The Ever-Expanding Complete Preemption Doctrine and the Copyright Act: Is This What Congress Really Wanted?

This comment explores the ways in which the doctrines of preemption, and more recently, complete preemption are being applied to the Copyright Act. In deciding whether claims are preempted by the Copyright Act, courts apply the “Extra Element Test.” However, courts are increasingly applying this test by looking at the facts underlying the claim, rather than the elements needed to prove the claim, and preempting more readily. Once satisfied that the claim is preempted, some courts are allowing complete preemption to take hold, and removing the claim to federal court. Courts have traditionally tried to determine whether Congress intended to allow removal, since Congressional intent is the touchstone of removal jurisdiction. However, in light of the Supreme Court’s decision in Beneficial National Bank v. Anderson, some courts have departed with the Congressional intent requirement, holding that by wholly displacing an area of law, Congress intended to create complete preemption . This lax application of the complete preemption doctrine has led to unexplainable results, undermines Congressional intent to preserve various state law claims, and threatens to erode long standing jurisdictional principles.