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Criminal Resource Manual

1844. Copyright Law -- Preemption Of State Law

Historically, copyright protection had been provided through a dual system under which the Federal government, by statute, provided limited monopolies for intellectual property, at the same time that state statutory and common laws established roughly equivalent protections. In 1976, Congress fundamentally changed this system by introducing a single, preemptive federal statutory scheme. The federal preemption provision, codified at 17 U.S.C. §  301(a), states that:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

As stated in the legislative history, "(a)s long as a work fits within one of the general subject matter categories (of federal statutory copyrights), the bill prevents the states from protecting it even if it fails to achieve federal statutory copyright because it is too minimal or lacking in originality to qualify, or because it has fallen into the public domain." H.R. Rep. No. 1476, 94th Cong., 2d Sess. 51, 131 (1976). "Section 301 in effect establishes a two-pronged test to be applied in preemption cases." Crow v. Wainwright, 720 F.2d 1224, 1225 (11th Cir. 1983), cert. denied, 469 U.S. 819 (1984). Under this preemption test, the states are precluded from enforcing penalties for copyright violations if the intellectual property at issue falls within the "subject matter of copyright" as defined by federal law and if the claimed property rights are "equivalent to" the exclusive rights provided by federal copyright law. Id. at 1225-26. Adopting this standard, the Eleventh Circuit has held that section 301 now precludes state criminal prosecutions for acts of copyright infringement. Id.

Currently, 43 states have "true name and address" statutes that can be used to combat piracy. Many of these statutes, however, are narrowly drawn to pertain only to the sale of videotapes and sound recordings. Prosecutors are encouraged to consult with state authorities, or with the Computer Crime and Intellectual Property Section of the Criminal Division for current information on the operation of these statutes.

[cited in Criminal Resource Manual 1859; USAM 9-71.001; USAM 9-71.010]