Sold Downstream: Free Speech, Fair Use, and Anti-Circumvention Law

[Excerpt] “Here’s a hypo. Living in Asia, I purchased a shameful amount of music and movies, all legit purchases through reputable stores, HMV and Tower Records, but little of which will get reissued. I wanted to preserve my collection but software in the discs prevented me from ripping backup copies to my computer. Lacking the technological savvy to get around this software myself, I purchased and used a product to help me circumvent these controls. Discuss. Courts agree that copying the music and movies here is infringement but that fair use may provide a defense. However, courts do not agree as to whether or not fair use provides a defense when determining the liability of selling products that enable me to access and copy my CDs to my computer. This article examines a line of cases in the Ninth Circuit that hold that fair use or lawfulness of copying is irrelevant in calculating liability under the Digital Millennium Copyright Act (DMCA) and another line of cases in the Federal Circuit which hold that fair use should be relevant. In particular, this article argues that calculating fair use into the analysis is crucial in maintaining the balance between the First Amendment’s protection of free speech rights and copyright’s regulation of speech. Part I will outline the relationship between free speech rights and copyrights, noting the important role that fair use plays in keeping this relationship harmonious. Part II will outline the anti-circumvention provisions in the Digital Millennium Copyright Act and argue that these broad brush provisions chill speech. Part III will discuss two streams in the current law: first, the Ninth Circuit’s decisions 321 Studios v. Metro Goldwyn Mayer Studios, Inc.1 and Sony Computer Entertainment America, Inc. v. Divineo; 2 and, second, the Federal Circuit’s decisions in The Chamberlain Group, Inc. v. Skylink Technologies, Inc.3 and Storage Technology Corporation v. Custom Hardware Engineering & Consulting, Inc.4 Part IV will argue that the Federal Circuit’s approach to fair use is favored. However, an alternate analysis toward their conclusion would have more constitutional integrity. Namely, the DMCA, as applied to software, should be seen as a content-based restriction on speech and should not be read to prohibit circumvention of access controls where the circumvention would not constitute a copyright violation.

The Inconsistencies of Consent

U.S. legal scholars have devoted a lot of attention to the role that consent has played in laws and judicial consent jurisprudence. This essay contributes to the discussion on consent by examining judicial approaches to determining the existence of consent in three selected areas--contracts, tort claims involving medical treatment, and criminal cases involving admissibility of confessions, from the late nineteenth century until the present. This article examines how courts have approached the basic factual question of finding consent and how judicial approaches in those areas have evolved over time. The review shows that the late 19th century saw courts adopting a similar approach for finding consent across the three areas. Courts focused on observable signs of consent, verbal or nonverbal communications, to determine existence of consent. They found consent unless circumstances suggested that the consenting party lacked the power to use their will. However, courts began to diverge in the early and mid-twentieth century in their approaches to ascertaining consent. In contract disputes, courts’ consent approach has remained static, focusing on observable signs of consent or, in contract law parlance, “manifestations of assent.” In tort cases involving medical treatment, courts began requiring more than observable signs of consent; instead, courts focused on the consenting party’s access to information and comprehension, described by scholars as the informed consent doctrine. The judicial consent approach undertook the most dramatic change in criminal cases involving admissibility of confessions with judicial adoption of presumption of non-consent in custodial interrogation without the required warnings. This article suggests that multiple factors appear to have contributed to divergent consent approaches across the three areas. Consent plays a different role in contract disputes from that in medical treatment and criminal confession cases. Courts have adopted a heightened consent inquiry in medical treatment and criminal confession cases as responses to significant social changes and increased public awareness of individual rights and the need to protect individuals from potential abuses and arbitrary government power. In addition, human cognitive biases—our flawed decision-making process, may have also contributed to the divergence

Federalism, Uniformity, and the State Constitution—State v. Gunwall, 106 Wn. 2d 54, 721 P.2d 808 (1986)

In State v. Gunwall the Washington Supreme Court announced six criteria that Washington courts are to employ in determining whether a constitutional claim should be decided on state rather than federal grounds. This method of state constitutional analysis implicitly rejects the idea that the state constitution applies to every case in which it is raised. Instead, the method assumes that the federal Constitution controls claims that individual rights have been violated, unless application of the state constitution can be justified through use of the court\u27s criteria. These criteria confine the development of independent state constitutional doctrines to provisions of the state constitution that are textually distinct from the federal Constitution, or to cases that present other defined reasons for departing from federal doctrine. The Gunwall court\u27s method of state constitutional analysis undermines the role of Washington\u27s constitution as a fundamental element of the state\u27s law. This Note proposes a method for state constitutional analysis that is not focused on maintaining consistency with the content of federal doctrine. A principled, independent body of state constitutional law will not be readily achieved unless state courts focus directly on the text and structure of the state constitution in its entirety, without employing limitations that are keyed to federal constitutional doctrine

Determining the Territorial Scope of State Law in Interstate and International Conflicts: Comments on the Draft Restatement (Third) and on the Role of Party Autonomy

Analyzing a conflict of laws requires thinking both about the scope of potentially applicable law and about priority, or choice, among potentially applicable laws. The Restatement (Second) of Conflict of Laws, published in 1971, contains little guidance on how, or in what order, courts are to address these two inquiries. The draft Restatement (Third), in contrast, differentiates clearly the respective roles of the two analytical elements. It characterizes the resolution of a choice-of-law question as a two-step process. First, the scope of the relevant states’ internal laws must be determined, in order to ascertain which states’ laws might be used as a rule of decision. Second, if more than one state’s law might be used as a rule of decision, and those laws conflict, it must be decided which law is given priority. The draft defines “internal law” to include restrictions on the geographic scope of the law. However, there are two questions the draft does not answer clearly. First, is the definition of internal law meant to include only express restrictions on scope? Second, absent explicit indications of legislative intent, how is the scope of a law to be determined? In particular, should courts employ a presumption against the extraterritorial application of state law? This article begins by analyzing the role of the presumption against extraterritoriality in supplying implied restrictions on the scope of law. It considers the role of the presumption in both international and interstate conflicts of laws, and argues that the Restatement (Third) should differentiate clearly between those two contexts. It then turns to the question whether geographic scope restrictions should properly be considered part of a state’s internal law. The paper analyzes that question through the lens of a common problem: a contract dispute involving a transaction or event that falls outside the scope of the law chosen by the parties to govern their agreement. On the basis of that analysis, it concludes that forthcoming sections will need to address the implications of the draft’s categorical treatment of legislative scope