Comments on: On “Codifying Copyright’s Misuse Defense”

By: Steve R.

Steve R. — Tue, 22 May 2007 20:33:49 +0000

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.

By: Steve R.

Steve R. — Tue, 22 May 2007 19:33:49 +0000

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.

By: Tom W. Bell

Tom W. Bell — Tue, 22 May 2007 19:10:57 +0000

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.

By: Tom W. Bell

Tom W. Bell — Tue, 22 May 2007 18:10:57 +0000

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.

By: Steve R.

Steve R. — Tue, 22 May 2007 17:45:19 +0000

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.

By: Steve R.

Steve R. — Tue, 22 May 2007 16:45:19 +0000

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.

By: Noel

Noel — Tue, 22 May 2007 16:17:04 +0000

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.

By: Noel

Noel — Tue, 22 May 2007 15:17:04 +0000

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.