Is Consent Overrated?

SHERRY F. COLB

Cornell law professor Sherry F. Colb argues that while consent is an important and necessary condition of many activities in which adults engage, it does not necessarily follow that consent is a sufficient condition as well. Colb describes some circumstances in which the apparent consent of the parties does not make the result desirable or good.

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McAdory v. M.N.S. & Associates, LLC

Docket: 18-35923

Opinion Date: March 9, 2020

Judge: Morgan Christen

Areas of Law: Consumer Law

The Ninth Circuit reversed the district court's dismissal of a Fair Debt Collection Practices Act case, holding that a business that buys and profits from consumer debts, but outsources direct collection activities, qualifies as a "debt collector" subject to the requirements of the Act. The panel joined the Third Circuit in concluding that an entity that otherwise meets the "principal purpose" definition of debt collector cannot avoid liability under the FDCPA merely by hiring a third party to perform its debt collection activities. In this case, the panel held that the complaint sufficiently alleged that DNF was a debt collector under the FDCPA, regardless of whether DNF outsourced debt collection activities to a third party. The panel remanded for further proceedings.

Skidmore v. Zeppelin

Dockets: 16-56057, 16-56287

Opinion Date: March 9, 2020

Judge: M. Margaret McKeown

Areas of Law: Copyright, Entertainment & Sports Law, Intellectual Property

The estate of guitarist Randy Wolfe filed suit claiming that Led Zeppelin copied portions of Taurus, a song written by Wolfe and performed by his band Spirit, in Led Zeppelin's opening notes of Stairway to Heaven. The en banc court affirmed the district court's judgment after a jury trial in favor of Led Zeppelin, holding that the 1909 Copyright Act, which does not protect sound recordings, controlled its analysis. In this case, Taurus was an unpublished work registered in 1967. Because the deposit copy defines the four corners of the Taurus copyright, the en banc court held that it was not error for the district court to decline plaintiff's request to play the sound recordings of the Taurus performance that contain further embellishments or to admit the recordings on the issue of substantial similarity. The en banc court also held that plaintiff's complaint on access was moot. The en banc court affirmed the district court's challenged jury instructions; rejected the inverse ratio rule, overruling circuit precedent to the contrary; and held that the district court did not err in its formulation of the originality instructions, or in excluding a selection and arrangement instruction. Finally, the en banc court affirmed the district court with respect to the remaining trial issues and its denial of attorneys' fees and costs to Warner/Chappell.