Re: "hot news" myth

Bob Cumbow <cumbr[_at_]perkinscoie.com> writes:
>
> But preemption refers to claims "equivalent to copyright." Claims
> arising from contract, statute, or common law can generally escape
> preemption if they are not "equivalent to copyright." In the present
> case, a claim for misappropriation of facts under a "hot news" theory
> is not "equivalent to copyright" because there is no claim for copyright
> infringement with respect to facts. Thus a misappropriation claim of
> this kind should escape preemption. I think.
>

Preemption doctrine is a mess. I will add two thoughts to Bob's.

First, the mere fact that the copyright suit is a loser does not mean that a claim to the same set of information is "not equivalent to copyright." This is easier to see with patent law: if I invent something that is patentable subject matter, but is obvious, a state cannot grant patent-like protection to it on the grounds that it is "outside the scope of patent." It is not. Rather, it is within the *scope* of patent law, but unprotectable because it doesn't meet the *requirements* of that law. In the copyright context, a couple of courts (notably the Seventh Circuit, in Baltimore Orioles, I think) have held that the originality requirement is like obviousness in this respect -- unoriginal works of authorship are within the scope of copyright; they just don't meet the minimum requirements for protection. [Curiously, though, courts do *not* say the same thing about fixation, adding another layer of confusion to the doctrine].

Second, "equivalence to copyright" is the test for preemption under 17 U.S.C. sec. 301. Even if that hurdle is passed, there is still a possibility of Supremacy Clause preemption based on a conflict between federal copyright law (express or implied) and the state statute.

Completely clear now, right? :)

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 Mon Jun 02 1997 - 16:25:30 GMT