Re: NBA v. Motorola

On Sat., Feb. 22, 1997, Vance Koven <vrkoven[_at_]world.std.com> wrote:
>
> As a constitutional matter I agree that when Congress elects to pre-empt
> a field of regulation in which it has been granted power it should be
> allowed to do so, since to do otherwise would negate the existence of a
>
> federal government. That still begs the question of whether, in the
> absence of a clear Congressional exercise of power, a state authority
> that has existed in tandem with the federal power for many years without
> much apparent controversy can be so lightly abrogated.

Feist was a constitutional decision. The "White Pages" material in Feist is is not subject matter that Congress might have, but decided not to, protect. The Founders didn't give Congress the power, under Art. I, Sec. 8, cl. 8, to protect unoriginal facts. Congress could not protect facts under this authority now, nor, barring an amendment of the Constitution (or a revision of its interpretation), in the future.

So, if this is an area in which Congress didn't act, and indeed, one in which Congress couldn't act (at least under the IP clause), then why can't the States act this area? Because, according to Bonito Boats, "[t]he [IP] clause itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concommitant advance in 'Progress of Science and useful Arts.' "

Bonito Boats reaffirmed the principle that Congress can't enact a statute that takes existent knowledge from the public domain, or restricts free access to materials already available. Bonito Boats hedged, however, on whether Congress COULD HAVE enacted a statute to the effect of the Florida statute there at issue, leaving one more basis than is available here to argue for preemption.

While the sports scores in NBA v. Motorola involved subject matter that is arguably more complex than a white pages listing, "copyright" protection for such sunbject matter would nevertheless have been constitutionally suspect. I would think that if Congress isn't empowered to provide such protection, then for the same reasons this power was withheld from Congress, the States can't do it either.

While Bonito Boats doesn't get us all the way to the answer, it's not a big jump from plug molding to the dissemination of sports scores in real time that was at issue in NBA v. Motorola. Combine this with the legislative history's narrow treatment of INS in preemptive legislation that came after the development of the contrary line state law authority, and you get a pretty good indication of why the Second Circuit came out where it did. Clearly, it would have been courting reversal to disregard INS, so instead the court narrowed it to oblivion.

This is definitely the "other shoe" left over from Feist. Maybe it's something the Supreme Court ought to address, but I think the Second Circuit did a good job.

Ron Abramson
<abramson[_at_]hugheshubbard.com> Received on Mon Feb 24 1997 - 20:14:02 GMT