COPYCENSE

“In the era of digital delivery of content, copyright owners have turned with a vengeance to contract law to specify the rights and responsibilities of their customers. Many copyright owners today seek to avoid the express statutory limits on their rights contained in the Copyright Act by invoking the institution of contract. For example, these contracts attempt to prohibit the exercise of rights universally recognized as fair use, such as copying portions of a work for criticisms, product comparison and reverse engineering, or they seek to limit the application of the first sale doctrine. Enforcement of these contractual provisions alters the statutory scheme defined by Congress in the Copyright Act.

“After exploring the potential chilling effect that these overreaching clauses may have on users’ behavior and why it is critical for courts to find ways to discourage the use of such clauses, this article argues that applying an appropriately tailored doctrine of copyright misuse to these licensing terms would provide a more robust reformation of contracting behavior.”

Lydia Pallas Loren. Slaying the Leather-Winged Demons in the Night: Reforming Copyright Owner Contracting with Clickwrap Misuse. Ohio Northern University Law Review (via SSRN) 2004.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.