Re: preemption

On 10/28/1999, Lynn Winebarger <owinebar[_at_]free-expression.org> wrote:
>
> On Tue, 26 Oct 1999, Steven D. Jamar <sjamar[_at_]law.howard.edu> wrote:
> >
> > In a conflict between state law and federal law, the state law would
> > clearly be preempted under the supremacy clause regardless of any
> > statutory preemption. There is always the problem of what is a
> > conflict. For example, a state copyright law may well not conflict
> > with federal law. But a state copyright law covering the same subject
> > matter as the federal law would be statutorily preempted.
>
> Could you give an (hypothetical) example of what you mean by the
> last 2 sentences?
>

Suppose California enacted a "mini-copyright" act, identical in all respects to the federal statute, but giving a cause of action in state court. It probably doesn't conflict with the federal law, and may even reinforce it. Still, it is preempted under 17 USC sec. 301 because it creates "a right equivalent to copyright."

Mark Lemley
<mlemley[_at_]mail.law.utexas.edu> Received on Fri Oct 29 1999 - 21:45:20 GMT