Mixing up the medicine: a remedy for constitutional inter-clause conflicts and the case of the anti-bootlegging statutes.

AuthorSila, Altin

INTRODUCTION I. JUDICIAL APPROACHES TO THE ANTI-BOOTLEGGING STATUTES A. The Eleventh Circuit's Decision in Moghadam B. The Martignon Decisions 1. The District Court's Opinion 2. The Second Circuit's Opinion C. The KISS Decisions 1. The KISS I Opinion 2. The KISS II Opinion II. ASSESSING THE EXISTING AND PROPOSED METHODS OF CONSTITUTIONAL INTERPRETATION . A. The Strict Categorization Approach B. The Strictly Alternative Approach C. The Fundamental Inconsistency Approach 1. The Clause-Bound Form 2. The Fundamental Policy Form III. A PROPOSED METHOD OF ANALYSIS: HOLISTIC CATEGORIZATION A. The Method of Holistic Categorization B. Justification 1. The Holistic View of the Constitution 2. The Two-Step Analysis 3. Reconciliation with Supreme Court Precedent IV. APPLYING HOLISTIC CATEGORIZATION TO THE ANTI-BOOTLEGGING STATUTES A. Categorizing the Anti-Bootlegging Statutes 1. Conceptualizing the Copyright Clause's Realm 2. Determining Whether the Anti-Bootlegging Statutes Fall Within the Scope of the Copyright Clause 3. Determining Whether the Anti-Bootlegging Statutes Fall Within the Scope of the Commerce Clause B. Applying the Relevant Limitations to the Anti-Bootlegging Statutes 1. Applying the "Limited Times" Requirement 2. Applying the Fixation Requirement CONCLUSION INTRODUCTION

The Constitution contains many enumerated grants of congressional power. Some of these grants, such as the Commerce Clause, (1) are extremely broad and contain no real limitations. Other grants, such as the Bankruptcy Clause (2) and the Copyright Clause, (3) are much narrower, concerning a specific type of law and limiting Congress's power to legislate. Some laws concern both a broad and a narrow grant of power. In the situations where constitutional grants of authority appear to overlap, both are relevant in determining whether the Constitution grants Congress authority to pass a law.

Laws enacted under these circumstances raise an important and difficult question of constitutional interpretation: when an enumerated grant of power specifically addresses the realm of conduct that Congress seeks to regulate but limits Congress's authority to act, can Congress instead act under a broader, alternative grant of power? This complicated issue has been termed the problem of inter-clause conflicts. (4) The Supreme Court has confronted inter-clause conflicts on only a handful of occasions in a variety of contexts, and it has been inconsistent in its method of analysis, arriving at what some courts and commentators consider to be contradictory conclusions. As a result, lower courts have been left with little guidance on how to proceed in the rare circumstances when this important question arises.

One of these circumstances is the relationship between the Copyright Clause and the Commerce Clause. Laws passed by Congress in 1994 that outlaw the "bootlegging" (i.e., the recording, trading, and selling) of live musical performances present an inter-clause conflict. Congress enacted the bootlegging ban in two forms: a civil provision, which Congress added as Chapter 11 of the Copyright Act, (5) and a criminal provision.(6) The statutes were included as part of the Uruguay Round Agreements Act (URAA), (7) which Congress enacted in order to comply with the United States' obligations under the Trade-Related Aspects of Intellectual Property (TRIPs), (8) a massive intellectual property treaty. (9) The civil anti-bootlegging provision states that:

Anyone who, without the consent of the performer or performers involved--

(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), regardless of whether the fixations occurred in the United States,

shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright. (10) The criminal anti-bootlegging provision is identical in its application, except that it adds an additional requirement: that the actions be taken "knowingly and for purposes of commercial advantage or private financial gain." (111)

The anti-bootlegging statutes provide a perfect model for confronting the question of constitutional inter-clause conflicts. Although Congress passed both provisions to comply with an intellectual property treaty and placed the civil provision within the same title as the Copyright Act, the anti-bootlegging statutes depart from traditional copyright law in a number of respects. First, the protections the statutes offer are very similar to copyright, yet they do not provide the full protections and rights that traditional copyright law affords. (12) Second, and more importantly, the anti-bootlegging statutes concern unfixed performances, and the rights the statutes grant are perpetual.(??)s This is unlike all prior federal copyright laws in American history. (14) Fixation and a limited term of protection are widely regarded as requirements for protection under the Copyright Clause. (15) It thus appears highly probable that if the anti-bootlegging statutes are examined solely under the Copyright Clause (i.e., without regard to other constitutional provisions), they will be found unconstitutional. However, because the trading or selling of recordings of live musical performances undoubtedly affects interstate and foreign commerce, if the anti-bootlegging statutes are viewed solely under the Commerce Clause (i.e., without regard to the Copyright Clause), they will likely be deemed constitutional. Therefore, the anti-bootlegging statutes present an apt example for exploring inter-clause conflicts and for analyzing potential solutions to that problem.

A handful of courts have ruled on the constitutionality of the anti-bootlegging statutes and have addressed the constitutional inter-clause conflict question. In some cases, courts have addressed the criminal provision's constitutionality, reaching different conclusions using different reasoning. In cases addressing the civil provision's constitutionality, courts have also reached different conclusions using different reasoning. A number of commentators have taken issue with these decisions and their methods of analysis, some proposing alternative approaches.

In this Comment, I offer a method of constitutional analysis that I have termed "holistic categorization" as a possible solution to the problem of constitutional inter-clause conflicts. This method is grounded in a view of the Constitution as an entity greater than the sum of its parts, in which the relationship between clauses must be considered in its interpretation. I propose a two-step analysis under this approach. First, it must be determined whether the statute at issue falls within the scope of a given constitutional power. This determination relies upon a general conception of the scope of the relevant clause based upon its text and underlying policy. It also requires an understanding of what the statute at issue directly does, as well as the statute's legislative history and construction. Second, once the applicable constitutional powers have been identified, it must be determined whether the statute violates the constitutional limitations upon those powers. This method comports with Supreme Court precedent and, when applied to the anti-bootlegging statutes, finds that the statutes are unconstitutional under the limitations of the Copyright Clause.

In Part I of this Comment, I will introduce and discuss the approaches to inter-clause conflicts that courts have taken in the context of the anti-bootlegging statutes, as well as the Supreme Court opinions to which these courts have looked for guidance outside of the bootlegging context. In Part II, I present my own categorization of the various existing and proposed approaches to inter-clause conflicts, providing other scholars' commentary on the approaches and offering my own criticisms. In Part III, I offer holistic categorization as a new method of constitutional interpretation for inter-clause conflicts. I present the approach in detail and justify each of its rules and factors, grounding the approach in well-established, fundamental principles of constitutional interpretation. Finally, in Part IV I apply holistic categorization to the anti-bootlegging statutes and find that the statutes are unconstitutional under the Copyright Clause.

  1. JUDICIAL APPROACHES TO THE ANTI-BOOTLEGGING STATUTES

    Five federal district and circuit courts have discussed the specific question of whether the anti-bootlegging statutes violate the Copyright Clause. Some cases address the criminal provision, and others address the civil provision. Although two district courts held the provisions to be unconstitutional (one addressing the criminal provision and the other the civil provision), both decisions were later reversed. In all five of the opinions, the courts looked to essentially the same Supreme Court precedent for guidance on how to approach the constitutional question of overlapping enumerated powers, but each interpreted the Court's decisions somewhat differently. In this Part, I discuss each opinion in turn.

    1. The Eleventh Circuit's Decision in Moghadam

      The first court to address the constitutionality of either anti-bootlegging statute was the Eleventh Circuit in United States v. Moghadam, which held the criminal anti-bootlegging statute to be a valid exercise of Congress's authority under the Commerce Clause. (16) In the case, Ali Moghadam was indicted for violating the anti-bootlegging statute, (17) His motion to dismiss the indictment on the basis that the statute was unconstitutional was denied, and he...

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