Expansive copyright protection for all time? Avoiding Article 1 horizontal limitations through the treaty power

• Published in: Columbia law review 2006-06, Vol.106 (5), p.1079-1118
• Main Author: Nguyen, Caroline T
• Format: Article
• Language: English
• Subjects: Constitutional law; Copyright; Legal aspects; Legislation; Property, Intellectual; United States
• ISSN: 0010-1958

At the core of this Note is the following question: Can Congress use an alternate source of power to pass copyright legislation that exceeds the enumerated power of the Copyright Clause? In United States v. Moghadam, the Eleventh Circuit used the Commerce Clause to uphold an anti bootlegging statute that arguably exceeded the scope of the Copyright Clause. Moghadam sparked scholarship discussing the viability of the Commerce Clause as a basis for expansive copyright legislation. This Note departs from that scholarship. It presents an alternate, more viable, source of authority for expansive copyright legislation: the Treaty Power. This Note argues that the Treaty Power is a robust alternate source of power for federal copyright protection because it is expansive and - unlike the Commerce Clause - is not restrained by limitations in Article I's enumerated powers. In making its argument, this Note draws the distinction between (1) exceeding the scope of an enumerated power and (2) violating an affirmative prohibition. Although courts have held that one Article I power (e.g., Commerce Clause) may not be used to accomplish what another Article I power restricts (e.g., Copyright Clause), the same analysis would not apply to the Treaty Power. Case law suggests that the Treaty Power is not constrained by limitations in the enumerated powers; instead, the Treaty Power may simply not be used to violate affirmative prohibitions. This Note uses the anti bootlegging provisions as a case study, but conclusions drawn from the analysis remain instructive of similar provisions.