Clause. Though both provide protections for artists, copyright protection as an incentive for creative effort is not identical or even parallel to the requirement of obtaining consent of performers before recording them. Yet the court compared these protections and found them sufficiently equivalent to declare them “synonymous.”

The court also pointed out that the legislative reports on the Act contain references to intellectual property, not to commerce. Compelled to concede that a stated purpose of the Uruguay Round agreements was to “ensure uniform recognition and treatment of intellectual property in international commerce,” Op. at 7 (emphasis added), the court downplayed the commercial focus, saying it did not mean that each signatory country had that purpose in enacting its domestic legislation. Id. Although the criminal statute at issue in Martignon, section 2319A, is found in Title 18 of the U.S. Code with the other criminal provisions, the court cited the placement of the civil liability sister provision in Title 17 as revealing an “unquestionable” link to copyright.

What really seemed to eclipse all else for the court is that both section 2319A and copyright law protect performers. See Op. at 7. The court seemed uncomfortable, in turn, with the notion that a statute could be “copyright-like” but yet be enacted legitimately under the Commerce powers in the constitution. But the classification giving rise to this unease rests on strained reasoning. The mere fact that both the copyright and anti-bootlegging acts protect rights of performing artists does not mean they have an identical or “synonymous” purpose. See, eg, 3 Melville B. and David Nimmer, Nimmer on Copyright '8E.03[B][1], at 8E-16 (1997) (while rights protected under the anti-bootlegging statute are similar to those protected under copyright, they are also distinct from copyright). Where an act has been placed in the arrangement of the U.S. Code seems a fragile twig on which to hang its constitutionality, and the Act's criminal and civil remedies do not appear in the same place in the Code. The legislative discussion leading up to the enactment, while focused on intellectual property issues, stemmed from an international negotiation on trade, so there is at least as valid an argument that commerce is the ultimate aim of the law.

Another Box?

The court in Martignon may have labored so hard to classify the Act as a copyright law rather than a commercial one, see Op. at 5, because in an earlier decision the Eleventh Circuit had already come to a contrary conclusion. It held in United States v. Moghadam, 175 F.3d 1269, 1274 (11th Cir.1999), that the Act was a legitimate exercise of power under the Commerce Clause and not fundamentally inconsistent with the Copyright Clause.

As the courts in Moghadam and Martignon both properly acknowledged, it makes no difference what constitutional authority Congress believed or said it was employing when it passed the law, as long as there is some authority under which it could be lawfully enacted. Op. at 5; see Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948) (the constitutionality of congressional action does not depend on legislative recitals of the power Congress exercises). The Eleventh Circuit in Moghadam made an extensive and convincing analysis of the constitutional authority and had no hesitation in finding that section 2319A “clearly prohibits conduct that has a substantial effect on both commerce between the several states and commerce with foreign nations.” Id. at 1276.

The defendant in Moghadam had made one of the same arguments Martignon did, that live performances are not “fixed,” and the Act's purported regulation of them is not within the purview of Congress's Copyright Clause power. 175 F.3d at 1274. The Eleventh Circuit accepted this proposition arguendo but found it untroubling since the statute was valid as an exercise of Commerce Clause power. It determined that there was a clear connection of the statute with commerce and that it was not “fundamentally inconsistent” with the Copyright Clause. 175 F.3d at 1279; cf. Railway Labor Executives Ass'n v. Gibbons, 455 U.S. 457 (1982) (statute creating special right regarding a pending bankruptcy directly conflicted with constitutional bankruptcy clause requiring uniform laws, and was therefore invalid).

Judge Baer, however, pointed out that the defendant in Moghadam had not raised Martignon's other argument, that the Act violated the “limited Times” provision of the Copyright Clause. A number of statements in Moghadam are to the effect that the court was expressly not rendering any decision on the “limited Times” argument, and Judge Baer suggested that the Eleventh Circuit might well have invalidated the statute if the other argument had been raised.

The core of the Martignon decision, then, is that the anti-bootlegging Act provides some sort of perpetual copyright-like protection of live musical performances and must be categorized as copyright legislation. But it is invalid as such, because it violates the Copyright Clause's provision that artists' rights in their works can only be protected for “limited Times.” Op. at 11.

The Riddle of the Perpetual Ephemeral

“It is undeniable,” the court asserted, “that the anti-bootlegging statute grants seemingly perpetual protection to live musical performances, and therefore would run afoul of the Copyright Clause.” Id. The assertion is not only deniable but also insupportable. The court's notion of perpetual protection for live performances has a surreal quality; a live performance cannot be perpetually protected for the simple reason that there is nothing to protect perpetually. Musical performance exists only in time. As soon as the last note dies away a live performance is gone, never to occur again; it is unique.

Judge Baer clearly understood that a live musical performance is never fixed; indeed, he rather tartly criticized Congress on this point: “The [Committee on the Judiciary] simply failed to recognize, let alone master, one of the central problems here ' that an unrecorded live musical performance is not a writing.” Op. at 7. But the court grasped only half the significance of this fact: Because a live performance is never fixed and is therefore not a writing, it cannot be lawfully protected under copyright. But it is likewise not subject to the limitation on protection of copyrights.

The court did not overlook the latter point. It explicitly considered it (in a footnote) but rejected it as circuitous and “wholly unconvincing.” Op. at 14 n.17. The court acknowledged that Congress would not be subject to Copyright Clause limitations if it legislated for a purpose other than one embodied in that Clause, but it insisted that when Congress enacts “copyright or copyright-like legislation, for the purpose stated in the Copyright Clause, it is constrained by the Copyright Clause's boundaries.” Id. It is the court's conviction that the Act is essentially copyright legislation that dictates this result.

How 'Copyright-Like' Is the Protection?

Judge Baer's sense that the performers of a live concert are getting a copyright-like protection in the anti-bootlegging statute is accurate to a limited degree. The Act makes it criminal, now and forever, to reproduce and sell a bootlegged recording, while copyrighted phonorecords get only limited protection. (The Eleventh Circuit in Moghadam also observed that bootlegged recordings would never fall into the public domain. See 175 F.3d at 1281.) But the criminalization of copying and trafficking is merely a necessary adjunct to the focus of the statute, which is to prohibit the unauthorized fixation of the performance itself. The Act recognizes that a live performance is property ' an artist's creativity manifest in performance ' and it prohibits misappropriating that property via recording and then making money from the selling of the replicated performance. The statute is, quite simply, an anti-theft measure.

The only perpetual aspect of the anti-bootlegging protection, the ban against selling a purloined performance is, in effect, a permanent prohibition against fencing stolen goods. The prohibition of unauthorized recording would be toothless if the illicit recordings could be distributed for profit. No one would argue that Congress cannot legislate against this sort of conduct where, as in this case, it clearly affects commerce. Although the prohibition may look like a copyright protection, copyright protects only those who have a right to make the recordings. The anti-bootlegging Act prohibits reproducing and selling recordings by those who never had a right to fix the work in the first place. The Act allows artists to control whether their performances are extended beyond the immediate audience.

The Constitutional Balance

The concern of copyright protection is to provide incentives for creative work by regulating distribution of copies, for it is generally through replication that a work can become economically valuable. There is little reason to provide an incentive to engage in a live performance because it is a one-time experience of limited scope, beneficial only to the audience in the concert venue, but recordings of a performance can reach millions. Only a recording of a live performance can be copied, however, and only it need be protected under copyright. The balance between preserving the incentive to artists and edifying society through dissemination of creative work is maintained in the limited protection afforded phonorecords under the copyright laws.

But the public has no right ' ever ' to a recording of a performance that was never authorized for recording. There is nothing in the constitution that says Congress may not, pursuant to some other authority, protect against theft simply because an incident of that protection is similar to a copyright protection.

The courts in both Martignon and Moghadam agreed that the anti-bootlegging statute extends “copyright-like” protection. The Eleventh Circuit did not assume as the Martignon court did that such protection must proceed, if at all, from Congress's Copyright Clause power. Rather, it recognized that each of the constitutional powers of Congress is alternative to the other powers, and what cannot be done under one of them may very well be doable under another. 175 F.3d at 1277, citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); The Trade-Mark Cases, 100 U.S. 82 (1879); Authors League of America v. Oman, 790 F.2d 220 (2nd Cir. 1986). Only where the enactment conflicts directly with a limitation in the constitution would the legislation be invalid. See Railway Labor Executives Ass'n v. Gibbons, 455 U.S. 457 (1982). This analysis avoided the snag of preclusive classification.

But any analysis proceeding from the assumption that the Act's protections are quasi-copyright risks encounter with the prickly argument that a copyright protection masquerading as something else is illegally evading constitutional limits. The better analysis is that, however similar it might appear in one aspect, the anti-bootlegging protection is fundamentally different in nature from copyright.

Congress can and does create protections of other sorts of property that affect interstate commerce. Consider as only one example the allocation of rights to the airwaves. It can also criminalize theft of such property and profit therefrom. The Founding Fathers recognized that creative effort results in a certain sort of socially valuable product that might not be readily understood and respected as conventional property, and therefore might not be economically availing. They permitted the government to extend incentives for this sort of effort in the form of limited legal protection. They could not have imagined the capability to steal a live performer's work via surreptitious electronic recording. Nevertheless, their concept of “writings,” expansively defined to comprehend new technology, protects ' and circumscribes the protection of ' legitimate recordings. The balance struck by those gentlemen is not offended by Congress declaring it impermissible to misappropriate and exploit property by a means they could not have foreseen.

A prominent court, the U.S. District Court for the Southern District of New York, has rendered what may become a prominent opinion in the copyright arena, U.S. v. Martignon , No. 03 Cr. 1287 (S.D.N.Y. Sept. 27, 2004). Unfortunately, the analysis in the decision misses the essential point that the issue was not really one of copyright.

Judge Harold Baer, Jr.'s decision declared unconstitutional the federal anti-bootlegging statute set out in 18 United States Code '2319A (“the Act”). In essence, the Act declares it a criminal offense when, without the consent of the performer(s) involved, one knowingly and for purposes of commercial advantage or private financial gain 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. It is also an offense to transmit to the public without authorization the sounds or images of a live musical performance or traffic in unauthorized recordings of such. (A sister provision in 17 U.S.C. '1101 providing for civil liability for such bootlegging was not at issue in the case.) A federal grand jury indicted Martignon on one count of violating the criminal provision by selling “unauthorized recordings of live performances by certain musical artists through his business.” Martignon opinion (hereinafter “Op.”) at 2.

Martignon attacked the indictment on several fronts, arguing that the law exceeded the scope of the Copyright Clause of the U.S. Constitution, that it violated the free speech protections of the First Amendment, and that it offended “basic tenets of federalism.” The court did not reach the latter two arguments because it struck the law down under the Copyright Clause (Article I, '8, cl. 8: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors … the exclusive Right to their respective Writings. … “)

Martignon argued that the Act violated the Copyright Clause because it regulated “live performances for an unlimited period of time.” Op. at 1 (emphasis supplied by the court). The court agreed that the Act protected live performances impermissibly because the Copyright Clause protects only works “fixed in any tangible medium of expression,” 17 U.S.C. '102(a), and live performances are not “fixed.” The court also held that because there was no temporal limitation on the Act's prohibition of unauthorized distribution of illegally recorded performances, the law exceeded the “limited Times” aspect of the constitutional grant of power.

Picking a Box: Statutory Parentage

The first question considered by the court ' as it turned out, a fateful choice ' was whether the statute was an enactment under the Copyright Clause. It reviewed the genesis of the Act as part of the Uruguay Round of negotiations under the General Agreement on Trades and Tariffs. One of the agreed “Trade-Related Aspects of Intellectual Property” was bootlegging, and Congress enacted 18 U.S.C. '2319A in 1994 to address it. The court made particular note that this part of the GATT agreements focused on intellectual property. See Op. at 6.

The court next asserted that a “plain reading” of the Act revealed a purpose “synonymous” with that of the Copyright Clause. Though both provide protections for artists, copyright protection as an incentive for creative effort is not identical or even parallel to the requirement of obtaining consent of performers before recording them. Yet the court compared these protections and found them sufficiently equivalent to declare them “synonymous.”

The court also pointed out that the legislative reports on the Act contain references to intellectual property, not to commerce. Compelled to concede that a stated purpose of the Uruguay Round agreements was to “ensure uniform recognition and treatment of intellectual property in international commerce,” Op. at 7 (emphasis added), the court downplayed the commercial focus, saying it did not mean that each signatory country had that purpose in enacting its domestic legislation. Id. Although the criminal statute at issue in Martignon, section 2319A, is found in Title 18 of the U.S. Code with the other criminal provisions, the court cited the placement of the civil liability sister provision in Title 17 as revealing an “unquestionable” link to copyright.

What really seemed to eclipse all else for the court is that both section 2319A and copyright law protect performers. See Op. at 7. The court seemed uncomfortable, in turn, with the notion that a statute could be “copyright-like” but yet be enacted legitimately under the Commerce powers in the constitution. But the classification giving rise to this unease rests on strained reasoning. The mere fact that both the copyright and anti-bootlegging acts protect rights of performing artists does not mean they have an identical or “synonymous” purpose. See, eg, 3 Melville B. and David Nimmer, Nimmer on Copyright '8E.03[B][1], at 8E-16 (1997) (while rights protected under the anti-bootlegging statute are similar to those protected under copyright, they are also distinct from copyright). Where an act has been placed in the arrangement of the U.S. Code seems a fragile twig on which to hang its constitutionality, and the Act's criminal and civil remedies do not appear in the same place in the Code. The legislative discussion leading up to the enactment, while focused on intellectual property issues, stemmed from an international negotiation on trade, so there is at least as valid an argument that commerce is the ultimate aim of the law.

Another Box?

The court in Martignon may have labored so hard to classify the Act as a copyright law rather than a commercial one, see Op. at 5, because in an earlier decision the Eleventh Circuit had already come to a contrary conclusion. It held in United States v. Moghadam , 175 F.3d 1269, 1274 (11th Cir.1999), that the Act was a legitimate exercise of power under the Commerce Clause and not fundamentally inconsistent with the Copyright Clause.

As the courts in Moghadam and Martignon both properly acknowledged, it makes no difference what constitutional authority Congress believed or said it was employing when it passed the law, as long as there is some authority under which it could be lawfully enacted. Op. at 5; see Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948) (the constitutionality of congressional action does not depend on legislative recitals of the power Congress exercises). The Eleventh Circuit in Moghadam made an extensive and convincing analysis of the constitutional authority and had no hesitation in finding that section 2319A “clearly prohibits conduct that has a substantial effect on both commerce between the several states and commerce with foreign nations.” Id. at 1276.

The defendant in Moghadam had made one of the same arguments Martignon did, that live performances are not “fixed,” and the Act's purported regulation of them is not within the purview of Congress's Copyright Clause power. 175 F.3d at 1274. The Eleventh Circuit accepted this proposition arguendo but found it untroubling since the statute was valid as an exercise of Commerce Clause power. It determined that there was a clear connection of the statute with commerce and that it was not “fundamentally inconsistent” with the Copyright Clause. 175 F.3d at 1279; cf. Railway Labor Executives Ass'n v. Gibbons , 455 U.S. 457 (1982) (statute creating special right regarding a pending bankruptcy directly conflicted with constitutional bankruptcy clause requiring uniform laws, and was therefore invalid).

Judge Baer, however, pointed out that the defendant in Moghadam had not raised Martignon's other argument, that the Act violated the “limited Times” provision of the Copyright Clause. A number of statements in Moghadam are to the effect that the court was expressly not rendering any decision on the “limited Times” argument, and Judge Baer suggested that the Eleventh Circuit might well have invalidated the statute if the other argument had been raised.

The core of the Martignon decision, then, is that the anti-bootlegging Act provides some sort of perpetual copyright-like protection of live musical performances and must be categorized as copyright legislation. But it is invalid as such, because it violates the Copyright Clause's provision that artists' rights in their works can only be protected for “limited Times.” Op. at 11.

The Riddle of the Perpetual Ephemeral

“It is undeniable,” the court asserted, “that the anti-bootlegging statute grants seemingly perpetual protection to live musical performances, and therefore would run afoul of the Copyright Clause.” Id. The assertion is not only deniable but also insupportable. The court's notion of perpetual protection for live performances has a surreal quality; a live performance cannot be perpetually protected for the simple reason that there is nothing to protect perpetually. Musical performance exists only in time. As soon as the last note dies away a live performance is gone, never to occur again; it is unique.

Judge Baer clearly understood that a live musical performance is never fixed; indeed, he rather tartly criticized Congress on this point: “The [Committee on the Judiciary] simply failed to recognize, let alone master, one of the central problems here ' that an unrecorded live musical performance is not a writing.” Op. at 7. But the court grasped only half the significance of this fact: Because a live performance is never fixed and is therefore not a writing, it cannot be lawfully protected under copyright. But it is likewise not subject to the limitation on protection of copyrights.

The court did not overlook the latter point. It explicitly considered it (in a footnote) but rejected it as circuitous and “wholly unconvincing.” Op. at 14 n.17. The court acknowledged that Congress would not be subject to Copyright Clause limitations if it legislated for a purpose other than one embodied in that Clause, but it insisted that when Congress enacts “copyright or copyright-like legislation, for the purpose stated in the Copyright Clause, it is constrained by the Copyright Clause's boundaries.” Id. It is the court's conviction that the Act is essentially copyright legislation that dictates this result.

How 'Copyright-Like' Is the Protection?

Judge Baer's sense that the performers of a live concert are getting a copyright-like protection in the anti-bootlegging statute is accurate to a limited degree. The Act makes it criminal, now and forever, to reproduce and sell a bootlegged recording, while copyrighted phonorecords get only limited protection. (The Eleventh Circuit in Moghadam also observed that bootlegged recordings would never fall into the public domain. See 175 F.3d at 1281.) But the criminalization of copying and trafficking is merely a necessary adjunct to the focus of the statute, which is to prohibit the unauthorized fixation of the performance itself. The Act recognizes that a live performance is property ' an artist's creativity manifest in performance ' and it prohibits misappropriating that property via recording and then making money from the selling of the replicated performance. The statute is, quite simply, an anti-theft measure.

The only perpetual aspect of the anti-bootlegging protection, the ban against selling a purloined performance is, in effect, a permanent prohibition against fencing stolen goods. The prohibition of unauthorized recording would be toothless if the illicit recordings could be distributed for profit. No one would argue that Congress cannot legislate against this sort of conduct where, as in this case, it clearly affects commerce. Although the prohibition may look like a copyright protection, copyright protects only those who have a right to make the recordings. The anti-bootlegging Act prohibits reproducing and selling recordings by those who never had a right to fix the work in the first place. The Act allows artists to control whether their performances are extended beyond the immediate audience.

The Constitutional Balance

The concern of copyright protection is to provide incentives for creative work by regulating distribution of copies, for it is generally through replication that a work can become economically valuable. There is little reason to provide an incentive to engage in a live performance because it is a one-time experience of limited scope, beneficial only to the audience in the concert venue, but recordings of a performance can reach millions. Only a recording of a live performance can be copied, however, and only it need be protected under copyright. The balance between preserving the incentive to artists and edifying society through dissemination of creative work is maintained in the limited protection afforded phonorecords under the copyright laws.

But the public has no right ' ever ' to a recording of a performance that was never authorized for recording. There is nothing in the constitution that says Congress may not, pursuant to some other authority, protect against theft simply because an incident of that protection is similar to a copyright protection.

The courts in both Martignon and Moghadam agreed that the anti-bootlegging statute extends “copyright-like” protection. The Eleventh Circuit did not assume as the Martignon court did that such protection must proceed, if at all, from Congress's Copyright Clause power. Rather, it recognized that each of the constitutional powers of Congress is alternative to the other powers, and what cannot be done under one of them may very well be doable under another. 175 F.3d at 1277, citing Heart of Atlanta Motel, Inc. v. United States , 379 U.S. 241 (1964); The Trade-Mark Cases, 100 U.S. 82 (1879); Authors League of America v. Oman , 790 F.2d 220 (2nd Cir. 1986). Only where the enactment conflicts directly with a limitation in the constitution would the legislation be invalid. See Railway Labor Executives Ass'n v. Gibbons , 455 U.S. 457 (1982). This analysis avoided the snag of preclusive classification.

But any analysis proceeding from the assumption that the Act's protections are quasi-copyright risks encounter with the prickly argument that a copyright protection masquerading as something else is illegally evading constitutional limits. The better analysis is that, however similar it might appear in one aspect, the anti-bootlegging protection is fundamentally different in nature from copyright.

Congress can and does create protections of other sorts of property that affect interstate commerce. Consider as only one example the allocation of rights to the airwaves. It can also criminalize theft of such property and profit therefrom. The Founding Fathers recognized that creative effort results in a certain sort of socially valuable product that might not be readily understood and respected as conventional property, and therefore might not be economically availing. They permitted the government to extend incentives for this sort of effort in the form of limited legal protection. They could not have imagined the capability to steal a live performer's work via surreptitious electronic recording. Nevertheless, their concept of “writings,” expansively defined to comprehend new technology, protects ' and circumscribes the protection of ' legitimate recordings. The balance struck by those gentlemen is not offended by Congress declaring it impermissible to misappropriate and exploit property by a means they could not have foreseen.