                                                                                [PUBLISH]


                     IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                                                                        FILED
                                                                 U.S. COURT OF APPEALS
                               ________________________            ELEVENTH CIRCUIT
                                                                        05/19/99
                                      No. 98-2180                   THOMAS K. KAHN
                               ________________________                  CLERK

                            D. C. Docket No. 97-53-CR-ORL-18

UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                          versus

ALI MOGHADAM,

                                                                       Defendant-Appellant.

                               ________________________

                        Appeal from the United States District Court
                            for the Middle District of Florida
                             _________________________
                                     (May 19, 1999)

Before ANDERSON, Chief Judge, HULL, Circuit Judge, and HAND*, Senior Circuit Judge.

ANDERSON, Chief Judge:



________________
*Honorable William B. Hand, Senior U.S. District Judge for the Southern District of Alabama,
sitting by designation.
       In 1994, Congress passed a statute criminalizing the unauthorized recording, the transmission

to the public, and the sale or distribution of or traffic in unauthorized recordings of live musical

performances. See 18 U.S.C. § 2319A. Appellant Ali Moghadam was convicted of violating that

law (herein sometimes referred to as the “anti-bootlegging statute”) after he pleaded guilty to

knowingly distributing, selling, and trafficking in bootleg (unauthorized) compacts discs featuring

live musical performances by recording artists including Tori Amos and the Beastie Boys. The

present appeal challenges the constitutional power of Congress to enact this legislation.1 In the

district court, Moghadam moved to dismiss the indictment, arguing that the statute was

unconstitutional because it did not fall within any of the federal legislative powers enumerated in

Article I, § 8 of the Constitution. The government responded that it was constitutional under either

the Copyright Clause or the Commerce Clause. The district court denied the motion to dismiss. The

constitutionality of the anti-bootlegging statute appears to be a question of first impression in the

nation. For the reasons that follow, and in the limited circumstances of this case, we reject

Moghadam’s constitutional challenge, and therefore affirm Moghadam’s conviction.




       1
           In pleading guilty, Moghdam duly preserved his right to appeal.

                                                 2
               I. BACKGROUND ON THE ANTI-BOOTLEGGING STATUTE

       A brief overview of the history of statutory protection for music and musical performances

is in order. Musicians or performers may enjoy copyright or copyright-like protection in three

things, which are important to keep distinct. First, a musical composition itself has been protected

by statute under copyright law since 1831. See 17 U.S.C. § 102(a)(2) (providing that “musical

works, including any accompanying words” are protectable subject matter); Todd D. Patterson,

Comment, The Uruguay Round’s Anti-Bootlegging Provision: A Victory for Musical Artists and

Recording Companies, 15 Wis. Int’l L. J. 371, 380-83 (1997). However, for most of the nation’s

history, sound recordings were not protected.        See Patterson, supra, at 380 (“The important

distinction between the first copyright statutes of 1831 and what would ultimately become the Sound

Recording Act of 1971 is that these early statutes protected the reproduction of musical notation

rather than the reproduction of actual sound.”). In 1971, Congress extended copyright protection

to sound recordings. Sound Recording Act of 1971, Pub. L. No. 92-140, 85 Stat. 391;2 see also 17

U.S.C. § 102(a)(7) (including “sound recordings” in the list of copyrightable “works of authorship”).

This meant that persons who made unauthorized reproductions of records or tapes, which is known

as “piracy,”3 could be prosecuted or face civil liability for copyright infringement. See 17 U.S.C.




       2
         The entire copyright code was subsequently overhauled by the Copyright Act of 1976,
Pub. L. No. 94-553, 90 Stat. 2541, but the new statute carried forward the substance of the Sound
Recording Act of 1971.
       3
         “Piracy,” which refers to an unauthorized duplication of a performance already reduced
to a sound recording and commercially released, is conceptually distinct from “bootlegging,”
which has been defined as the making of “an unauthorized copy of a commercially unreleased
performance.” Dowling v. United States, 473 U.S. 207, 209 n.2 (1985).

                                                 3
§ 114 (defining the scope of exclusive rights of the holder of a copyright in sound recordings). The

copyright law, especially as amended by further statutes,4 went far toward securing the rights of

musicians and recording artists to receive fair benefit from their creative efforts.

       However, following passage of the Sound Recording Act of 1971, a void still remained. No

protection at the federal level extended directly to unrecorded live musical performances.5

Therefore, a bootlegger could surreptitiously record a live musical performance and engage in

unauthorized distribution of the recording or copies thereof, without having violated copyright law.

This gap in copyright protection, exacerbated by the growing market for such bootleg copies,

motivated Congress to enact the anti-bootlegging provision at issue in the instant case.

       The anti-bootlegging statute grew out of the Agreement on Trade Related Aspects of

Intellectual Property (“TRIPs”), which has been described as “the highest expression to date of

binding intellectual property law in the international arena.” David Nimmer, The End of Copyright,

48 Vand. L. Rev. 1385, 1391-92 (1995) [hereinafter Nimmer, The End of Copyright]. TRIPs

became law by operation of the Uruguay Round Agreements Act (“URAA”), Pub. L. No. 103-465,




       4
          See Piracy and Counterfeiting Amendments Act of 1982, Pub. L. No. 97-180, 96 Stat.
91 (codified at 18 U.S.C. §§ 2318-2319) (imposing criminal liability for trafficking in counterfeit
labels attached to phonorecords); Record Rental Amendment of 1984, Pub. L. No. 98-450, 98
Stat. 1727 (codified at 17 U.S.C. §§ 109(b), 115(c)) (prohibiting rental of phonorecords to the
public for commercial advantage); Audio Home Recording Act of 1992, Pub. L. No. 102-563,
106 Stat. 4237 (codified at 17 U.S.C. §§ 1001-1010) (implementing a royalty payment system
and a serial copyright management system for digital audio recording); Digital Performance
Rights in Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336 (codified at scattered
sections of 17 U.S.C.) (granting public performance rights for digital transmission of sound
recordings).
       5
         There were and still are, however, numerous examples of statutory protection for live
musical performances at the state level. See, e.g., Fla. Stat. § 540.11(2)(a)(3).

                                                  4
108 Stat. 4809 (1994), a comprehensive act dealing with matters of international trade. 18 U.S.C.

§ 2319A (which corresponds to § 513 of the URAA, 108 Stat. at 4975), provides, in pertinent part:

       (a) 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 . . . .

The URAA also enacted a similar provision establishing civil liability for the same conduct (but

omitting the commercial advantage or private financial gain requirement). See 17 U.S.C. § 1101

(corresponding to § 512 of the URAA, 108 Stat. at 4974). There is little legislative history dealing

with either provision because the URAA was rushed through Congress on fast-track procedures.

However, what little legislative history exists tends to suggest that Congress viewed the anti-

bootlegging provisions as enacted pursuant to its Copyright Clause authority. See 140 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 interests in the area of bootlegging, which is going to

basically protect our country.”).

       The rights created by the anti-bootlegging provisions in URAA are actually hybrid rights that

in some ways resemble the protections of copyright law but in other ways are distinct from them.

See 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8E.03[B][1], at 8E-16


                                                      5
[hereinafter Nimmer on Copyright] (“The unfixed musical performances protected under [URAA]

are accorded something approximating, but not equaling, copyright protection.”). For example,

although the civil provision is incorporated into Title 17 of the United States Code and borrows the

remedies that apply to copyright infringement, neither the civil nor the criminal provision meshes

with the overall structure of the copyright code. See Patterson, supra, at 410-12. Congress could

have amended 17 U.S.C. § 102 to include live musical performances in the list of protectable subject

matter, but it did not do so. Likewise, it is unclear whether longstanding concepts generally

applicable to copyright law such as fair use, see 17 U.S.C. § 107, the work-for-hire doctrine, limited

duration, see 17 U.S.C. § 302, and the statute of limitations, 17 U.S.C. § 507(b), carry over to the

anti-bootlegging provisions. See 3 Nimmer on Copyright, supra, § 8E.03[B][2][b], at 8E-13 to 23;

see also Susan M. Deas, Jazzing up the Copyright Act? Resolving the Uncertainties of the United

States Anti-Bootlegging Law, 20 Hastings Comm. & Ent. L.J. 567, 599-623 (1998) (providing

detailed treatment of the host of interpretive problems associated with the anti-bootlegging statute);

Nimmer, The End of Copyright, supra, at 1399 (“The provision of the law is so simple . . . and the

language that Congress legislated so sparse, that most questions one could ask are simply not

addressed in its implementation.”). Finally, in contrast to the six exclusive rights of a copyright

owner spelled out in 17 U.S.C. § 106, it appears that the only exclusive right created by the anti-

bootlegging statute is to record and/or re-communicate one’s performance.6 For all of these reasons,




       6
         We raise these complexities only to differentiate between this statute and pure
copyright provisions. Because none of them is implicated by the instant case and Moghadam’s
conduct falls squarely within the anti-bootlegging statute, we need not speculate as to the
appropriate resolution of these questions.

                                                  6
the protections that the anti-bootlegging statutes confer on musicians are best described as “quasi-

copyright” or sui generis protections.



        II. WHETHER THE ANTI-BOOTLEGGING STATUTE CAN BE SUSTAINED
              UNDER THE COPYRIGHT CLAUSE OF THE CONSTITUTION

        Our analysis of the constitutionality of § 2319A begins with the Copyright Clause of the

United States Constitution. By that Clause, Congress is empowered “[t]o promote the Progress of

Science and the 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. 8.7 This positive

grant of legislative authority includes several limitations. See, e.g., Feist Pubs., Inc. v. Rural Tel.

Serv. Co., Inc., 499 U.S. 340 (1991) (holding that the word “Writings” in the Copyright Clause

allows Congress to extend protection only to works of authorship that are original). Of these

limitations, Moghadam has relied 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 not copyrightable unless reduced to some

tangible form. “If the word ‘writings’ is to be given any meaning whatsoever, it must, at the very

least, denote some material form, capable of identification and having a more or less permanent

endurance.” 1 Nimmer on Copyright, supra, § 1.08[C][2], at 1-66.30 (internal quotation marks

omitted); see also Goldstein v. California, 412 U.S. 546, 561 (1973) (“[W]ritings ... may be

interpreted to include any physical rendering of the fruits of creative intellectual or aesthetic labor.”).

Of course, the term “Writings” has been interpreted so broadly as to include much more than


        7
       The word “Discoveries” is thought to refer to the counterpart area of patent law. See 1
Nimmer on Copyright, supra, § 1.08, at 1-66.25 n.1.

                                                    7
writings in the literal sense, or the lay definition of the word.8 See 17 U.S.C. § 102(a)(4)

(pantomimes and choreographic works); id. § 102(a)(6) (motion pictures and other audiovisual

works); id. § 102(a)(7) (sound recordings); 1 Nimmer on Copyright, supra, § 1.08[B], at 1-66.25-26.

In fact, since a sound recording qualifies as a “Writing” in the constitutional sense, Shaab v.

Kleindienst, 345 F. Supp. 589, 590 (D.D.C. 1972) (per curiam), “it is now clear that a writing may

be perceptible either visually or aurally,” 1 Nimmer on Copyright, supra, § 1.08[B], at 1-66.27. But

the fixation requirement seems to have persisted through this expansion. Thus, although in the

modern era the term “Writings” allows Congress to extend copyright protection to a great many

things, those things have always involved some fixed, tangible and durable form. See Goldstein,

412 U.S. at 561 (“[W]ritings . . . may be interpreted to include any physical rendering of the fruits

of creative intellectual or aesthetic labor.”); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53,

58 (1887) (defining “Writings” as “all forms of writing, printing, engraving, etching, etc., by which

the ideas of the mind of the author are given visible expression”).

        Moghadam argues that a live performance, by definition, has not been reduced to a tangible

form or fixed as of the time of the performance. See Nimmer, The End of Copyright, supra, at 1409

(“[N]o respectable interpretation of the word ‘writings’ embraces an untaped performance of

someone singing at Carnegie Hall.”); Susan M. Deas, Jazzing up the Copyright Act? Resolving the

Uncertainties of the United States Anti-Bootlegging Law, 20 Hastings Comm. & Ent. L.J. 567, 570



        8
          Rejecting the notion that the Constitution “embalms inflexibly the habits of 1789,”
Judge Learned Hand wrote that the Copyright Clause’s “grants of power to Congress comprise
not only what was then known, but what the ingenuity of men should devise thereafter. Of
course, the new subject matter must have some relation to the grant, but we interpret by the
general practice of civilized people in similar fields, for it is not a strait-jacket but a charter for a
living prople.” Reiss v. National Quotation Bureau, Inc., 276 F. 717, 719 (S.D.N.Y. 1921).

                                                    8
(1998) (“The most obvious constitutional departure found in the [anti-bootlegging law] is how [it]

extends protection to unfixed material under the authority of a congressional enactment.”).

Moghadam argues that, but for the bootlegger’s decision to record, a live performance is fleeting

and evanescent.

       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 expanded so as to encompass live performances that are merely capable of being

reduced to tangible form, but have not been.9 For purposes of this case, we assume arguendo,

without deciding, that the above described problems with the fixation requirement would preclude

the use of the Copyright Clause as a source of Congressional power for the anti-bootlegging statute.



           III. WHETHER THE ANTI-BOOTLEGGING STATUTE CAN BE
       SUSTAINED UNDER THE COMMERCE CLAUSE OF THE CONSTITUTION

       The government contends, however, that the anti-bootlegging statute is permissible

legislation under Congress’s Commerce Clause power.10 Congress has the legislative authority “[t]o


       9
          We note that the anti-bootlegging statute may be faced with another constitutional
problem under the Copyright Clause. The Clause allows Congress to extend protection to
authors only for “Limited Times.” The protection afforded to live performances by § 2319A,
however, contains no express time limitation and would arguably persist indefinitely. However,
Moghadam has not preserved this argument, see infra, and we decline to address the argument in
light of our disposition of this case.
       10
           Congress’s failure to cite the Commerce Clause as grounds for § 2319A does not
eliminate the possibility that the Commerce Clause can sustain this legislation. “[T]he
constitutionality of action taken by Congress does not depend on recitals of the power which it
undertakes to exercise,” Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948), and “[i]n
exercising the power of judicial review,” we look only at “the actual powers of the national
government,” Timmer v. Michigan Dept. of Commerce, 104 F.3d 833, 839 (6th Cir. 1997)
(emphasis added).

                                                 9
regulate Commerce with foreign Nations, and among the several States.” U.S. Const. art. I, § 8, cl.

3. The Commerce Clause empowers Congress to legislate regarding three things: (i) the use of

channels of interstate commerce; (ii) instrumentalities and persons or things in interstate commerce;

and (iii) intrastate activities that substantially affect interstate commerce. United States v. Lopez,

115 S. Ct. 1624, 1629-30 (1995). Our analysis here focuses on the third category of appropriate

legislation. The applicable test is “whether a rational basis existed for concluding that a regulated

activity sufficiently affected interstate commerce.” Id. at 1629. To survive Commerce Clause

scrutiny, § 2319A “ ‘must bear more than a generic relationship several steps removed from

interstate commerce, and it must be a relationship that is apparent, not creatively inferred.’ ” United

States v. Wright, 117 F.3d 1265, 1270 (11th Cir. 1997) (quoting United States v. Kenney, 91 F.3d

884, 888 (7th Cir. 1996)), vacated in part on other grounds, 133 F.3d 1412 (11th Cir.), cert. denied,

119 S. Ct. 217 (1998).

       Because Congress thought it was acting under the Copyright Clause, predictably there are

no legislative findings in the record regarding the effect of bootlegging of live musical performances

on interstate or foreign commerce. Such findings are normally helpful to a court in finding an

interstate commerce nexus. See Cheffer v. Reno, 55 F.3d 1517, 1520 (11th Cir. 1995) (upholding

statute regarding freedom of access to abortion clinics under the Commerce Clause and relying on

a plethora of specific legislative findings in the record regarding the effect of violence and physical

obstruction on commerce in reproductive health services); see also United States v. Viscome, 144

F.3d 1365, 1371 (11th Cir.) (holding that “explicit findings that the proscribed activity in issue

substantially affected interstate commerce” are accorded “substantial deference”), cert. denied, 119




                                                  10
S. Ct. 362 (1998). However, the lack of such findings does not rule out the Commerce Clause as

a possible source of legislative authority applicable to the statute under challenge. Wright, 117 F.3d

at 1269. In Lopez, the Court said that although “congressional findings would enable us to evaluate

the legislative judgment that the activity in question substantially affected interstate commerce, even

though no such substantial effect was visible to the naked eye,” Lopez, 115 S. Ct. at 1632,

“Congress normally is not required to make [such] formal findings,” id. at 1631.

        Section 2319A also contains no jurisdictional element as is commonly found in criminal

statutes passed under authority of the Commerce Clause. That is, there is no requirement that, for

example, the bootleg copies or phonorecords have traveled in interstate or foreign commerce. Just

as legislative findings can help fortify a statute against Commerce Clause scrutiny, a jurisdictional

element is helpful because it ensures that each individual case will necessarily satisfy the required

interstate commerce nexus. Lopez, 514 U.S. at 1631 (noting that express jurisdictional elements

“limit [a statute’s] reach to a discrete set of [offenses] that additionally have an explicit connection

with or effect on interstate commerce”). However, the absence of such a jurisdictional element

connecting the offense to interstate or foreign commerce does not necessarily mean the Commerce

Clause cannot serve as authority. Wright, 117 F.3d at 1269; see also Viscome, 144 F.3d at 1371 &

n.12 (noting that even though Congress had recently amended statute criminalizing possession of

machineguns to include jurisdictional element, that did not necessarily mean previous version of

statute without jurisdictional element exceeded Commerce Clause authority); United States v. Olin

Corp., 107 F.3d 1506, 1510 (11th Cir. 1997) (“[A]lthough Congress did not include in CERCLA

either legislative findings or a jurisdictional element, the statute remains valid as applied in this case

because it regulates a class of activities that substantially affects interstate commerce.”). The


                                                   11
absence of such a jurisdictional element simply means that “courts must determine independently

whether the statute regulates ‘activities that arise out of or are connected with a commercial

transaction, which viewed in the aggregate, substantially affect[] interstate commerce.’ ” Olin

Corp., 107 F.3d at 1509 (quoting Lopez, 115 S. Ct. at 1631).

       Section 2319A clearly prohibits conduct that has a substantial effect on both commerce

between the several states and commerce with foreign nations. The link between bootleg compact

discs and interstate commerce and commerce with foreign nations is self-evident. For example, one

of the elements of the offense is that the activity must have been done “for purposes of commercial

advantage or private financial gain.” 18 U.S.C. § 2319A(a). If bootlegging is done for financial

gain, it necessarily is intertwined with commerce. Bootleggers depress the legitimate markets

because demand is satisfied through unauthorized channels. Cf. Wickard v. Filburn, 317 U.S. 111,

127-28 (1942) (finding an interstate commerce nexus sufficient to support federally mandated wheat

growing limits in the fact that farmers who grew wheat for home consumption would not buy wheat

in the normal market, thereby depressing commerce). Generally speaking, performing artists who

attract bootleggers are those who are sufficiently popular that their appeal crosses state or national

lines. The very reason Congress prohibited this conduct is because of the deleterious economic

effect on the recording industry.11 The specific context in which § 2319A was enacted involved a


       11
         The government’s brief in the instant case traced the impact that bootlegging of live
performances has on commerce:

       The trafficking in bootleg sound recordings results in unjust enrichment of
       persons who unfairly appropriate the intellectual property and potential profits of
       sound recording companies and artists. The regulated activity thus substantially
       affects the profitability and viability of the aggregate sound recording industry.
       In other words, trafficking in bootleg sound recordings substantially affects and
       threatens the continuous interstate commercial activity generated by the artists

                                                 12
treaty with foreign nations, called for by the World Trade Organization, whose purpose was to

ensure uniform recognition and treatment of intellectual property in international commerce. The

context reveals that the focus of Congress was on interstate and international commerce.

       Moreover, the type of conduct that Congress intended to regulate by passing the anti-

bootlegging statute is by its very nature economic activity, which distinguishes the statute from the

Gun-Free School Zones Act struck down in Lopez, which in criminalizing the possession of

handguns within 1000 feet of a school, “ha[d] nothing to do with ‘commerce’ or any sort of

economic enterprise, however broadly one might define those terms.” Lopez, 115 U.S. at 1630-31.

See also Nimmer, The End of Copyright, supra, at 1410 n.155 (“Although [Lopez] demonstrates that

Congress’s power under the Commerce Clause is not infinite, it does not remotely threaten the

viability of this trade law, given how close to the core of economic activity the Uruguay Round

Agreements lie.”). We hold that the anti-bootlegging statute has a sufficient connection to interstate

and foreign commerce to meet the Lopez test.

       The 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. As noted above, we assume arguendo that the Copyright Clause could not sustain

this legislation because live performances, being unfixed, are not encompassed by the term

“Writings” which includes a fixation requirement. The government argues that the anti-bootlegging

conviction in this case can be sustained under the Commerce Clause. We turn now to this issue.



       and sound recording companies, which incur significant risks in the nationwide
       marketing of the fixed sounds of live musical performances.

Government’s Initial Brief at 15.


                                                 13
        In general, the various grants of legislative authority contained in the Constitution stand

alone and must be independently analyzed. In other words, 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. Perhaps the most prominent example of this principle is Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241 (1964). There, the Supreme Court considered the

constitutionality of the public accommodation provisions of the Civil Rights Act of 1964. The

earlier Civil Rights Cases, 109 U.S. 3 (1883), had declared unconstitutional similar provisions of

the Civil Rights Act of 1875 because they regulated private conduct beyond the scope of the

legislative authority granted by § 5 of the Fourteenth Amendment. Yet, the Heart of Atlanta Motel

Court held, the Civil Rights Act of 1964 was predicated on the Commerce Clause and possessed

sufficient connection to interstate commerce. See Heart of Atlanta Motel, 379 U.S. at 250. The

Court’s reasoning illustrates that, as a general matter, the fact that legislation reaches beyond the

limits of one grant of legislative power has no bearing on whether it can be sustained under another.

Id. (concluding that Congress possessed ample power pursuant to the Commerce Clause, and “we

have therefore not considered the other grounds relied upon. This is not to say that the remaining

authority upon which it acted was not adequate, a question upon which we do not pass, but merely

that since the commerce power is sufficient for our decision here we have considered it alone”); see

also South Dakota v. Dole, 483 U.S. 203, 207 (1987) (holding that pursuant to the Spending Clause,

U.S. Const. art. I, § 8, cl. 1, Congress may condition its appropriation of money to the states on their

agreement to impose restrictions that would be beyond Congress’s constitutional legislative

authority to enact directly).




                                                  14
       This general approach has been applied in a context involving the Copyright Clause and the

Commerce Clause as alternative sources of Congressional power. The Trade-Mark Cases, 100 U.S.

82 (1879), involved an 1876 Congressional enactment of a primitive sort of trademark protection

(“1876 Act”), long before the modern-day Lanham Act. Act of Aug. 14, 1876, 19 Stat. 141. This

statute conferred protection on, and prohibited the counterfeiting of, various types of trademarks.

The defendants were criminally prosecuted under the 1876 Act for trying to pass off imitation

beverage products as brand-name by imitating famous trademarks of well-known beverage makers.

The defendants challenged the constitutionality of the 1876 Act, arguing that Congress did not have

legislative authority to enact it. As in the instant case, the government responded by proffering the

Copyright Clause and Commerce Clause as alternative possible bases of legislative authority.

       Apparently, just as was the case with the anti-bootlegging statute, Congress labored under

the impression that it was acting pursuant to its Copyright Clause power. The Trade-Mark Cases,

100 U.S. at 93 (“[U]ntil a critical examination of the subject in the courts became necessary, it was

mainly if not wholly to [the Copyright C]lause that the advocates of the law looked for its support.”).

Nevertheless, the Supreme Court held that the Copyright Clause could not sustain the 1876 Act

because “[t]he ordinary trade-mark has no necessary relation to invention or discovery,” which were

the hallmarks of protectable subject matter under the Copyright Clause. The Trade-Mark Cases, 100

U.S. at 94. Trademarks are inherently commercial; the concept behind the 1876 Act (and modern

trademark law) was not to encourage intellectual and artistic development, but rather to protect

businesses from predatory behavior in the marketplace. See id. (“[A trademark] requires no fancy

or imagination, no genius, no laborious thought. It is simply founded on priority of appropriation.”).

These characteristics made trademarks substantively different from the material the Congress was


                                                  15
constitutionally able to protect pursuant to the Copyright Clause. A trademark could be registered

under the 1876 Act even without any showing of originality. “While such legislation may be

judicious aid . . . and may be within the competency of legislatures whose general powers embrace

that class of subjects,” the Court held, “we are unable to see any such power in the constitutional

provision concerning authors and inventors, and their writings and discoveries.” Id.

       The Court next considered whether Congress could enact the 1876 Act under the Commerce

Clause. The Court summarized the government’s argument at the outset as that “the trade-mark is

. . . a useful and valuable aid or instrument of commerce, and its regulation by virtue of the

[Commerce C]lause belongs to Congress.” Id. at 95. The Court appeared receptive to this argument.

However, it must be remembered that the Trade-Mark Cases predated the New Deal-era expansion

of the Commerce Clause. In the nineteenth century, “there still remain[ed] a very large amount of

commerce, perhaps the largest, which, being trade or traffic between citizens of the same State,

[was] beyond the control of Congress.” Id. at 96. Unfortunately (but understandably, since

Congress had labored under the impression that it was authorized to enact the 1876 Act under its

Copyright Clause power), there was no jurisdictional-type element in the 1876 Act to ensure that

trademark protection would extend only insofar as related to interstate commerce. See id. at 97

(“Here is no requirement that [a person receiving trademark protection] shall be engaged in the kind

of commerce which Congress is authorized to regulate.”). Consequently, the Court ultimately struck

down the 1876 Act as not sustainable under either the Copyright Clause or the Commerce Clause.

       Although the 1876 Act did not survive due to the restrictive view of the Commerce Clause

prevailing at that time, the Supreme Court’s analysis in the Trade-Mark Cases stands for the

proposition that legislation which would not be permitted under the Copyright Clause could


                                                16
nonetheless be permitted under the Commerce Clause, provided that the independent requirements

of the latter are met. Of course, we have already held that the anti-bootlegging statute satisfies the

“substantial effects” test of post-Lopez Commerce Clause jurisprudence. The analysis in the Trade-

Mark Cases tends to refute the argument that Congress is automatically forbidden from extending

protection under some other grant of legislative authority to works that may not be constitutionally

protectable under the Copyright Clause. Indeed, modern trademark law is built entirely on the

Commerce Clause, see, e.g., Jellibeans, Inc. v. Skating Clubs of Ga., Inc., 716 F.2d 833, 838 (11th

Cir. 1983), and we have found no case which suggests that trademark law’s conferral of protection

on unoriginal works somehow runs afoul of the Copyright Clause. See Michael B. Gerdes,

Comment, Getting Beyond Constitutionally Mandated Originality as a Prerequisite for Federal

Copyright Protection, 24 Ariz. St. L.J. 1461, 1471 (1992) (“The constitutionality of current federal

trademark legislation . . . supports the conclusion that the Copyright Clause does not limit

Congress’s Commerce Clause power to grant copyright-like protection.”).

       A similar analysis was adopted by the Second Circuit in Authors League of America, Inc.

v. Oman, 790 F.2d 220 (2d Cir. 1986). There, the issue was the constitutionality of 17 U.S.C. § 601,

a now-expired provision designed to protect the domestic book publishing and printing industries

by restricting the importation of copyrighted, nondramatic literary works which were published

abroad. The plaintiffs argued, inter alia, that this statute went beyond Congress’s legislative power

under the Copyright Clause because of the introductory language in the Clause which restricts such

legislation to that which helps to “promote the progress of . . . useful arts.” Section 601, the

plaintiffs argued, was essentially protectionist economic legislation that did not serve that purpose.

The Second Circuit responded to this argument as follows:


                                                 17
       What plaintiffs’ argument fails to acknowledge, however, is that the copyright clause
       is not the only constitutional source of congressional power that could justify [§
       601]. In our view, denial of copyright protection to certain foreign-manufactured
       works is clearly justified as an exercise of the legislature’s power to regulate
       commerce with foreign nations.

790 F.2d at 224. The Authors League analysis suggests that the Commerce Clause may be used to

accomplish that which the Copyright Clause may not allow.

       On the other hand, it might be argued that some of the grants of legislative authority in

Article I, § 8 contain significant limitations that can be said to represent the Framers’ judgment that

Congress should be affirmatively prohibited from passing certain types of legislation, no matter

under which provision. The Supreme Court touched on such a situation in Railway Labor

Executives’ Ass’n v. Gibbons, 455 U.S. 457 (1982). Congress had enacted a statute that purported

to alter a pending bankruptcy case by requiring the debtor railroad company’s bankruptcy estate to

pay $75 million to the company’s former employees. This statute directly clashed with the

Bankruptcy Clause, U.S. Const. art. I, § 8, cl. 4, which provides that Congress is empowered to pass

“uniform” bankruptcy laws, because the law targeted a particular situation and was anything but

uniform. The Court quickly brushed off the possibility that the legislation could nevertheless be

sustained under the Commerce Clause (which contains no uniformity requirement), stating that “if

we were to hold that Congress had the power to enact nonuniform bankruptcy laws pursuant to the

Commerce Clause, we would eradicate from the Constitution a limitation on the power of Congress

to enact bankruptcy laws.” Id. at 468-69. In Railway Labor Executives, the statute that Congress

passed directly conflicted with the uniformity requirement of the Bankruptcy Clause. Cf. Paul J.

Heald, The Vices of Originality, 1991 Sup. Ct. Rev. 143, 168-75 (arguing that Congress would not

be able to circumvent the originality requirement inherent in the term “Writings” in the Copyright


                                                  18
Clause by passing a statute under the Commerce Clause which extended copyright-like protection

to unoriginal works).

       We note that there is some tension between the former line of cases (Heart of Atlanta, the

Trade-Mark Cases and Authors League) and the Railway Labor Executives case. The former cases

suggest that in some circumstances the Commerce Clause can be used by Congress to accomplish

something that the Copyright Clause might not allow. But the Railway Labor Executives case

suggests that in some circumstances the Commerce Clause cannot be used to eradicate a limitation

placed upon Congressional power in another grant of power. For purposes of the instant case, we

resolve this tension in the following manner. In resolving this tension and 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. First, as described above, we hold the anti-

bootlegging statute satisfies the “substantial effects” test of the post-Lopez Commerce Clause

jurisprudence. Second, following the former line of cases (Heart of Atlanta, the Trade-Mark Cases

and Authors League), we hold that in some circumstances the Commerce Clause indeed may be used

to accomplish that which may not have been permissible under the Copyright Clause. We hold that

the instant case is one such circumstance in which the Commerce Clause may be thus used. It is

at this point that we must resolve the tension with Railway Labor Executives.

       Resolving this tension, we take as a given that there are some circumstances, as illustrated

by Railway Labor Executives, in which the Commerce Clause cannot be used by Congress to

eradicate a limitation placed upon Congress in another grant of power.12 For the reasons that follow,


       12
                 We assume 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., the anti-bootlegging statute) were fundamentally inconsistent with the particular limitation

                                                 19
we hold that the instant case is not one such circumstance. We hold that the Copyright Clause does

not envision that Congress is positively forbidden from extending copyright-like protection under

other constitutional clauses, such as the Commerce Clause, to works of authorship that may not meet

the fixation requirement inherent in the term “Writings.” The grant itself is stated in positive terms,

and does not imply any negative pregnant that suggests that the term “Writings” operates as a ceiling

on Congress’ ability to legislate pursuant to other grants. Extending quasi-copyright protection to

unfixed live musical performances is in no way inconsistent with the Copyright Clause, even if that

Clause itself does not directly authorize such protection. Quite the contrary, extending such

protection actually complements and is in harmony with the existing scheme that Congress has set

up under the Copyright Clause.13 A live musical performance clearly satisfies the originality

requirement. Extending quasi-copyright protection also furthers the purpose of the Copyright Clause

to promote the progress of the useful arts by securing some exclusive rights to the creative author.

Finally, with respect to the fixation requirement, upon which this opinion focuses, although a live

musical performance may not have been fixed, or reduced to tangible form, as of the time the

bootleg copy was made, it certainly was subject to having been thus fixed. Our conclusion that

extending copyright-like protection in the instant case is not fundamentally inconsistent with the

fixation requirement of the Copyright Clause is bolstered by an example from the prior copyright

law. If a live performance is broadcast, e.g., by radio or television, and simultaneously recorded by

the performer, any unauthorized recording by a person receiving the broadcast constitutes copyright




in the Copyright Clause (e.g., the fixation requirement).
       13
              In light of our disposition of this case, we need not address the Necessary and
Proper Clause, U.S. Const. art. I, § 8, cl. 18, as a possible source of Congressional power.

                                                  20
infringement of the sound recording or motion picture, notwithstanding that the infringer actually

copied the live performance directly, and not the fixation thereof. This result is based upon the last

sentence of the definition of “fixed” in 17 U.S.C. § 101. That last sentence provides: “A work

consisting of sounds, images, or both, that are being transmitted, is ‘fixed’ for purposes of this title

if a fixation of the work is being made simultaneously with its transmission.” This definition creates

a legal fiction that the simultaneous fixation occurs before the transmission and the unauthorized

recording. See H.R. Rep. 94-1476, at 52-53, reprinted in 1976 U.S.C.C.A.N. 5659, 5665-66; 1

Nimmer on Copyright, supra, § 1.08[C][2], at 1-66.32 (“It is as if one who was dictating live into

a tape recorder were overheard and copied at the moment of dictation. At that moment, the material

has become a ‘writing,’ even if copied simultaneously, rather than a moment later.”). While we are

aware that the constitutionality of this aspect of the statute has never been tested, the ease with

which it has been incorporated into the prior copyright law suggests that fixation, as a constitutional

concept, is something less than a rigid, inflexible barrier to Congressional power. Indeed, if a

performer under the prior law could effectively protect a live musical performance, circumventing

the fixation requirement, simply by the device of simultaneous recordation, the anti-bootlegging law

seems to us like more of an incremental change than a constitutional breakthrough. Common sense

does not indicate that extending copyright-like protection to a live performance is fundamentally

inconsistent with the Copyright Clause.

       For the foregoing reasons, we conclude that extending copyright-like protection in the instant

case is not fundamentally inconsistent with the fixation requirement of the Copyright Clause. By




                                                  21
contrast, the nonuniform bankruptcy statute at issue in Railway Labor Executives was irreconcilably

inconsistent with the uniformity requirement of the Bankruptcy Clause of the Constitution.14

        We note 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. See Pennock v. Dialogue, 27 U.S. 1, 16-17, 7 L.

Ed. 327, 333 (1827). On its face, the protection created by the anti-bootlegging statute is apparently

perpetual and contains no express time limit; therefore phonorecords of live musical performances

would presumably never fall into the public domain. See Nimmer, The End of Copyright, supra, at

1411 (“[T]he Caruso example of protecting a work from a century ago and for centuries into the

future . . . is the antithesis of ‘limited times.’ ”); see also Goldstein v. California, 412 U.S. 546, 560-

61 (1973) (suggesting that a copyright of unlimited duration would have a tendency to inhibit the

progress of the arts). However, because Moghadam has not challenged the constitutionality of §

2319A on this basis,15 we decline to raise the issue sua sponte. Thus, we do not decide in this case

whether extending copyright-like protection under the anti-bootlegging statute might be


        14
                Our holding is limited to the fixation requirement, and should not be taken as
authority that the other various limitations in the Copyright Clause can be avoided by reference
to the Commerce Clause. Compare Nimmer, The End of Copyright, supra, at 1413 (decrying
that Congress may “jettison Feist” by analogy to the URAA because “[w]hy is a telephone book
any further afield than a performance at Carnegie Hall?”), with Gerdes, supra, at 1461
(proposing that Congress legislatively overrule Feist and extend copyright protection to
unoriginal works by relying on the Commerce Clause).
        15
               Moghadam did not make this argument in the district court or in his brief on
appeal. He fleetingly mentions the “Limited Times” requirement for the first time in his reply
brief on appeal, and even then does not argue that extending copyright-like protection in this
case pursuant to the Commerce Clause would be prohibited by an inconsistency with the
“Limited Times” requirement of the Copyright Clause. The government has not had any
opportunity to present a defense to such an argument, and it would be unfair to entertain the
argument at this late date.

                                                    22
fundamentally inconsistent with the “Limited Times” requirement of the Copyright Clause, and we

do not decide in this case whether the Commerce Clause can provide the source of Congressional

power to sustain the application of the anti-bootlegging statute in some other case in which such an

argument is preserved. We reserve those issues for another day.

       Summarizing our narrow holding in this case, we assume arguendo, without deciding, that

the anti-bootlegging statute cannot satisfy the fixation requirement of the Copyright Clause; we hold

that the statute satisfies the “substantial effects” test of the post-Lopez Commerce Clause

jurisprudence; we hold that the Commerce Clause can provide the source of Congressional power

in this case because the extension of copyright-like protection here is not fundamentally inconsistent

with the fixation requirement of the Copyright Clause;16 and thus under the circumstances of this

case,17 we reject Moghadam’s constitutional challenge to his conviction.



                                        IV. CONCLUSION

       For the foregoing reasons,18 the judgment of the district court is




       16
               Because we find no such inconsistency, we need not decide the consequences if
there were inconsistency. See note 12, supra.
       17
              As noted above, Moghadam has waived any constitutional challenge based on the
“Limited Times” requirement of the Copyright Clause, and thus our holding in this case is
further narrowed by the fact that we do not address potential arguments based on the “Limited
Times” requirement.
       18
               We reject Moghadam’s other arguments on appeal without need for discussion.

                                                 23
AFFIRMED.




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