Re: preemption

On 11/8/99, Harold Federow <haroldf[_at_]bsquare.com> wrote:
>
> On Fri, Nov 05, 1999, Vance R. Koven <vrkoven[_at_]world.std.com> wrote:
> >
> > As to Prof. Jamar's second point, I think he's quite right: copying
> > expression is exactly what the Copyright Act is about. As to the
> > first, though, passing off someone else's work as one's own seems
> > like classic unfair competition, which is protected by statute and
> > common law in most places. There may even be implications in those
> > states that have "misappropriation of identity" laws.
> >
> > The elements of proof, however, would not be identical between unfair
> > competition and copyright.
>
> I don't have citations handy, but there are cases in which unfair
> competition claims were held to be preempted to the extent they alleged
> causes of action that were unfair competition by unauthorized copying.

Had a case just like that, involving software. I was called in by a business attorney for the intellectual property aspects of the case; after reading all the stuff I told them that the case was entirely preempted by the Copyright Law, gave all the case cites (which I, too, don't now have in hand), and went my way. I was given to understand later that a motion to dismiss had been filed in state court and granted; the complainant went away.

Bill Lovell
<wsl[_at_]cerebalaw.com> Received on Tue Nov 09 1999 - 16:33:35 GMT