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Bootlegged Performances: Which Constitutional Clause Applies?

By Frederick Whitmer

This article continues the theme of an article I wrote in late 2004 concerning U.S. v. Martignon, 346 F. Supp. 2d 413 (S.D.N.Y. 2004), in which the district court for the Southern District of New York found that 18 U.S.C. '2319A (the 'anti-bootleg statute') was unconstitutional on the ground that Congress had exceeded its delegated power to legislate copyright law when it enacted the statute. My previous article observed that Martignon implicated several important and fundamental public policies in reaching its decision, among which are the protection of intellectual property, constitutional limits on congressional power to enact laws, freedom of expression as protected by the First Amendment, and the necessity of laws threatening a citizen's liberty to be definite and within a legitimate ambit of congressional authority to act.

The Second Circuit Court of Appeals decided the appeal in U.S. v. Martignon, 2007 WL 1695089 (2d Cir. June 13, 2007), this past June and has now issued a ruling that underscores the clash of fundamental policies that this case presents. As this article describes, the Second Circuit reversed the district court, finding that the Constitution does indeed legitimate Congress' legislative exercise to extend criminal penalties against bootleg recorders of live performances.

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