No. 99-879
In the Supreme Court of the United States
ALI MOGHADAM, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
MARK B. STERN
STEPHANIE R. MARCUS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the court of appeals correctly held that petitioner's conviction
under 18 U.S.C. 2319A, for knowingly distributing, selling, and trafficking
in unauthorized recordings of live musical performances, could be sustained
pursuant to the Commerce Clause.
In the Supreme Court of the United States
No. 99-879
ALI MOGHADAM, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-28) is reported at 175
F.3d 1269. The decisions of the district court are unreported.
JURISDICTION
The judgment of the court of appeals was entered on May 19, 1999. A petition
for rehearing was denied on August 27, 1999 (Pet. App. 29). The petition
for a writ of certiorari was filed on November 23, 1999. This Court's jurisdiction
is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a conditional guilty plea in the United States District Court
for the Middle District of Florida, petitioner was convicted of knowingly
distributing, selling, and trafficking in unauthorized recordings of live
musical performances, in violation of 18 U.S.C. 2319A. Petitioner was sentenced
to 24 months' probation and a fine of $8,000. Petitioner appealed, and the
court of appeals affirmed. Pet. App. 1-28.
1. This case involves the constitutionality of 18 U.S.C. 2319A, which makes
the unauthorized recording of live musical performances, and the distribution,
sale or rental of such unauthorized recordings, unlawful. Congress enacted
Section 2319A, among other things, to bring United States law into conformity
with various international agreements and treaties to which the United States
is a party. Section 2319A is drawn from the Agreement on Trade Related Aspects
of Intellectual Property (TRIPs), which was enacted as part of the Uruguay
Round Agreements Act (URAA), and resulted from negotiations of the General
Agreement on Tariffs and Trade (GATT). See Pub. L. No. 103-465, § 1101,
108 Stat. 4809, 4974; Pet. App. 5, 14-15.
In relevant part, Section 2319A provides:
(a) OFFENSE-Whoever, without the consent of the performer or performers
involved, knowingly and for purposes of commercial advantage or private
financial gain-
(1) fixes the sound or sounds and images of a live musical performance in
a copy or phonorecord, or reproduces copies or phonorecords of such a performance
from an unauthorized fixation;
(2) transmits or otherwise communicates to the public the sounds or sounds
and images of a live musical performance; or
(3) distributes or offers to distribute, sells or offers to sell, rents
or offers to rent, or traffics in any copy or phonorecord fixed as described
in paragraph (1), regardless of whether the fixations occurred in the United
States;
shall be imprisoned * * * or fined * * * or both * * * .
18 U.S.C. 2319A. Section 2319A thus prohibits the unauthorized recording,
and the distribution of unauthorized recordings, of the sounds and images
of live musical performances.
2. In 1997, a grand jury in the United States District Court for the Middle
District of Florida returned an indictment charging petitioner with, among
other things, trafficking in unauthorized recordings of the live musical
performances of artists such as Tori Amos and the Beastie Boys, in violation
of Section 2319A. Pet. App. 1-2; Pet. 3. Petitioner moved to dismiss the
indictment on the ground that Section 2319A is unconstitutional, but the
district court denied the motion without opinion. Pet. App. 2. While preserving
his right to challenge the constitutionality of Section 2319A on appeal,
petitioner pleaded guilty to knowingly distributing, selling and trafficking
in unauthorized recordings of live musical performances in violation of
Section 2319A. Pet. App. 1-2 & n.1.
3. Petitioner appealed, and the United States Court of Appeals for the Eleventh
Circuit affirmed. Pet. App. 1-28.
Petitioner's primary argument on appeal was that Congress lacked constitutional
power to enact Section 2319A under either the Copyright Clause, U.S. Const.
Art. I, § 8, Cl. 8, or the Commerce Clause, U.S. Const. Art. 1, §
8, Cl. 3. The court of appeals first turned to Congress's authority under
the Copyright Clause, which affords Congress the power "[t]o promote
the Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings and
Discoveries." U.S. Const. Art. I, § 8, Cl. 8. Petitioner contended
that, under the Copyright Clause, Congress may extend copyright protection
only to "[w]ritings," which must be "fixed" works-i.e.,
works that have been recorded or otherwise memorialized in a physical or
tangible medium. See Pet. App. 8-9. A live musical performance, petitioner
argued, does not meet that "fixation" requirement. Id. at 9-10.
The court of appeals found it unnecessary to address petitioner's Copyright
Clause argument, because it concluded that Congress had the power to enact
Section 2319A under the Commerce Clause. Pet. App. 10. With respect to the
Commerce Clause, the court held that because Section 2319A "clearly
prohibits conduct that has a substantial effect on both commerce between
the several states and commerce with foreign nations," it could be
sustained as an exercise of Congress's commerce power under this Court's
decision in United States v. Lopez, 514 U.S. 549 (1995). Pet. App. 14, 11-16.1
That did not end the court's analysis, however. In its view, "[t]he
more difficult question in this case is whether Congress can use its Commerce
Clause power to avoid the limitations that might prevent it from passing
the same legislation under the Copyright Clause." Pet. App. 16. The
court noted that "each of the powers of Congress is alternative to
all of the other powers, and what cannot be done under one of them may very
well be doable under another." Ibid. The court also acknowledged, however,
that in "some circumstances * * * the Commerce Clause cannot be used
by Congress to eradicate a limitation placed upon Congress in another grant
of power." Id. at 23. Without deciding the question, the court of appeals
assumed arguendo that Congress could not use the Commerce Clause to enact
a statute that was "fundamentally inconsistent" with a limitation
in the Copyright Clause. Pet. App. 23 n.12.
The court of appeals therefore examined whether Section 2319A is incompatible
with the fixation requirement of the Copyright Clause and concluded that
it is not. Pet. App. 25-26. In fact, the court noted, prohibiting unauthorized
recordings (and the distribution of such recordings) of live musical performances
"actually complements and is in harmony with the existing scheme that
Congress has set up under the Copyright Clause." Id. at 24. Preventing
the creation of and trafficking in such unauthorized recordings "promote[s]
the progress of the useful arts by securing some exclusive rights to the
creative author," the court explained, a result that is wholly consistent
with the purpose of the Copyright Clause. Ibid. In addition, although the
subject matter here (a live performance) might not have been "fixed"
or reduced to a writing at the time the bootleg recording was originally
made, the court observed, "it certainly was subject to having been
thus fixed." Ibid.
The court noted that "there is another limitation in the Copyright
Clause that may be implicated by the anti-bootlegging statute: the 'Limited
Times' requirement that forbids Congress from conferring intellectual property
rights of perpetual duration." Pet. App. 26. Petitioner, however, had
failed to challenge Section 2319A on that basis. Id. at 27. Accordingly,
the court stated that it would not decide "whether extending copyright-like
protection under the anti-bootlegging statute might be fundamentally inconsistent
with the 'Limited Times' requirement of the Copyright Clause." Ibid.2
ARGUMENT
The decision of the court of appeals is correct and does not conflict with
any decision of this Court or any other court of appeals. The decision below,
moreover, is the first to address the constitutionality of 18 U.S.C. 2319A,
and addresses only one narrow, limited issue related to that question. Further
review therefore is not warranted.
1. Petitioner contends that the court of appeals erred by holding that Congress
could enact Section 2319A under the Commerce Clause. Pet. 5-20.3 Before
this Court, petitioner does not dispute that the conduct regulated by Section
2319A bears a sufficient relationship to interstate and foreign commerce
to fall within Congress's commerce powers. See Pet. 9-10. Instead, petitioner
argues that, under the Copyright Clause, Congress can protect only "the
[w]ritings" of authors. By permitting Congress to enact Section 2319A
under the Commerce Clause to protect live performances that are not previously
recorded or otherwise reduced to a "writing," he contends, the
decision below "opens the door for Congress to legislate all copyright
protections by way of the Commerce Clause and thus render the Copyright
Clause, and potentially every other limited grant of authority contained
in Article I, Section 8, superfluous." Pet. 6.
a. Petitioner misconstrues the scope and meaning of the court of appeals'
decision. As an initial matter, the court of appeals assumed-without deciding-that
the Copyright Clause may impose limits on Congress's commerce power. Pet.
App. 23 & n.12. "[W]e take as a given that there are some circumstances,"
the court of appeals stated, "in which the Commerce Clause cannot be
used by Congress to eradicate a limitation placed upon Congress in another
grant of power." Id. at 23. For that reason, the court "assume[d]
arguendo, without deciding, that the Commerce Clause could not be used to
avoid a limitation in the Copyright Clause if the particular use of the
Commerce Clause (e.g., [Section 2319A]) were fundamentally inconsistent
with the particular limitation in the Copyright Clause (e.g., the fixation
requirement)." Id. at 23 n.12. In this case, petitioner identifies
only one limit on Congress's power under the Copyright Clause with which
Section 2319A is allegedly inconsistent, namely the "writing"
or "fixation" requirement. After thorough analysis of the Copyright
Clause and Section 2319A, however, the court of appeals concluded that Section
2319A is not fundamentally inconsistent with that requirement. See p. 5,
supra.
Petitioner thus is incorrect to characterize the court of appeals' decision
as holding that the Copyright Clause imposes no limits on Congress's commerce
power. Pet. 6, 19-20. The actual decision was exceedingly narrow. See Pet.
App. 23 ("in reaching our conclusion in this case, we undertake a circumscribed
analysis, deciding only what is necessary to decide this case, and we reach
a narrow conclusion"). The court of appeals merely concluded that,
under the circumstances of the present case, Congress's decision to extend
protection against unauthorized or bootleg recording and distribution of
live musical performances was not "fundamentally inconsistent"
with the "writing" requirement of the Copyright Clause, which
limits its protections to matters that are fixed or recorded in a tangible
medium of expression. Id. at 24-28.
2. The narrowness of the court of appeals' decision and the absence of other
appellate authority on point also counsel against review by this Court.
For example, the court of appeals here did not address myriad other issues,
many of which might have to be decided in petitioner's favor before Section
2319A could be held unconstitutional. First, the court of appeals did not
answer whether Section 2319A could be sustained under the Copyright Clause,
because that issue was not necessary to its decision. See Pet. App. 10 ("Because
we affirm the conviction in the instant case on the basis of an alternative
source of Congressional power, we decline to decide in this case whether
the fixation concept of Copyright Clause can" be extended to cover
live musical performances capable of fixation.). Second, the court of appeals
did not decide the extent to which the Copyright Clause in fact imposes
limits on Congress's power to enact legislation under the Commerce Clause;
instead, the court merely assumed, arguendo, that the Copyright Clause does
impose particular limits. See Pet. App. 23 & n.12. Third, the court
of appeals did not address whether Section 2319A's prohibition on the unauthorized
recording of live musical performances (and the distribution of such recordings)
is consistent with the Copyright Clause's "limited Times" requirement,
because petitioner failed to raise that issue in a timely fashion. Pet.
App. 26-27, 28 n.17. Indeed, petitioner failed to show that, as applied
in this case, the Act afforded protection that exceeded the temporal limitations
that are provided by statute for the protection of copyrights, i.e., the
life of the author plus 70 years, see 17 U.S.C. 302(a) (Supp. IV 1998).
The decision of the court of appeals not only is exceedingly narrow, but
also is the first to have addressed Congress's power to enact Section 2319A.
Thus, no other court of appeals has addressed the one issue the court below
actually decided (that Section 2319A is not fundamentally inconsistent with
the Copyright Clause's "writing" requirement). And no court of
appeals has addressed any of the related legal questions described above.
See pp. 8-9, supra. Under these circumstances, there is no compelling reason
for the Court to consider the matter immediately and without the benefit
of the reasoning or views of other courts of appeals.
3. Petitioner's claim that Section 2319A lies outside Congress's Commerce
Clause powers rests primarily on this Court's decisions in Bonito Boats,
Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989), and Feist Publications,
Inc. v. Rural Telephone Serv. Co., 499 U.S. 340 (1991). See Pet. 16-18.
Neither decision supports petitioner's contention that the Copyright Clause
renders Section 2319A ultra vires.
a. In Bonito Boats, this Court concluded that the Florida intellectual property
law at issue there conflicted with the federal patent statute. Through federal
patent law, the Court explained, Congress had established a "balance"
between the goal of promoting innovation and the desire to promote the use
of innovations to maximum public advantage. See 489 U.S. at 151-152. The
Florida law, the court noted, sought to protect a product design after,
for purposes of federal patent law, it had passed into the public domain.
See id. at 159. Because the Florida law sought to withdraw otherwise unpatentable
innovations from public use, the Court explained, it impermissibly undermined
the balance Congress had established. Id. at 157. The Court did not hold
that Congress itself lacks the power to alter the balance the Constitution
permits it to establish.
In discussing the Copyright Clause in Bonito Boats, the Court did state
that it "contains both a grant of power and certain limitations upon
the exercise of that power." 489 U.S. at 146. That statement, however,
refers to Congress's power under the Copyright Clause alone; it does not
purport to address Congress's power under the Commerce Clause, which was
not at issue in Bonito Boats. Besides, in this case, the court of appeals
assumed for the sake of argument that limits in the Copyright Clause, such
as the "writing" or "fixation" requirement, do limit
Congress's powers under the Commerce Clause. Pet. App. 10, 23 & n.12.
It found, however, that there was no fundamental conflict between those
limits and Section 2319A.
b. Petitioner's reliance on this Court's decision in Feist is similarly
misplaced. In Feist, the Court addressed whether telephone directory white
pages are entitled to copyright protection under the Constitution or the
Copyright Act. 499 U.S. at 363-364. It held that, because the white pages
directory did not qualify as an "original" work, it was not eligible
for copyright protection under the Copyright Clause of the Constitution
or the Copyright Act. Nowhere did the Court specifically address any possible
or further limitations on the scope of Congress's power under the Commerce
Clause.
Recognizing as much, petitioner relies (Pet. 16) not on Feist's holding,
but on its assertion that the "primary objective of copyright is not
to reward the labor of authors, but [t]o promote the Progress of Science
and useful Arts." See 499 U.S. at 349 (internal quotation marks omitted).
The Court made that statement, however, in discussing the basis for the
originality requirement: "To this end, copyright assures authors the
right to their original expression, but encourages others to build freely
upon the ideas and information conveyed by a work." Id. at 349-350
(emphasis added). In this case, the court of appeals expressly concluded
that a "live musical performance clearly satisfies the originality
requirement." Pet. App. 24. Petitioner, moreover, does not raise the
originality requirement in his petition.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
MARK B. STERN
STEPHANIE R. MARCUS
Attorneys
FEBRUARY 2000
1 Petitioner does not challenge the court's holding that Section 2319A satisfies
the requirements set forth in Lopez. Pet. 9-10.
2 Petitioner also raised other contentions on appeal, but the court of appeals
rejected them without discussion, Pet. App. 28 n.18, and petitioner does
not seek review of those contentions in this Court.
3 Petitioner asserts (Pet. 5) that "[a]ll parties concede that section
2319A creates copyright protections and that those protections cannot pass
constitutional muster under the Copyright Clause." See also Pet. 8
("In the Court of Appeals, the government agreed that section 2319A
could not be sustained pursuant to Congress's authority under the Copyright
Clause."). That is not correct. Although the government did not rely
on Congress's powers under the Copyright Clause in the court of appeals,
it never conceded that Section 2319A could not be sustained under those
powers. See Gov't C.A. Br. 20 n.3, 23-24. Nor did the government concede
that Section 2319A creates "copyright protections." Instead, the
government has described the protections extended by Section 2319A as "sui
generis intellectual property rights," which are distinguishable from
copyrights. Id. at 14 & n.2; see Pet. App. 7 (describing rights at issue
as "quasi-copyright" or "sui generis" protections).