Re:

> From tdarcos[_at_]access.digex.net Thu Jun 23 22:05:09 1994
>
> The question boils down to whether the rights granted to someone who is a
> member of the public can be contracted away, and specifically as the
> result of a written contract. That's an interesting question which I
> don't know if there has been an answer in the form of a court case.
>
> I wonder, would a court uphold a contract that prohibited the person who
> "licensed" a computer program where the contract prohibited them from
> making a backup copy? That is a necessary part of common practice, but
> can it be contracted away?
>

I wouldn't entirely conceed that shrinkwrap is dead (v unwell perhaps) and I was only using it as an example, some software is "sold" using arms-length contracts.

But I think the point is that licenses can impose a variety of restrictions. I had also just assumed without thinking that we could contract away rights (everytime we license something or sell an IP right that would be happening). If I paid you a thousand dollars not to say "X" then wouldn't that be a good contract. Release agreements often have no disparagement clauses. Now whether I can contract to sell you my kidney, child or ... there are limits defined by law makers/public/courts but I dont think giving up my fair use rights would offend public norms ... or would it?

Don Berman wrote ...
> But I see no reason
> why all works must be treated the same. Sec. 107 now imposes a fair
> use limitation on unpublished works. But that still requires a balancing
> of the four factors under Sec. 107.
> NOthing says that those four
> factors must be balanced the same for a carefully worked out agreement
> between an estate which controls the letters and an author and a
> standardized shrink wrap agreement.

Do all works need to be treated differently vis a vis the four factors and fair use? I'm not sure. As I mentioned above some software is sold arms length? I guess what is being proposed is that we should look at the economic power of of the contracting parties (the old contract of adhesion analysis?). But if the parties have equal stength then why cant I contract away those rights. Why should the state prevent me from gaining value from a fair-use right given to me? Received on Fri Jun 24 1994 - 15:42:15 GMT