Re: A serials pricing issue

From: Mark Lemley <MLEMLEY[_at_]mail.law.utexas.edu>
Date: Tue, 06 Dec 1994 10:31:00 -0600

>I wrote:
>>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."

Nic Herriges replies:
>
>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.

---

OK, I admit it, my question was rhetorical. There is no question that many statutes expressly provide only default rules. But I had never been under the impression that copyright was one of those statutes. You may be right that most transactions don't have contracts attached (buying books at a store, etc). But I suspect we are moving into a world in which it has become much easier to attach such contracts (for example, in your .sig). If shrinkwrap licenses are enough to rewrite copyright law as you please, then I think we will find that in the near future copyright will become all but irrelevant, replaced by form contracts drafted by vendors. Certainly the current approach of the UCC reform committee, to expressly validate shrinkwrap licenses that change copyright law, would help this process along.

Maybe we shouldn't be bothered by the coming obsolescence of copyright. But I for one would like a good, long look at what will replace it.

Mark Lemley
Assistant Professor
University of Texas School of Law
mlemley[_at_]mail.law.utexas.edu Received on Tue Dec 06 1994 - 16:49:30 GMT