Re: NBA v. Motorola

On Tue., Feb. 25, 1997, Vance Koven <vrkoven[_at_]world.std.com> wrote:

>

The closest I can get to "beef" are the discussions I pointed to in Bonito Boats, which says that Congress can't enact a statute that takes existent knowledge from the public domain, or restricts free access to materials already available (489 U.S. at 146) -- and then invalidates a state law that did essentially that (id. at 159).

In the alternative, Bonito Boats (on the last couple of pages) suggests that Congress could act in a limited way in this area, but has declined the opportunities.

I could see a Supreme Court opinion in NBA v. Motorola going down the same lines. The difference, I grant you, is that here we have pretty clear Supreme Court precedent (Feist) saying Congress couldn't have acted to the effect of the challenged state law, whereas in Bonito Boats this is only suggested. Most of the time, Bonito Boats talks about "federal policy," which blurs the distinction between constitutional mandate and positive legislation under the constitutional authority. (Not quite "beef.") But it's hard for me to see the Supreme Court upholding the state common law here in the face of all the counter-considerations (themselves largely based on policy) put forth in Feist.

We could look at the preemption cases under the commerce clause, but the policies there are different. The States are free to burden intrastate commerce, but in doing so remain subject to other constitutional requirements, under the fifth amendment, the fourteenth amendment, etc. I would argue that the policies involved under the IP clause are fairly unique.

Ron Abramson
<abramson[_at_]HUGHESHUBBARD.COM> Received on Fri Feb 28 1997 - 01:58:57 GMT