The Samuelson Clinic submitted a brief amicus curiae on behalf of thirty intellectual property and constitutional law professors in the case of United States v. Martignon. The case concerns the federal criminal anti-bootlegging statute, which the U.S. District Court for the Southern District of New York struck down last year because it violated both the Limited Times and Writings requirements in the Constitution’s Copyright Clause.
In this amicus brief, the Clinic argues on behalf of thirty law professors that the district court decision should upheld on three distinct grounds. First, the provisions of at issue in this case deal with copies of performances and therefore are clearly Writings within the scope of the Copyright Clause; because they do not contain a durational limit, they should be struck down. Second, even ephemeral non-written live performances governed by the statute are original and expressive works within the exclusive domain of the Copyright Clause, and that clause simultaneously denies such works protection because they are not Writings. Finally, the Clinic argues that the statute should be struck down because it is overbroad and vague in violation of the First Amendment.
By affirming the district court’s decision, the Second Circuit would acknowledge that Congress cannot avoid the limitations on copyright-like protections demanded by the Constitution by acting under another grant of authority. No matter what the court decides, the court’s decision will likely have wide-ranging implications for the development of copyright law.