Hastings Constitutional Law Quarterly


Brian McFarlin


In 2004, California Governor Schwarzenegger signed into law California Penal Code section 653aa. Under the statute, anyone located in California who, "knowing that a particular recording or audiovisual work is commercial, knowingly electronically disseminates all or substantially all of that commercial recording or audiovisual work to more than 10 other people without disclosing his or her email address, and the title of the recording or audiovisual work" is guilty of a misdemeanor. While this statute allows copyright holders, such as music companies, to easily identify copyright infringers online, it accomplishes this goal by going outside of federal copyright law entirely and creating new state crimes that mirror their federal counterparts. In this note, I will explore the constitutional and public policy concerns raised by the statute. I will also propose legislation that accomplishes the copyright holder's goal of identifying copyright infringers, but implicates fewer preemption issues and includes better safeguards aimed at protecting individual privacy rights and public safety than does section 653aa.