Vol 7 No 1 - Roger Williams University School of Law

definition of the word. In fact, since a sound recordingqualifies as a “Writing” in the constitutional sense, “it isnow clear that a writing may be perceptible eithervisually or aurally . . . .” But the fixation requirementseems to have persisted through this expansion. Thus,although in the modern era the term “Writings” allowsCongress to extend copyright protection to a great manythings, those things have always involved some fixed,tangible and durable form.Moghadam argues that a live performance, by definition,has not been reduced to a tangible form or fixed as of thetime of the performance. Moghadam argues that, but forthe bootlegger’s decision to record, a live performance isfleeting and evanescent.Because we affirm the conviction in the instant case onthe basis of an alternative source of Congressional power,we decline to decide in this case whether the fixationconcept of Copyright Clause can be expanded so as toencompass live performances that are merely capable ofbeing reduced to tangible form, but have not been. Forpurposes of this case, we assume arguendo, withoutdeciding, that the above described problems with thefixation requirement would preclude the use of theCopyright Clause as a source of Congressional power forthe anti-bootlegging statute.126E. The Commerce ClauseThe enumerated powers in the United States and AustralianConstitutions are designed to allocate legislative responsibilitiesbetween the federal and state governments. They do notnecessarily limit governmental power or bestow rights onindividuals, although clearly one provision in the AustralianConstitution does—section 51 (31). In recent times seriousarguments have been made—in the context of proposed databaselegislation and the Digital Millennium Copyright Act(DMCA)127—that the specific requirements of the IP clause define126. 175 F.3d at 1273-74.127. 17 U.S.C. §§ 1201-1332 (Supp. IV 1998).