Addressing the issue as framed by the parties on appeal, I generally agree with my colleagues’ conclusion that summary judgment was improper because there existed genuine issues of material fact regarding New York State’s fair use defense. Because it is challenging noncommercial use by the state, AAMC has the burden of proving “that some meaningful likelihood of future harm [to marketability] exists.” Sony Corp. v. Universal City Studios, 464 U.S. 417, 451, 104 S.Ct. 774, 793, 78 L.Ed.2d 574 (1984). I agree that Professor Haney’s testimony was sufficient to create a factual issue in this regard, and that the availability of means to minimize any such harm is also in dispute. Further, at least two requirements of the STA — filing any research reports used in preparing the MCAT, and filing statistical reports that categorize scores by race and gender with a committee that reports to the state legislature — appear unrelated to the district court’s concern with the AAMC’s ability to reuse questions.
I write separately to express my doubt concerning a more fundamental aspect of the district court’s opinion, the recognition of a preemption-type conflict between the STA and the Copyright Act. The district court reasoned as follows on this issue:
[T]he New York statute will require the AAMC as owner of a copyrighted standardized test to disclose an exam which it wishes to retain as confidential. The State Act will also make the disclosed MCAT materials “public records” with respect to New York’s Freedom of Information Law, and therefore subject these documents to reproduction and disclosure to members of the public. As such, unless the disclosure provisions of the New York statute fall into an exception to the exclusive rights of a copyright owner, those provisions will directly conflict with federal law and thereby be preempted.
Association of Am. Medical Colleges v. Carey, 728 F.Supp. 873, 881 (N.D.N.Y. 1990). My colleagues, apparently in substantial agreement with this analysis, conclude: “If the STA facilitates infringement, it conflicts with the federal Copyright Act and is preempted” (subject, of course, to *527defenses, such as fair use, provided by the Copyright Act itself).
I would not find a fatal conflict so easily. There is a meaningful distinction between AAMC’s exclusive right to reproduce and distribute its copyrighted MCAT and the business of administering, and evaluating students’ responses to, the MCAT as a means of ranking medical school applicants. The former is protected by the copyright laws, and New York cannot create its own scheme whereby an author establishes and protects the reproduction and distribution of his work. But when the AAMC seeks to administer the MCAT and rank applicants on the results, it enters a field of conduct that, as I view the matter, New York may permissibly regulate. Specifically, it seems to me that New York may require that the author of such an examination surrender a limited amount of his copyright protection in exchange for the privilege of administering the examination within the state.
The district court addressed this matter briefly:
Defendants ... contend that the State Act does not force [AAMC] to disclose the MCAT materials, but rather presents the AAMC with a choice: avoid disclosure by not administering the exam within New York or administer the MCAT within New York and be subject to the State’s disclosure requirements. This argument, while of potential use in situations where the State is seeking to regulate an area left open by the federal government, has no merit where the State law is preempted by the federal law pursuant to the Supremacy Clause. A state may not answer an assertion of federal rights with the reply that one should go elsewhere to exercise those rights. Cf. Capital Cities Cable v. Crisp, 467 U.S. at 711, 104 S.Ct. at 2706.
728 F.Supp. at 888. There is, however, no federal regulation of standardized testing that would displace New York’s statutory scheme. Capital Cities, by contrast, involved cable television, an area of pervasive federal regulation.
I would rule that a limited degree of interference with copyright privileges is permissible where a state, for purposes wholly unrelated to the policies that underly the protection of intellectual property, endeavors to regulate the manner in which an author markets his expression. Here, the chosen means of marketing the MCAT results in a secretive method of ranking medical school applicants. The State’s policy is directed at that marketing strategy, and any interference with copyrights is incidental.
An analogy can be found in state statutes that regulate the licensing arrangements between movie distributors and theatre operators. In Allied Artists Pictures Corp. v. Rhodes, 496 F.Supp. 408 (S.D.Ohio 1980), aff'd in pertinent part and remanded in part, 679 F.2d 656 (6th Cir. 1982), Ohio had enacted a statute that, inter alia: (1) required distributors to provide potential exhibitors with a “trade screening” of a film prior to the commencement of bidding or negotiation for a license, and (2) prohibited distributors from exacting a minimum guaranteed payment in connection with any licensing agreement that based payments upon a division of box office receipts. 496 F.Supp. at 419-20. The distributors contended that the statute conflicted with the copyright protection of their films, and was accordingly preempted.
The district court rejected the preemption challenge, pointing out that “[t]he Supreme Court has long recognized the distinction between the rights composing copyright and the property produced and marketed by virtue of the copyright.” Id. at 446. Reviewing cases that upheld the taxation and antitrust regulation of copyrighted materials, id. at 446-47, the court concluded that “[t]he authority of the states to regulate market practices dealing with copyrighted subject matter is well-established.” Id. at 447.
With respect to the requirement of a trade screening, the distributors argued that the state statute unlawfully compelled a performance, an exclusive right under the Copyright Act. In rejecting this posi*528tion, the Allied Artists court engaged in the same analysis that the defendants herein urged upon the district court below:
[T]he trade screening requirement only affects copyright holders who wish to license their films in Ohio; it does not compel performance in any other circumstances.
The provision does not deprive the plaintiffs of their right to decide whether or not to perform the work publicly---[T]he plaintiffs are free to choose not to perform their work publicly, and may continue to enjoin others from performing it. Thus they retain complete control over the rights granted by the Copyright Act: to prohibit display, performance, reproduction and distribution. It is only after the copyright owner has made the decision to perform the work — to release the motion picture — in Ohio that the Ohio Act steps in and compels a performance before exhibitors as a condition to the distribution of films in Ohio.
496 F.Supp. at 447.
On appeal, the Sixth Circuit expressly adopted the analysis of the Ohio district court with respect to the distributors’ copyright preemption challenge. See 679 F.2d at 662-63 & n. 4. Further, in addressing a similar Pennsylvania statute against which the same copyright preemption argument was advanced, the Third Circuit “agree[d] with the framework of analysis set forth by the Ohio district court and adopted by the Sixth Circuit [in Allied Artists ].” Associated Film Distribution Corp. v. Thornburgh, 683 F.2d 808, 816-17 (3d Cir. 1982); see also Associated Film Distribution Corp. v. Thornburgh, 614 F.Supp. 1100, 1121-24 (D.Pa.1985) (following Allied Artists and finding no preemption), aff'd, 800 F.2d 369 (3d Cir.1986), cert. denied, 480 U.S. 933, 107 S.Ct. 1573, 94 L.Ed.2d 765 (1987); Warner Bros., Inc. v. Wilkinson, 533 F.Supp. 105, 108 (D.Utah 1981) (similar ruling), appeal dismissed and case remanded, 782 F.2d 136 (10th Cir.1985).
In sum, I cannot agree that a preemptive conflict between the Copyright Act and the STA results if the STA is deemed to “facilitate” copyright infringement, subject only to the defenses accorded by the Copyright Act. Rather, I would direct the district court to address the threshold preemption question on remand in accordance with the principles and authorities set forth herein-above.