A Less-Formalistic Copyright Preemption

28 Pages Posted: 21 Sep 2017 Last revised: 15 Jun 2018

See all articles by Guy A. Rub

Guy A. Rub

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: September 19, 2017


Federal law plays a central role in the development, distribution, and consumption of information goods but it is not the only player on this field. A mixture of state law doctrines, some originating with the common law and some with statutory law, also affects the lifecycle of intangible property rights. This dual system can create conflicts that invite courts to decide when state laws should be preempted by the supremacy of federal law.

This Essay focuses on the tensions between state laws and federal copyright law. It argues that since the enactment of the express preemption provision of the Copyright Act of 1976 copyright preemption jurisprudence has become more and more formalistic. Courts nowadays decide whether state laws are preempted by mechanically applying tests that, too often, have little to do with identifiable federal copyright policies.

The problem of copyright’s express preemption doctrine is exacerbated because it is almost the exclusive legal tool that courts use to address the potential conflicts between state laws and federal copyright law. The Essay argues that there is no need for courts to limit themselves to the express preemption doctrine. It explores whether the inclusion of an express preemption provision in the Copyright Act was meant to curtail or even eliminate other forms of preemption. This is not an easy question, but, considering the structure of the Copyright Act, its legislative history, and the absurd result that would be conceivable if preemption is limited to express preemption, it rejects that approach. The Essay, therefore, concludes by calling courts to routinely apply the principles of implied preemption when state law seems to conflict or to stand as an obstacle to federal copyright policy. The doctrine can provide courts with an effective tool and inject much-needed flexibility into this area of the law.

Keywords: Copyright, Preemption, State Law

Suggested Citation

Rub, Guy A., A Less-Formalistic Copyright Preemption (September 19, 2017). 24 Journal of Intellectual Property Law 327 (2018), Ohio State Public Law Working Paper No. 412, Available at SSRN: https://ssrn.com/abstract=3039458

Guy A. Rub (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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