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Abstract

Under the reasoning in Unied States v. Martingon, declaring the federal bootlegging statute unconstitutional, databases, as “non-writings,” could not be protected under Congress’s copyright power or commerce power. In other words, Congress’s power under Article I, Section 8, Clause 8 serves to limit its ability to act under Article I, Section 8, Clause 3. Marignon’s rationale raises questions about a variety of prospective and existing legislation that protects “non-writings” for an unlimited time, such as the trademark dilution statute. This article examines the merits of this contention, arguing that the manner in which the Supreme Court has handled overlapping Article I powers in the past, the history of the Copyright Clause, and the structure of the Constitution suggests that the decision in Martignon is not only wrong, but breathtakingly so. In the long term, resolution of the issues presented in this decision will set the parameters of Congress’s power to regulate not only bootlegging, but also databases and other “unoriginal” intangible property.

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