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The second “circuit split” we’ll look into in this series is disagreements among federal circuits with how to apply the DMCA. 17 U.S.C. § 1201 of the Digital Millennium Copyright Act (DMCA) has a series of provisions aimed at targeting parties that engage in “anti-circumvention” of protected works. This law was designed in the early days of the internet when a lot of the major incumbents in the music and movie industries were losing their minds. Depending on your age, you may or may not recall that Napster got very big very fast, and all of the sudden everyone could share…

This post explains why §301 copyright preemption splits matter and previews how each circuit treats contract‑based scraping claims. I’ve written over 3000 words on this subject before, but this is probably the most understudied and under-litigated issue in the world of web scraping. Preemption means that federal law overrides state law when the two are in conflict. The idea behind preemption is that certain legal issues must be handled at the national level rather than varying by state. Indeed, it is written into Section 301(a) of the Copyright Act that copyright law expressly preempts any state law that is “equivalent”…

When it comes to web-scraping legal issues, people want easy answers. They want to know if web scraping is legal or it isn’t. Unfortunately, the truth is rarely as simple as that. The reason is two-fold: First, context always matters in web scraping. The nuances of when, where, what, and how you’re scraping matter in assessing legality. That requires a case-by-case analysis. And second, there is considerable variation in different jurisdictions in terms of how the laws governing web scraping are interpreted. Most people don’t think about state-by-state legal differences when they think about web-scraping laws. And very few people…

TL;DR The EU Data Act becomes an enforceable law on September 12, 2025. It requires sharing of data from all connected products or services. It applies to any US business that has data in its possession from connected products or services that is above a certain size threshold. Most US companies are not at all prepared for this. And many to whom it applies likely haven’t even heard of it. This article is designed to let you know the basics in time to get ready. Introduction The EU Data Act is a law that is almost entirely without precedent in…

Plenty of people have written about whether AI is going to replace lawyers. Leaving that question aside, not enough people have focused on the way widespread use of AI is going be used as evidence in legal proceedings. Throughout modern times, when people had legal questions, they asked lawyers. And if they formed an attorney-client relationship with those lawyers, those conversations would be protected from being used against them in the legal process. Now, the most powerful form of pseudo-intelligence in history has arisen over the course of just a few years, and people are already starting to use this…

I was recently in a high-stakes negotiation with a skilled negotiator. At the outset of the negotiation, he performed a few small gestures that made the parties feel comfortable with one another, and then he began his negotiation with a request: He asked us “to assume positive intent.” I smiled and nodded. It’s a nice thought. Sort of. But in this context, it was ridiculous. The parties had a long history of turmoil. They parties were in related and adjacent industries and were always going to have to deal with each other in some capacity. But their past interactions were…