Re: Contracts and copyright

Eugene Volokh writes:
>
> Forgive me for rehashing what was already dicussed in the
>preemption thread some time ago, but I thought we'd agreed that one
>*can* contract around at least the first sale doctrine. The
>legislative history seemed pretty definite on that -- the contract is
>enforceable against those in privity.

True, true -- although even there the leg. hist. is pretty clear that your remedies are for breach of contract, not copyright infringement. There are a couple of other areas where "contracting around" is explicitly permitted. I think we were all referring to the *rest* of copyright law, which does not (at least explicitly) permit contractual modification. [In this regard, I note that Mary Brandt Jensen makes a good argument that Congress saying you can contract around certain sections implies that they did not intend you to be able to contract around other sections].

Mark Lemley
Assistant Professor
University of Texas School of Law
mlemley[_at_]mail.law.utexas.edu Received on Wed Dec 07 1994 - 19:37:33 GMT