Vol 7 No 1 - Roger Williams University School of Law

econciled the authorities, saying:We note that there is some tension between the formerline of cases (Heart of Atlanta, the Trade-Mark Cases andAuthors League) and the Railway Labor Executives case.The former cases suggest that in some circumstances theCommerce Clause can be used by Congress to accomplishsomething that the Copyright Clause might not allow.But the Railway Labor Executives case suggests that insome circumstances the Commerce Clause cannot be usedto eradicate a limitation placed upon Congressional powerin another grant of power. For purposes of the instantcase, we resolve this tension in the following manner. Inresolving this tension and in reaching our conclusion inthis case, we undertake a circumscribed analysis,deciding only what is necessary to decide this case, andwe reach a narrow conclusion. First, as described above,we hold the anti-bootlegging statute satisfies the“substantial effects” test of the post-Lopez CommerceClause jurisprudence. Second, following the former lineof cases (Heart of Atlanta, the Trade-Mark Cases andAuthors League), we hold that in some circumstances theCommerce Clause indeed may be used to accomplish thatwhich may not have been permissible under theCopyright Clause. We hold that the instant case is onesuch circumstance in which the Commerce Clause may bethus used. It is at this point that we must resolve thetension with Railway Labor Executives.Resolving this tension, we take as a given that there aresome circumstances, as illustrated by Railway LaborExecutives, in which the Commerce Clause cannot beused by Congress to eradicate a limitation placed uponCongress in another grant of power. For the reasons thatfollow, we hold that the instant case is not one suchcircumstance. We hold that the Copyright Clause doesnot envision that Congress is positively forbidden fromextending copyright-like protection under otherconstitutional clauses, such as the Commerce Clause, toworks of authorship that may not meet the fixationrequirement inherent in the term “Writings.” The grantitself is stated in positive terms, and does not imply any