It helps a little, maybe, because this bill’s proponents will need to argue that it’s not a copyright law at all, that it has nothing to do with copyrights, that it grants no new copyrights and does not strengthen existing copyrights. They’ll argue that the law is passed not under the Copyright and Patent Clause, but under the Commerce Clause. If it’s in Title 17, it’s a dead giveaway that this is really a copyright law (same dead giveaway as the bootlegging statute, whose drafter, William Patry, wanted it in Title 15, to keep anyone from thinking it was a copyright law).

It also makes some sense to put it in Title 35 (or Title 15) because the bill, as currently drafted, grants the Patent and Trademark Office regulatory authority in a copyright-related area, where it’s never had such authority before. (If I were Marybeth Peters, I’d be rather upset about this proposal.) If it were put in Title 17, the question of why the PTO is given authority to regulate a copyright law would be placed in even starker relief.

I suspect that this has something to do with the attempted copyright power grab by the PTO in the mid-90s, but I don’t know for sure.