Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
the legislative power contained in the IP clause.141However, that was not the end of the matter and the SupremeCourt proceeded to test the validity of the statute against theCommerce Clause. As the Commerce Clause at that time wasnarrowly construed, the legislation was not upheld. Since thattime, an expanding view of the ambit of the Commerce Clausemeans that today the modern variant of this trademark law, theLanham Act, is seen to be an exercise of the commerce clause.142The Eleventh Circuit Court of Appeals summarised this point,saying that “although the 1876 Act did not survive due to therestrictive view of the Commerce Clause prevailing at that time,the Supreme Court’s analysis in the Trade-Mark Cases stands forthe proposition that legislation, which would not be permittedunder the Copyright Clause, could nonetheless be permitted underthe Commerce Clause, provided that the independentrequirements of the latter are met.”143However, the Court noted that another line of authority stoodin contrast to the Trade-Mark Cases and needed moreconsideration. In Railway Labor Executives’ Ass’n v. Gibbons,144the Supreme Court considered a statute enacted by Congress thatpurported to alter a pending bankruptcy case by requiring thedebtor railroad company’s bankruptcy estate to pay $75 million tothe company’s former employees. That statute directly clashedwith the Bankruptcy Clause of the United States Constitution,145which provides that Congress is empowered to pass “uniform”bankruptcy laws, because the law targeted a particular situationand was anything but uniform. The Supreme Court rejected theview that the legislation could nevertheless be sustained underthe Commerce Clause, which contains no uniformity requirement,stating that “if we were to hold that Congress had the power toenact nonuniform bankruptcy laws pursuant to the CommerceClause, we would eradicate from the Constitution a limitation onthe power of Congress to enact bankruptcy laws.”146 The Court141. See id. at 96-98.142. See Michael B. Gerdes, Comment, Getting Beyond Constitutionally MandatedOriginality as a Prerequisite for Federal Copyright Protection, 24 Ariz. St. L.J. 1461,1467 (1992).143. Moghadam, 175 F.3d at 1278.144. 455 U.S. 457 (1982).145. U.S. Const. art. I, § 8, cl. 4146. Gibbons, 455 U.S. at 468-69.
econciled the authorities, saying:We note that there is some tension between the formerline of cases (Heart of Atlanta, the Trade-Mark Cases andAuthors League) and the Railway Labor Executives case.The former cases suggest that in some circumstances theCommerce Clause can be used by Congress to accomplishsomething that the Copyright Clause might not allow.But the Railway Labor Executives case suggests that insome circumstances the Commerce Clause cannot be usedto eradicate a limitation placed upon Congressional powerin another grant of power. For purposes of the instantcase, we resolve this tension in the following manner. Inresolving this tension and in reaching our conclusion inthis case, we undertake a circumscribed analysis,deciding only what is necessary to decide this case, andwe reach a narrow conclusion. First, as described above,we hold the anti-bootlegging statute satisfies the“substantial effects” test of the post-Lopez CommerceClause jurisprudence. Second, following the former lineof cases (Heart of Atlanta, the Trade-Mark Cases andAuthors League), we hold that in some circumstances theCommerce Clause indeed may be used to accomplish thatwhich may not have been permissible under theCopyright Clause. We hold that the instant case is onesuch circumstance in which the Commerce Clause may bethus used. It is at this point that we must resolve thetension with Railway Labor Executives.Resolving this tension, we take as a given that there aresome circumstances, as illustrated by Railway LaborExecutives, in which the Commerce Clause cannot beused by Congress to eradicate a limitation placed uponCongress in another grant of power. For the reasons thatfollow, we hold that the instant case is not one suchcircumstance. We hold that the Copyright Clause doesnot envision that Congress is positively forbidden fromextending copyright-like protection under otherconstitutional clauses, such as the Commerce Clause, toworks of authorship that may not meet the fixationrequirement inherent in the term “Writings.” The grantitself is stated in positive terms, and does not imply any
- Page 46 and 47: the Paris Convention for the Protec
- Page 48 and 49: directly or indirectly.159 In other
- Page 50 and 51: of resources that qualifies that po
- Page 52 and 53: wish to encourage private lawsuits,
- Page 54 and 55: contract.”185 While section 1405(
- Page 56 and 57: The Directive will inevitably drive
- Page 58 and 59: the process through which digital p
- Page 60 and 61: the United States or the trade and
- Page 62 and 63: patent law is the utilitarian ethic
- Page 64 and 65: a work to be publicly identified as
- Page 66 and 67: the United States, the power of the
- Page 68 and 69: Theory one proposes to reward the a
- Page 70 and 71: of intellectual property rights mus
- Page 72 and 73: only such as are original, and are
- Page 74 and 75: emedies set forth in section 1406.T
- Page 76 and 77: eproduced, though there be no ingen
- Page 78 and 79: the same, or substantially the same
- Page 80 and 81: with respect to “patents of inven
- Page 82 and 83: Because, in part of the joint reaso
- Page 84 and 85: even by the plaintiffs today.86The
- Page 86 and 87: statute: the “Limited Times” re
- Page 88 and 89: head of power. It is not clear whet
- Page 90 and 91: elationship of power between the Co
- Page 92 and 93: history dealing with either provisi
- Page 94 and 95: the parameters of the propertizatio
- Page 98 and 99: negative pregnant that suggests tha
- Page 100 and 101: scope of the Commerce Clause in the
- Page 102 and 103: gave incentive for people to expres
- Page 104 and 105: ejected this purported distinction
- Page 106 and 107: talk, communicate or consume inform
- Page 108 and 109: frameworks that will allow diversit
- Page 110 and 111: that a monopolist should not seek t
- Page 112 and 113: motivating force.While antitrust or
- Page 114 and 115: unjustifiable anti-competitive cond
- Page 116 and 117: his refusal to sell or license his
- Page 118 and 119: defense and exploitation of the cop
- Page 120 and 121: the information age there have been
- Page 122 and 123: In response to Intel’s argument t
- Page 124 and 125: Court of First Instance in concludi
- Page 126 and 127: to oust competitors, there was noth
- Page 128 and 129: as a digital property owner, which
- Page 130 and 131: anti-competitive use of monopoly po
- Page 132 and 133: certain circumstances, exempted fro
- Page 134 and 135: for circumventing a technological p
- Page 136 and 137: DMCA creates an exclusive right in
- Page 138 and 139: circumventing a TPM in order to loo
- Page 140 and 141: “staple article of commerce” do
- Page 142 and 143: commerce.”320 Is innovation stifl
- Page 144 and 145: anner advertisement company DoubleC
econciled the authorities, saying:We note that there is some tension between the formerline <strong>of</strong> cases (Heart <strong>of</strong> Atlanta, the Trade-Mark Cases andAuthors League) and the Railway Labor Executives case.The former cases suggest that in some circumstances theCommerce Clause can be used by Congress to accomplishsomething that the Copyright Clause might not allow.But the Railway Labor Executives case suggests that insome circumstances the Commerce Clause cannot be usedto eradicate a limitation placed upon Congressional powerin another grant <strong>of</strong> power. For purposes <strong>of</strong> the instantcase, we resolve this tension in the following manner. Inresolving this tension and in reaching our conclusion inthis case, we undertake a circumscribed analysis,deciding only what is necessary to decide this case, andwe reach a narrow conclusion. First, as described above,we hold the anti-bootlegging statute satisfies the“substantial effects” test <strong>of</strong> the post-Lopez CommerceClause jurisprudence. Second, following the former line<strong>of</strong> cases (Heart <strong>of</strong> Atlanta, the Trade-Mark Cases andAuthors League), we hold that in some circumstances theCommerce Clause indeed may be used to accomplish thatwhich may not have been permissible under theCopyright Clause. We hold that the instant case is onesuch circumstance in which the Commerce Clause may bethus used. It is at this point that we must resolve thetension with Railway Labor Executives.Resolving this tension, we take as a given that there aresome circumstances, as illustrated by Railway LaborExecutives, in which the Commerce Clause cannot beused by Congress to eradicate a limitation placed uponCongress in another grant <strong>of</strong> power. For the reasons thatfollow, we hold that the instant case is not one suchcircumstance. We hold that the Copyright Clause doesnot envision that Congress is positively forbidden fromextending copyright-like protection under otherconstitutional clauses, such as the Commerce Clause, toworks <strong>of</strong> authorship that may not meet the fixationrequirement inherent in the term “Writings.” The grantitself is stated in positive terms, and does not imply any
Change language