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Copyright Plus:
Fair Use and Standard Form Contracts in the Digital Age
Viva R. Moffat
© 2006
Abstract
This article concerns the many ways that business entities use adhesion contracts
to contract around baseline copyright rules, fair use in particular. While many scholars
and judges have addressed the question of “contracting around” the Copyright Act,
almost all the discussion has focused on agreements for the sale or use of software and
electronic databases. There has been little attention paid to the proliferation of contracts
for other goods or services that contain provisions limiting fair use (“super-copyright”
provisions). In this article, I will argue that the issue cuts across a variety of industries
and deserves attention in all of its incarnations; I will further argue that state enforcement
of these provisions limiting fair use should be preempted.
In addressing the propriety of super-copyright provisions, many courts and many
academics focus on the normative question of what copyright law and policy should be.
While valuable for Congress, this normative approach is inappropriate for a preemption
analysis, which should focus on the descriptive task of examining and interpreting the
statutory text and Congressional intent. This article seeks to provide an preemption
analysis of super-copyright clauses that is grounded in the question of what copyright law
and policy is, setting a framework that could be used by courts (also recognizing that a
purely descriptive analysis is probably impossible). Applying this framework, the article
concludes that super-copyright clauses conflict with current copyright law and policy,
with the major caveat that current copyright policy concerning fair use and “contracting
around” is far from clear.
In addition, and precisely because of this lack of clarity, this article will also make
a structural argument: courts ought to preempt super-copyright clauses in order to initiate
a dialogue with Congress, indicating that Congress is the institution with the capability
and the mandate to make the complex policy determinations regarding the role of fair use
in the federal copyright scheme. Although I argue that courts should preempt state
enforcement of super-copyright provisions, it is really Congress that ought to determine
and clarify federal copyright law and policy. Preemption may be “too blunt an
instrument,” but it may be the only effective tool to resolve the question of which
copyright rules are mere default rules and which set forth a federal policy from which
there ought to be no variation.