Re: Battle of the forms & shrinkwrap terms

Don Berman writes:

> I doubt whether
> the grant of authority to modify by contract under (f)(4) would permit
> modifying the other rights granted under 108(e). Such a reading
> would then allow the publisher to restrict rights of fair use which is
> not permissible.

I cannot remember any cases on this point: is it really true that you cannot limit fair use rights by contract? One of the principal purposes of fair use is to govern situations where the transaction costs of bargaining are too high to permit an otherwise beneficial licensing agreement. That's what underlies the "spontaneous" provision of the classroom copying guidelines: If the copying is planned in advance, well then you have time to negotiate over a license.

If you've already got a contract, then that justification for fair use goes out the window.

Another justification for fair use would be, I suppose, that Congress chose to favor certain uses by requiring others to support them: education is considered a favored activity, e.g., to which copyright holders sometimes must make an involuntary donation (the effect of fair use). But if this is carried too far, such as by preventing any limitations on fair use under a voluntary contract, then the copyright holders will have a disincentive to deal with the education market. That will either limit the supply or raise the prices of educational materials or both. That would hardly seem advantageous to educators or their students.

Hence there would seem to be every argument in favor of allowing parties by contract to limit what would otherwise be the fair use of copyrighted materials.

        --Trotter Hardy

  +-------------------------------+------------------------------------+
  |  thardy[_at_]mail.wm.edu           |     Prof. I. Trotter Hardy         |
  |  Voice: (804) 221-3826        |     Marshall-Wythe School of Law   |
  |  Fax:   (804) 221-3261        |     College of William & Mary      |
  |  BBS:   (804) 221-1137        |     Williamsburg, VA 23187         |
  +-------------------------------+------------------------------------+