What if the Anti-Bootlegging Statutes are Upheld under the Commerce Clause?

Abstract:     
The United States has altered its copyright laws to be more in conformity with the European Union and the WIPO. In doing so, the laws of the United States have brushed against the Constitution. Most of the constitutional challenges to the laws have been unsuccessful. In the case of the "anti-bootlegging" statutes, however, the courts have been all over the place with their constitutional analysis. While the "anti-bootlegging" statutes were promulgated under the Copyright Clause, and included in Title 17, courts have upheld them under the Commerce Clause - despite no mention of the Commerce Clause at all in the legislative history. Commerce Clause authority for what is a copyright type legislation sets up a bizarre precedent, for it can render the commerce clause superfluous, or even worse, have perpetual protection for non-copyrightable works. The Supreme Court should get one of the cases eventually, but for now we have Commerce Clause authority for granting perpetual protection to live musical performance.

Number of Pages in PDF File: 21

Keywords: anti-bootlegging, commerce clause, copyright clause, constitutional law, copyright law, intellectual property, copyright, constitution

JEL Classification: K39, K10, K30

Accepted Paper Series