On July 29, 1998, Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
>
> I just got off the phone with a reporter asking about copyright
> preemption of state antitrust laws. Apparently in its latest filing,
> Microsoft is claiming that the state AGs cannot assert state antitrust
> claims against Microsoft, because such claims would be preempted by
> federal copyright law.
>
> This sounds completely wrong to me, but I would be curious to hear if
> someone on the list can come up with a plausible argument supporting
> the argument.
Dan,
That sure sounds wrong to me. For there to be preemption, the causes of action must be basically the same. Therefore, for example, a state cause of action for "unjust enrichment" based upon the unauthorized use of copyrighted material should be preempted. So too should an action for "Misappropriation of copyrighted material." (Unless, of course, the material is a trade secret, or there is some obligation to not use the material).
Antitrust is not at all the same subject matter. If one attempts to monopolize, boycott, etc., it should not matter whether the material is copyrighted or not.
My bet is that Microsoft will lose this one.
Michael Landau
Georgia State University
<mlandau[_at_]gsu.edu>
Received on Thu Jul 30 1998 - 16:24:19 GMT
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