All fair points. To the first of which I'd say this: I'd consider myself a fairly strict Constitutionalist, but the 10th just plain doesn't apply here. The point of the 10th is to make clear that any powers that are not delegated to the federal government in the Constitution go to the states or the people. Since the authority over copyright is an enumerated power given solely to Congress, the states don't have jurisdiction over copyright law whether Congress decides to act on their authority or not. It's entirely a federal power. So if Congress decides that recorded music prior to 1972 isn't subject to copyright, it's not subject to copyright. Interstate commerce is certainly another aspect worth looking at, though that argument was rejected in the California case, which is probably why they're not trying it here. All of that is why I would like to see this go to the SCOTUS. Granted, I would like to see their ruling go a certain way, but even if it didn't, at least we'd have an entity on the federal level making the federal interpretation of the law clear rather than this all playing out state-by-state.
