Re: abolishing preemption?

On Sep 06, 1999, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> The New York Times reported today that a bill is pending in both
> houses of Congress that would "largely abolish the legal doctrine
> of implied preemption."
>
> While there is nothing in this bill specific to copyright or patent
> law, it seems to me the bill would have serious and potentially
> devastating consequences for IP law, which has always relied on
> "implied" preemption based on a state law "standing as an obstacle
> to the accomplishment of the full purposes of Congeress." This
> preemption works both for and against copyright owners. For example,
> courts have preempted state efforts to constrain fair use in copyright
> law, and state efforts to pass patent-like laws that don't meet the
> minimum requirements of patent laws. At the same time, courts have
> preempted laws that interfere with the rights of copyright owners,
> such as New York's law designed to impede ASCAP from suing bars and
> restaurants that played unlicensed music.
>
> My sense is that Congress hasn't heard from IP lawyers, or given much
> thought to how this across-the-board bill would affect IP law. But
> they should. Maybe they should hear from us.

Senator Thompson of Tennesse introduced such a bill before recess. I imagine most national businesses would have aserious problem with it. JB

Jonathan Band
<jband[_at_]mofo.com> Received on Tue Sep 07 1999 - 13:26:55 GMT