The Anti-Bootlegging Provisions: Congressional Power and Constitutional Limitations

Courts and scholars have considered the constitutional validity of 17 U.S.C. § 1101 (civil), and 18 U.S.C. § 2319A (criminal), known together as the anti-bootlegging provisions. These provisions prohibit unauthorized recording, copying, and distribution of live musical performances. The provisions have been challenged in three cases, resulting in five published opinions. Two district court opinions held the provisions unconstitutional, but subsequent opinions vacated those decisions. Notwithstanding a sharp division among copyright scholars, the courts have upheld these provisions. The discussion surrounding them is part of a continuing struggle to ascertain limits on congressional power to regulate copying and distribution of expression. The latest decision in this area, United States v. Martignon, 492 F.3d 140 (2d Cir. 2007), found that Congress had the power to enact § 2319A, but left two major issues unresolved. First, it only considered the constitutionality of the criminal provision, and its analysis cast doubt on the validity of the companion civil provision that was not before the court. Second, Martignon did not consider the free speech challenge to the statute and remanded the case for consideration of that issue. This Article argues that the Constitution firmly supports Congress\u27s power to enact the anti-bootlegging provisions as an exercise of the Commerce Clause, which does not conflict with the Copyright Clause, and does not violate the First Amendment