I've got Georgia on my mind, but I think its a migraine. In Briggs v. State of Georgia, the Supreme Court of Georgia demonstrated why the preemption provision in 17 USC 301 is in need of tightening up. At issue was the constitutionality and possible preemption of a state statute (OCGA Sec. 16-8-60(b)), that makes it a crime, inter alia, to sell or distribute sound recordings and motion pictures unless the copy "bears the actual name and address of the transferor of the sounds or visual images in a prominent place on its outside face or package." The statute makes no distinction between authorized or unauthorized copies. Sections 109 and 202 of title 17 permit the lawful owner of a copy to sell or distribute the copy without the obligations imposed by the Georgia statute, setting up, for me a preemption issue. (Other states have similar provisions).
The majority of the Georgia Supreme Court dismissed the preemption argument in the briefest of discussions without mentioning Sections 109 or 202: "The statute does not criminalize unauthorized copyrighted works. The federal copyright law, on the other hand, protects the exclusive right of the copyright owner to reproduce, perform, or distribute or display the copyrighted work. ... Thus, the Georgia statute contains an extra element -- i.e., labeling -- which qualitatively distinguishes it from federal copyright law and saves it from preemption." (None of the concurring or dissenting opinions take the matter up).
It is true that the Georgia statute is directed toward labeling, but it does make criminal, activity that Sections 109 and 202 permit. Congress’s power to preempt state law is a fundamental constitutional power embodied in Article VI (2), and occurs when Congress is exercising one of its Article I powers. Preemption may occur in one of three ways: (1) when there is an express statutory provision declaring state law preempted (express preemption); (2) when even in the absence of a statutory preemptive provision, Congress intends federal law to "occupy the field" (field preemption); (3) and when state law conflicts with a federal statute even where Congress has not occupied the field (conflict preemption). Conflict preemption occurs when a state law stands as an obstacle to a federal purpose or where it is impossible for a private party to comply with both state and federal law. These three categories are not rigidly distinct, and may operate in conjunction with one another.
The extra elements test has its most useful application with express preemption, and less, if any, with field or conflict preemption, as in the Georgia statute. One way to look at the Georgia law (and similar provisions) is as a form of consumer protection, designed to ensure that consumers aren't defrauded about the source of the goods. (Or as another way for content owners to put pirates in jail). Such a law wouldn't be preempted as to fraudulent goods, but what about goods that are lawfully made, and which, say, simply have no express attribution of source as required by the Georgia statute? It is one thing to ban false designations of origin, and quite another to require a designation of origin on lawfully made goods which consumers have a right to dispose of pursuant to 17 USC Sections 109 and 202.