The extent of federal power over our lives has been much in the news recently, what with the Supreme Court holding days of hearings on whether the Affordable Care Act is an unconstitutional exercise of Congress’s power under the Commerce Clause. Like the ACA, copyright regulation is federal, but it derives its constitutional authority from a different part of the Constitution, known as the Patent and Copyright Clause, which gives Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Congress’s power to enact copyright legislation is therefore uncontroversial. Where controversy sometimes arises, however, is on the question of whether that power is unique to Congress, or whether the states share it. (In this way, the question of federal copyright power is similar to the question in another high-profile Supreme Court case this term, Arizona v. United States, in which Arizona claims that federal immigration regulation does not preclude state regulation.) [...]

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