Tom W. Bell

On “Codifying Copyright’s Misuse Defense”

I recently posted on SSRN a draft paper, “Codifying Copyright’s Misuse Defense,” Codifying Copyright’s Misuse Defense, 2007 Utah L. Rev. __ (2007) (invited) (forthcoming). Herewith, the abstract:


Although courts have found a misuse defense to copyright infringement, lawmakers have not yet codified it. To clarify the doctrine, and to bring the Copyright Act up-to-date with the law, this paper proposes adding a new § 107(b):
It constitutes copyright misuse to contractually limit any use of a copyrighted work if that use would qualify as noninfringing under § 107(a). No party misusing a work has rights to it under § 106 or § 106A during that misuse. A court may, however, remedy breach of any contract the limitations of which constitute copyright misuse under this section.

The present paper documents § 107(b)’s codification of the judicial precedents, offers legislative history explaining the proposed statute, and discusses how the new law would work in the real world. Although the proposed codification of copyright misuse would in large part simply rationalize what courts have already said, it would also promote the salutary policy goal of encouraging the owners of expressive works to forego copyright rights in lieu of common law ones.

[Crossposted to Agoraphilia.]

May 21, 2007 | Comments |

Viewing 4 Comments

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    Thanks Tom. I'll look at this.

    Some have pointed out that copyright misuse may limiit the reach of DMCA 1201, making it an important aspect of copyright policy if it were codified.
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    Nice summary "Copyright
    owners must not leverage their rights under the Act to commit wrongs against the public."    .

    However, as a layperson, I am somewhat concerned about the conclusion of the ThinSkin/Snarky example. In that example, you conclude "ThinSkin
    would enjoy a good chance of winning contract damages."     I realize that your paper is about codifying the misuse of copyright and not about contract law. Nevertheless, in my opinion, many software "contracts" do not constitute valid contracts, especially when they deny (take away) consumer rights. I hope that this could be a future issue to tackle.
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    Noel: As you'll see when you look over the paper, I very briefly address the question of whether the misuse defense works against DMCA Title I claims. I've found only one court to address the issue, and it found the defense inapplicable. In that, misuse appears to follow fair use; courts have limited both to copyright proper--not para-copyright a la the DMCA.

    Steve: Many, many commentators share your skepticism about shrinkwrap and clickwrap licenses. Courts, however, and for better or worse, don't give a toot; they enforce such contracts fairly routinely.
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    My hope is that more lawyers, as they read this forum, will come to the conclusion that "one-click" contracts are an abomination and will become motivated to reject this concept.

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