Re: "Thumbnails" of scanned pages from c

>Dennis S. Karjala says:
>>
>> I simply reiterate the view that it shouldn't make any difference
>> whether the conditions of the shrinkwrap license are brought to the
>> attention of the purchaser. The copyright balances are drawn for the
>> benefit of society as a whole. As to published works, we cannot allow
>> a formal "contract" device to override the policies underlying the
>> idea/expression distinction, the first-sale doctrine, fair use, and the
>> many other limitations on copyright owners' rights. If we could, and
>> assuming a similar device could be used for functional works (the
>> subject matter of patent), both copyright and patent law would become
>> mere matters of contract. Is that all Congress thought it was doing in
>> debating the 1976 Act for 20 years?

Bruce Hayden responds:
>
> One reason that I disagree with your analysis is that in my mind, the
> real impact of shrinkwrap terms go way beyond copyright - indeed, the
> affect on copyright is neglible given everything else going on:
>
> - prohibitions on reverse engineering - and thus potentially opening
> someone up to trade secret actions for figuring out how mass marketed
> software works (this appears to be part of the basis for the award of
> trade secret damages to MS against Stac).
>
> - waiver of any meaninful warranties
>

It is, of course, possible to agree with both of these positions. For instance, I don't think shrinkwrap license terms as they are currently written ought to be effective as a matter of contract law, regardless of their subject matter. But I can imagine ways to make such things into enforceable contract terms. The question then becomes whether, because of the subject matter, there is some reason to preempt (or otherwise refuse to enforce) the contract term. There, I agree with Dennis Karjala to some extent -- there are some copyright policies that we ought not allow parties to a contract to override, since they affect numerous people besides the contracting parties. Other policies, though, you can change by contract -- such as the first sale doctrine. The preemption analysis is simply not as "clean" as the refusal to enforce shrinkwrap license terms at all.

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu Received on Tue Oct 24 1995 - 19:26:42 GMT