Re: A serials pricing issue

Mark Lemley writes:
>If we let them [copyright owners] 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."

There are a number of situations where the law has provided "default" settings for transactions. The UCC comes most immediately and strongly to mind (Uniform Commercial Code for non-lawyer and non-US folks). The UCC provides a statutory framework for a number of different types of commercial transactions. The parties are free (within limits such as contracts of adhesion, etc.) to change these rules by contract. This seems to provide a fairly decent balance between fairness and flexibility and is a good way to minimize transaction costs.

I don't have any hard figures but my gut tells me that 90+% of all copyright materials that change hands does so without benefit of a signed contract (books, shareware, videos, albums, etc.). Even if you consider shrinkwrap licenses as a contract that number probably doesn't go below 80+%. It's been my experience that only in a *very* limited number of circumstances will people go to the effort of changing the rules of copyright with a written contract.

The change you suggest would drastically increase the transaction costs for all of those situations where fair use and the like are important but other issues did not already justify the cost of an agreement.

It seems to me that the scenario where we set the basic ground rules and then allow the players to change them within reasonable limits is a good one that works well for the most part. Granted, some of those ground rules could use a good overhaul (bringing them at least into the '80's) but the system itself works pretty well. (OK, OK, so I'm a hopelessly optimistic dreamer.)

Nic Herriges
nic[_at_]analogy.com Received on Mon Dec 05 1994 - 19:13:03 GMT