DMCA Analogies

Here are two developments in the news recently that have me thinking about their implications for DMCA and public policy.

First: JAMS, the California-based private ADR provider, has announced that its ADR neutrals will rule on the enforceability of “no class action” clauses in consumer arbitration agreements. According to a story on this development in the January 24 National Law Journal (sorry; subscription site only), corporate counsel for big companies are taking this news badly. One GC “accused JAMS of trying to ‘insert itself as a guardian of social policy’ by interfering with the freedom to enter into contracts.” It’s social policy either way, of course. If JAMS should take its policy cues from the Supreme Court, then it seems to have done the right thing.

Question: Is there something here that DMCA critics can use? The intriguing thing for DMCA purposes is that social policy has found a wedge into what otherwise is a pretty closed world of private regulation, and DMCA critics are always looking for strong wedges.

Second: In Pittsburgh recently, a federal trial judge declared that federal obscenity law is unconstitutional. The reasoning was interesting: by virtue of the Supreme Court’s opinion in Lawrence v. Texas, personal privacy rights trump the federal government’s alleged interest in what goes on in the bedroom. In a phrase: if it’s legal to own it, and Lawrence says that it is, then it’s legal to sell it. The court dismissed indictments against California-based online purveyors of some pretty strong stuff.

Question: The “legal to own, therefore legal to sell” principle is something that copyright critics have been working with, but it hasn’t had a compelling basis in legal doctrine. Some people have been looking at analogies in rules about gun control. What about obscenity? Can we take this privacy right out for a DMCA spin, or is Lawrence just a case about sex?