Re: Preemption

From: Dan L Burk <BURKDANL[_at_]shu.edu>
Date: Sun, 03 Jan 1999 18:38:29 -0500

On 01/01/99, Steve Jamar <sjamar[_at_]law.howard.edu> wrote:
>
> As I understand it, Larry Weiss is trying to distinguish claims
> from defenses for Section 301 preemption purposes. One problem
> with this is that Section 301 speaks in terms of rights, not in
> terms of how they are being asserted. That is, the preemption
> happens whether the right is an affirmative claim or a defense
> to a copyright act claim.

I think Steve's reading here is correct. And, as I mentioned elsewhere, I don't see how the distinction matters for implied or constitutional preemption purposes, either -- if either a "claim" or a "defense" hampers Congress' intent, it has to go.

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Dan L. Burk
Seton Hall University
burkanl[_at_]shu.edu

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Received on Sun Jan 03 1999 - 23:45:18 GMT