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The Penumbral Public Domain: Constitutional Limits on Quasi-Copyright Legislation

65 Pages Posted: 24 Feb 2008 Last revised: 15 Oct 2010

Aaron Perzanowski

Case Western Reserve University School of Law

Date Written: October 14, 2010


This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8.

The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and the Second Circuit's recent analysis of them in United States v. Martignon.

In broad terms, the limits inherent in Clause 8 divide into two categories: limits on the sorts of works in which Congress can grant exclusive rights and limits on the types of exclusive rights Congress can use to protect those works. Those limits constrain Congress any time it attempts to legislate within the core subject matter of its copyright power-grants of exclusive rights in expression. Otherwise, they are effectively stricken from the Constitution, violating the basic canon of construction that rejects readings that render text superfluous.

Once the limits of Clause 8 are understood to apply regardless of the power Congress employs, a component of the public domain firmly and permanently rooted in the Constitution emerges. This public domain, defined by the limits of Clause 8, includes both unoriginal and unwritten expressive works - two classes of works that, as a constitutional matter, cannot be the subject of federal grants of exclusive rights. By extending exclusive rights to unwritten live performances, the anti-bootlegging statutes run afoul of the external limits of Clause 8.

Keywords: clause 8, copyright, Martignon, commerce clause, copyright clause, antibootlegging, inter-clause conflict, constitution

Suggested Citation

Perzanowski, Aaron, The Penumbral Public Domain: Constitutional Limits on Quasi-Copyright Legislation (October 14, 2010). University of Pennsylvania Journal of Constitutional Law, Vol. 10, No. 5, p. 1081, 2008. Available at SSRN:

Aaron Perzanowski (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States


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