Vol 7 No 1 - Roger Williams University School of Law

history dealing with either provision because the Act was rushedthrough Congress on fast-track procedures, yet what existssuggests that Congress viewed the anti-bootlegging provisions asenacted pursuant to its Copyright Clause authority.121The court explained that the rights created by the antibootleggingprovisions were actually hybrid rights that in someways resembled the protection of copyright law but in other wayswere distinct.122 The court explained that it was unclear whetherlongstanding concepts generally applicable to copyright law suchas fair use, the work-for-hire doctrine and limited duration, applyto the anti-bootlegging provisions.123 The court noted that incontrast to the six exclusive rights of a copyright owner spelled outin 17 U.S.C. section 106, it appeared that the only exclusive rightcreated by the anti-bootlegging statute is to record and/or recommunicateone’s performance.124 For all of those reasons, thecourt concluded that the protection the anti-bootlegging statuteconfers on musicians is best described as “quasi-copyright” or suigeneris protection.125Judge Anderson, writing the opinion for the court, held thestatute to be validly enacted under the Commerce Clause. On theissue of the Copyright Clause, the court explained:This positive grant of legislative authority includesseveral limitations. Of these limitations, Moghadam hasrelied in the instant case only on the concept of “fixation”which is said to be embedded in the term “Writings.”The concept of fixation suggests that works are notcopyrightable unless reduced to some tangible form. “Ifthe word ‘writings’ is to be given any meaningwhatsoever, it must, at the very least, denote somematerial form, capable of identification and having amore or less permanent endurance.” Of course, the term“Writings” has been interpreted so broadly as to includemuch more than writings in the literal sense, or the lay121. 140th Cong. Rec. H11441, H11457 (daily ed. Nov. 29, 1994) (statement of Rep.Hughes) (“There are a number of changes in copyright that will advance our interestsin the area of bootlegging, which is going to basically protect our country.”).122. Moghadam, 175 F.3d at 1272.123. Id. at 1273.124. Id.125. Id.