Re: "hot news" myth

Bob Cumbow <cumbr[_at_]perkinscoie.com> writes:
>
> John Lederer <johnl[_at_]ibm.net> asked:
> >
> > How does that square with the preemption clause of the copyright law
> > assuming that the tort is based on a state right?
>
> To the extent that the misappropriation involves materials that are not
> protected by copyright (e.g., facts, or an unfixed live performance),
> the Copyright Law would not preempt the state law misappropriation action.
> Remember that in ProCD v. Zeidenberg, which involved violation of a
> shrinkwrap license protected a purely factual database, the Circuit Court
> reversed the District Court's finding of preemption by pointing out that
> parties frequently--by contract, license, or otherwise---provide for the
> protection of materials that are not covered by copyright law.
>

Even if one were to assume that ProCD was rightly decided (much on that elsewhere, and I won't repeat it here), it doesn't help the misappropriation claim. The Seventh Circuit's decision was explicitly based on the idea that contracts are different from all other state laws because they affect only the parties to the contract. Misappropriation is a tort law that applies even absent privity. It may be defensible, but not on the same grounds as ProCD.

Query: If the Florida statute at issue in Bonito Boats v. Thunder Craft Boats had been a misappropriation statute, would the result have changed?

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

Published at last: Merges, Menell, Lemley & Jorde, Intellectual Property  in the New Technological Age (Aspen Law & Business 1997)

For information on the Intellectual Property program at UT, see http://www.utexas.edu/law/intelprop/ Received on Thu May 29 1997 - 15:58:55 GMT