Re: "Thumbnails" of scanned pages from c

From: Robert H. Rotstein <rots[_at_]primenet.com>
Date: Fri, 27 Oct 1995 13:48:05 -0700 (PDT)

---

>
> >>Dennis S. Karjala wrote:
> >>>
> >>> 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?

John Noble wrote:
[Cut]
>
> I understand the argument that shrinkwrap licenses are or may be invalid
> as contracts of adhesion, though I think that people mistakenly believe
> that any unilateral contract imposed without opportunity for bargaining
> is perforce invalid. But your position seems to be much more radical.
> You are contending, aren't you, that I, the customer, cannot opt for the
> fewer/more limited rights of a licensee at a price presumably less than
> I would have to pay for the rights attending ownership under the Copyright
> Act, because that is all that the copyright owner is permitted to sell.

There's a middle ground. State law (most prominently, California and New York) allows parties to contract for use of ideas that otherwise are not protected by copyright, notwithstanding the idea/expression dichotomy. Indeed, causes of action based on express and implied-in-fact contracts are explictly permitted according to the terms of section 301 of the Copyright Act.

The problem with shrink-wrap licenses is that a "purchase" of computer software seems just that -- a purchase. As such, it seems that the transaction should be subject to the first sale doctrine. I wonder if there has been any consideration whether the first sale doctrine in the Copyright Act preempts state law enforcement of shrink wrap licenses, since section 301 would not seem to apply.

Bob Rotstein
rots[_at_]primenet.com Received on Fri Oct 27 1995 - 21:03:04 GMT