This Article examines the constitutional implications of legislation to bring pre-1972 sound recordings under federal copyright protection (referred to hereafter as “federalizing legislation”). In particular, we consider whether such an amendment could violate due process or constitute a taking pursuant to the Fifth Amendment of the Constitution. Using the Copyright Office’s approach as a springboard, we consider the issues that would likely arise under any federalizing legislation. These issues, however, have implications far beyond the context of federalizing legislation for pre-1972 sound recordings. Given the proliferation of assets subject to intellectual property laws and the increasing role those assets play in the U.S. economy, the questions addressed in this Article may bear on Congress’ overall ability to amend those laws.
American museums have long recognized that their collections sometimes include two categories of artwork whose prior owners parted with the pieces unwillingly: Nazi-looted art and illicitly exported archaeological objects. The relevant industry associations—the American Alliance of Museums and the Association of Art Museum Directors—have promulgated self-regulatory regimes that purport to ensure that museums return any objects to their rightful owners when they do not hold good title. However, the success of these regimes has varied widely based on whether the artwork is an archaeological antiquity or a Nazi-looted piece. This Article identifies the ways in which the regimes and the contexts in which they were created diverge. It argues that museums dealing with looted antiquities require outside scrutiny and internal convergence of opinion, elements present in the effective self-regulatory regime surrounding Nazi-looted art. These factors would assure the compliance that is lacking in antiquities regimes, which have little outside scrutiny and are fraught with extreme differences in opinion within the museum community as to how to solve the problem, or whether there is a problem at all.
This Note argues that the Second Circuit’s interpretation of the Transmit Clause eviscerates the meaning of “public” within the digital realm and has created a blueprint for business models to completely circumvent copyright liability. Part I provides the background of the public performance right, focusing on the role that technology has played in the addition of the Transmit Clause and on relevant judicial interpretation. Part II argues that the Second Circuit’s interpretation of the Transmit Clause was improper; it tests the court’s blueprint by re-engineering past business models to show how they could have evaded liability. Part III proposes that, in order to prevent the breakdown of traditional copyright protection in the digital realm, courts should prioritize function over form and adopt a delivery-agnostic approach to evaluating copyright infringement.