Vol 7 No 1 - Roger Williams University School of Law

Clause.135 The court reviewed the two opposing precedents inlight of the Commerce Clause in the face of other clauses andconcluded that it was not against the spirit of the Constitution toallow the statutes to be upheld under the Commerce Clause. Theyreasoned that this type of legislation supplemented copyrightprotection and should be allowed.136The court started out by confirming that section 2319Aconcerned conduct that had a substantial effect on commercebetween the several states and commerce with foreign nations,namely the sale of bootleg compact discs. The court explained thatthe more interesting question was whether Congress could use theCommerce Clause to avoid the limitations that might prevent itfrom passing the same legislation under the Copyright Clause.They explained:that in general, the various grants of legislative authoritycontained in the Constitution stand alone and must beindependently analyzed. In other words, each of thepowers of Congress is alternative to all of the otherpowers, and what cannot be done under one of them mayvery well be doable under another. 137The court noted that this general approach had been appliedpreviously in a context involving the Copyright Clause and theCommerce Clause, namely, the Trade-Mark Cases.138 In thosecases, the constitutional validity of an early trademark lawenacted by Congress in 1876 was at issue. The Supreme Courtheld that the Copyright Clause could not sustain the 1876 Actbecause “[t]he ordinary trade-mark has no necessary relation toinvention or discovery,” which were the hallmarks of protectablesubject matter under the Copyright Clause.139 The Courtexplained that trademarks were inherently commercial; theconcept behind the 1876 Act (and modern trademark law) was notto encourage intellectual and artistic development, but rather toprotect businesses from predatory behaviour in themarketplace.140 This concept was said to be outside the ambit of135. Moghadam, 175 F.3d at 1269.136. Id.137. Id. at 1277.138. See United States v. Steffens, 100 U.S. 82 (1879).139. Id. at 94.140. See id. at 94-99.