Re: preemption of state antitrust law

On Wed, 29 Jul 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.

As I understand it, Microsoft's theory is that the remedy under the states' antitrust laws goes to how the works are put together. The states' argument is that keeping the browser and OS together are illegal tying under the states' antitrust laws. The Microsoft argument is that saying Microsoft cannot reproduce and distribute their work in this form amounts to a restriction on reproduction and distribution, two section 106 rights, and is preempted by section 301.

(I should note that I haven't read the pleadings -- this is just what I gathered from the quotes and news reports.)  

> 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.

It sounds specious to me. It would be like relying on a preemptive federal regulation on lead content in public facilities to say that a state could not outlaw bringing a loaded gun into a theater.

--
Terry Carroll       |    
Santa Clara, CA     |    
carroll[_at_]tjc.com     |       
Modell delendus est |