The full case caption appears at the
end of this opinion. ANDERSON, Chief Judge: 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.
[FOOTNOTE 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.
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;
[FOOTNOTE 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,”
[FOOTNOTE 3] could be prosecuted or face civil liability for copyright infringement.
See 17 U.S.C. � 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,
[FOOTNOTE 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.
[FOOTNOTE 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, 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–
