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10 Vand. J. Ent. & Tech. L. 1 (2007-2008)


Section 301 of the Copyright Act of 1976 expressly preempts state law actions that are within the "general scope of copyright" and that assert claims that are "equivalent to" the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior 1909 Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration.

The legislative history of § 301 stated that this preemption provision was set forth "in the clearest and most unequivocal language possible, so as to foreclose any conceivable misinterpretation...and to avoid the development of any vague borderline between State and Federal protection." In fact, this goal has never been realized. Instead, there are literally hundreds of federal and state decisions interpreting this provision, which can charitably be described as inconsistent and even incoherent. And, despite the plethora of court of appeals decisions that have overruled district court decisions, and/or that have contained strong dissenting opinions, the U.S. Supreme Court has never decided a case under § 301. In short, it would not be an overstatement to describe this important provision in the Copyright Act as a "legislative failure."

This Article first reviews the background of the 1909 and 1976 Acts, including the rationales for copyright protection and the role played by the preemption provision in advancing those goals. This Article canvasses extensively the judicial treatment of § 301, including detailed critiques of many of these decisions. This Article also examines the constitutional aspects of preemption, including the role played by the Supremacy Clause. Most importantly, this Article seeks to provide ways to advance the original goal of the drafters of § 301, of federalizing copyright law, and of affording consistent interpretation of the preemption provisions. This Article continually returns to first principles - the goals of the drafters - and uses them to argue for expanded preemption of many state law claims.


Reprinted with permission of Vanderbilt Journal of Entertainment and Technology Law.



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