What I Did During My "Vacation"

Glen earlier referred to my long break from blogging as an "unofficial" vacation, a funny concept, given that it implies blogging constitutes a job. Still, that makes more sense than what Glen's usage implies about his planned break: That it constitutes an "official" vacation! I can see why he might view posting to Agoraphilia as an unofficial job, but it surely isn't an official one. Leastwise, it doesn't pay like one.

Anyhow, I thought I’d share with you what I did during my vacation, unofficial or otherwise. A great many pressing chores (official-job-related chores) combined in a perfectly ghastly storm of deadlines. Foremost among these was completing my latest paper: "Misunderestimating Dastar: How the Supreme Court Unwittingly Revolutionized Copyright Preemption."

Completing that paper by its April 1 deadline forced me to pull an all-nighter—something that I haven't done since I was a college freshman. Really, though, I shouldn't say I completed the paper; rather, I completed a draft good enough to subject to commentary. I sent it to the usual scores of law reviews, and am currently shopping up the offers it has received. I'll still have plenty of time to edit—and presumably improve—the paper, so I invite you to check it out and offer your suggestions. To whet your interest, I here offer you the paper's abstract:

Courts and commentators have misunderstood, and consequently underestimated, the recent Supreme Court case of Dastar Corp. v. Twentieth Century Fox Film Corp. Voicing concern that once a copyrighted work has fallen into the public domain it should stay there, the Dastar Court held that authors of such works cannot use federal unfair competition law to force copiers to give them credit. The Court guaranteed that result by stipulating that "origin" in § 43(a)(1)(A) of the Lanham Act does not refer to the source of an idea, concept, or communication. That holding barred a reverse passing off claim brought under § 43(a) against Dastar Corp. for its having sold videotapes without crediting the plaintiffs as the origin of formerly-copyrighted material included on those tapes. Because lower courts have focused on the legal means employed by the Dastar Court, however, rather than its evident policy goals, they have extended it to facts materially different from those at issue in the case. Courts have applied the case to bar Lanham Act claims against the unauthorized use of copyrighted, uncopyrightable, and trade secret-protected goods. Courts have stretched it to cover services, too. Most significantly, in a move that effectively doubles Dastar's reach, courts have even begun applying the case to bar unfair competition claims brought under state law. Although they don't apparently realize it, courts relying on Dastar to preempt state unfair competition claims have signaled a revolution in copyright law. Ever since the enactment of Copyright Act § 301(a) nearly thirty years ago, the express terms of that section have monopolized copyright preemption doctrine. But § 301(a) cannot explain or justify Dastar's evident power to preempt state unfair competition claims. Intentionally or not, the Dastar court has revived the long-moribund and somewhat ill-defined doctrine of implied copyright preemption. Here, even more than with regard to unfair competition, Dastar's consequences look likely to far outreach the Court's original, modest aims. We have surely misunderestimated Dastar's impact on unfair competition law. With regard to copyright law, however, we may still have time to understand and estimate Dastar's ultimate ramifications.

You can find a complete copy of the current draft here [PDF format]. I welcome your comments about almost anything—except my use of "misunderestimate." We've already debated that issue.