Promises! Promises!
Responding to Arthur R. Miller, Common Law Protection For Products of the Mind: An "Idea" Whose Time Has Come, 119 Harv. L. Rev. 703 (2006)
This Reply confronts two dichotomies — published works versus unpublished works, and federal law versus state law. Part of the challenge in the vast body of cases that Professor Miller confronts inheres in the circumstance that federal law applies to both published and unpublished works, and state law likewise applies to both published and unpublished works. A vastly simpler world would be one in which, for the most part, published works were the domain solely of federal statutory copyright protection, and the states needed to keep out of the picture. Correlatively, on this hypothetical planet, state law would form the exclusive regulator of unpublished works, and federal law (along with its preemptive force) would not enter the equation.
The United States was located on that other planet before 1978. At that time, the law of ideas was far less diffuse and confused. Since that time, our country has had to live in a world that mandates a federal system with governments at both levels required to formulate legal regimes governing both published and unpublished works. It is instructive to focus on what has been lost as well as what has been gained. But given that it is certainly too late to turn back the clock to the scheme of the 1909 Act, we can thank Professor Miller for bringing needed order to the law of ideas as it simultaneously exists in two legal domains.
119 Harv. L. Rev. F. 74 (2006) | DOWNLOAD PDF
