Re: A serials pricing issue

>Scott Ellis writes:

>This does indeed seem to be the game plan. It is permissible, as a
>matter of contract for parties to agree to limit their statutory copying
>rights. If this is the agreement between the parties, what is "fair
>use" according to the local legislation does not determine the issue.
>Copying otherwise than in accordance with the contract amounts to a
>breach of contract, whether or not it is also a breach of copyright.
>

I wonder whether this is always true? In the U.S., for example, several courts have held that reverse engineering computer programs in order to design compatible programs is legitimate under the fair use doctrine. At least one court has been decidedly unsympathetic to a "no reverse engineering" contract, although that decision (Vault v. Quaid, 847 F.2d 255 (5th Cir. 1988)) has some peculiarities.

Copyright owners have the right to control who can buy/license their materials. If we let them avoid copyright law by contract, what is the point of having copyright rules such as fair use, first sale, etc. in the first place? Are all copyright statutes just default rules to be applied in the unlikely case that the copyright owner does not require buyers to sign a contract? Why not explicitly say "the copyright owner has the exclusive right to his work, and other parties have to bargain for any rights they want."

Mark Lemley
Assistant Professor
University of Texas School of Law
mlemley[_at_]mail.law.utexas.edu Received on Fri Dec 02 1994 - 20:56:31 GMT