Re: UCITA v. DMCA

On 10/22/99, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> But surely that can't be all there is. Take copyright. Section
> 301 preempts only state statutes that create rights equivalent to
> copyright. Suppose California were to say "we don't believe in
> copyright, and we hereby exempt California citizens from copyright
> liability." The statute isn't preempted under 301, but surely it is
> preempted under the Supremacy Clause because it directly conflicts
> with a federal command.
>
> Cipollone (505 U.S. 504, 517) does suggest that where there is partial
> express preemption, we should never imply preemption. But the Supreme
> Court backed far away from that interpretive cannon in 1995 in
> Freightliner v. Myrick, 514 U.S. 280.

Alright Mark, they backed off some, but I wouldn't call it "far away":

The Court recognizes that "the fact that an express definition of the preemptive reach of a statute "implies" -- i.e., supports a reasonable inference -- that Congress did not intend to preempt other matters does not mean that the express clause entirely forecloses any possibility of implied preemption.

So I'll concede some possibility of conjuring up an implied preemption that is not _entirely foreclosed_ by an express preemption. But you gotta concede that the express preemption "supports a reasonable inference" that there's no implied preemption.

The Court goes on to conclude that petitioners' preemption argument is ultimately futile ... because respondents' commonlaw actions do not conflict with federal law. The Court found that it was "not impossible for petitioners to comply with both federal and state law" and "we cannot say that the respondents' lawsuits frustrate "the accomplishment and execution of the full purposes and objectives of Congress."

You have a hypothetical (Cal law: no such thing as copyright) in which the state statute frustrates the objectives of the Copyright Act. You'd have a better one if Cal law required the unauthorized copying of a protected work. But I think my point, that field and implied preemption are moribund, is fairly illustrated by the stretch that your hypo poses.

Funny though that I've been citing Freightliner for a different rule: Congress' studied refusal to regulate does not imply an intention to preempt state regulation.

John Noble
<jnoble[_at_]dgsys.com> Received on Mon Oct 25 1999 - 18:05:16 GMT