Volume 73, Number 1

April 1998

An Odyssey Through Copyright’s Vicarious Defenses

David Nimmer

It is rare that an issue of fundamental importance to copyright litigation goes wholly unaddressed. Yet that rare situation applies to the question of how courts should treat affirmative defenses raised by “related” defendants, i.e., those who are claimed not to have committed the infringement itself (the “primary” defendants) but who are nonetheless sought to be held responsible on the theories of vicarious liability or contributory infringement. Should those defenses inure to the benefit solely of the defendant who pleads them? Or should they be evaluated in the context of the primary claim of infringement, and thus radiate outward for the benefit of all defendants in the action? Although legions of cases confront such vicarious defenses, they do so in a wholly uncritical fashion—some adopt the former approach, others the latter; their unifying point is that they fail to articulate any basis for drawing the distinction. Neither do the scholarly commentaries treat this issue, notwithstanding that it would seem to be essential to sound progress in the field. The case law’s failure to address this disparity would give rise to no problems if only everyone’s intuition invariably agreed as to which cases fit into which categories. Recently, however, I found myself for the first time ever disagreeing with how a particular court evaluated the affirmative defense of a related defendant. The case in question is Religious Technology Center v. Netcom On-Line Communications Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995), which rejected the primary defendant’s fair use defense, and then when confronting the related defendant’s summary judgment motion recalibrated the entire fair use equilibrium with respect to the circumstances of that new defendant. To evaluate the wisdom of that court’s treatment of the vicarious fair use defense, it is necessary to take several gigantic strides backwards and to articulate a framework for how related defendants may assert their affirmative defenses, whether personally or globally. Happily, on a recent archaeological romp, I encountered some ancient judicial opinions in which resolution to these issues emerges full-blown from the judicial brow. I hereby present them unedited.

Rethinking Retroactive Deportation Laws and the Due Process Clause

Nancy Morawetz

In 1996 Congress passed two laws, the Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which substantially increased the likelihood that permanent residents will be deported from the United States for criminal convictions. The deportation provisions of these 1996 laws are now being applied retroactively to immigrants who could not or would not have been deported under the law in place at the time the immigrants were convicted for their offenses. Noting the potential injustice of this change in the rules by which immigrants were expected to conduct their lives, Professor Morawetz explores the constitutionality of the retroactive application of these new deportation schemes. Rather than relying upon a traditional ex post facto analysis, however, Professor Morawetz examines how the retroactive application of these laws may offend the Due Process Clause as it has been interpreted and applied in a body of Supreme Court case law addressing economic legislation. The plenary power doctrine alone, Professor Morawetz argues, does not bar the courts from testing the retroactive application of these deportation provisions according to the substantive due process standard enunciated by the Court. In fact, courts may be forced to address the constitutionality of the deportation provisions due to jurisdictional restrictions contained in the 1996 laws. After analyzing the history and text of the 1996 legislation, Professor Morawetz concludes that it would be unconstitutional to apply retroactively many, if not all of these deportation provisions to immigrants whose conduct and convictions occurred prior to the implementation of Congress’s new scheme.

City Services

Gerald E. Frug

City services are conventionally understood as publicly provided consumer goods, and cities are currently organized under local government law in a way that enables people to shop for these consumer goods by voting with their feet. Metropolitan residents who can afford to do so are therefore able to locate in a city with high quality city services while, simultaneously, limiting the taxes they pay for these services by excluding the poor not only from the city but from eligibility to use the services themselves. In this Article, Professor Frug argues that this privatized conception of city services has become a major ingredient in fostering the division of America’s metropolitan areas into neighborhoods of privilege and of want, a division that is all too often marked by lines of race, ethnicity, and class. He calls for replacing the prevailing consumer-oriented vision of city services with an alternative designed to promote what he calls “community building.” Focusing specifically on the widespread desire for good schools and die pervasive fear of crime, he proposes that city services become organized not as a means to separate and divide the metropolitan population but as a mechanism for expanding the capacity of metropolitan residents to live in a diverse society. Doing so, he says, involves opening public schools throughout the region to diversity and making prevention, rather than escape; the predominant strategy for dealing with crime.


Against Constitutional Theory

The Honorable Richard A. Posner

Madison Lecture

In this Madison Lecture, Chief Judge Posner advocates a pragmatic approach to constitutional decisionmaking, criticizing constitutional theorists who conceal their normative goals in vague and unworkable principles of interpretation. After discussing specific constitutional theories as well as the legal academy’s increasing reliance on theory in general Posner, demonstrates the ineffectuality of constitutional theory, using the Supreme Court’s decisions in United States v. Virginia and Romer v. Evans as examples. He argues not that these cases were necessarily wrongly decided, but that the opinions lack the empirical support that is crucial to sound constitutional adjudication. Posner urges law professors to focus their scholarship on forms of inquiry that will actually prove useful to judges and concludes by asking that judges themselves recognize and acknowledge the limitations of their empirical knowledge.


When Men Are Victims: Applying Rape Shield Laws to Male Same-Sex Rape

Elizabeth J. Kramer

This Note argues that in most respects, Rape Shield Laws should be applied to male same-sex rape cases in the same way that they are applied to female opposite-sex rape cases. Cases of male same-sex rape, however, implicate homophobia rather than sexism. As a result, Rape Shield Laws must be interpreted to provide a “shield” in male same-sex rape cases not only for sexual history evidence, but also for sexual orientation evidence. Courts should be aware of both the direct and indirect forms that sexual orientation evidence can take and protect victims and defendants from the admission of evidence in either form.

Closing the Loophole in the Private Securities Litigation Reform Act of 1995

Julia C. Kou

This Note argues that state courts should adopt the Reform Act’s most adequate plaintiff requirement for both securities fraud class actions and derivative suits. Part I reviews the agency costs of strike suits generally with the aid of a paradigmatic case. Part II examines in detail how the Reform Act attempted to reduce these agency costs through various procedural requirements and, in particular, through the most adequate plaintiff requirement. Although the most adequate plaintiff requirement facilitates institutional investor involvement as lead plaintiffs, and such involvement will likely minimize the agency costs associated with bringing a shareholder class action, the fact that this requirement is limited to federal courts has created a new problem, namely, forum shopping. The plaintiffs’ bar may circumvent the Act simply by opting to bring more strike suits in state rather than federal courts. Part III therefore argues that individual states should incorporate similar changes into their procedural laws both to close this loophole and to reduce agency costs.

Forgive Us Our Sins: The Inadequacies of the Clergy-Penitent Privilege

Ronald J. Colombo

This Note will demonstrate that, as understood by most courts and legislatures, the clergy-penitent privilege does not conform completely to the requirements of the First Amendment. As a result, the privilege at times violates the Amendment’s Establishment Clause by unduly preferencing religion. Additionally, at other times the privilege’s protections are insufficient, offending the notions of religious liberty and tolerance upon which both the First Amendment’s Establishment Clause and Free Exercise Clause were built.

The Constitutionality of the Good Friday Holiday

Justin Brookman

Each year on a Friday in late March or early April—two days before Easter—Christians commemorate the crucifixion of their savior Jesus Christ. They call that day Good Friday. Many states have given Good Friday the status of a legal holiday, closing government offices and schools, while countless localities observe the date in any number of ways, such as by shutting down various government services. Recently, many of these provisions have been attacked as violating the Establishment Clause of the First Amendment: “Congress shall make no law respecting an establishment of religion.” This principle precludes government from favoring or endorsing a particular religious sect or religion in general. Critics argue that by giving legal recognition to a purely sectarian holiday such as Good Friday, the state or locality in effect “establishes” Christianity as the government’s religion.