Re: "Thumbnails" of scanned pages from c

Bob Rotstein writes:
>
> 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.

    According to the House Report, 109(a) "does not mean that conditions on future disposition of copies or phonorecords, imposed by a contract between their buyer and seller, would be unenforceable between the parties as a breach of contract, but it does mean that they could not be enforced by an action for infringement of copyright."

    Of course, state contract law might make shrink-wrap contracts unenforceable, but if it does enforce them, I don't see how they'd be preempted. (I should say that I do *not* like resorting to legislative history, but I know that courts often do this in the copyright context.)

• Eugene Volokh, UCLA Law <volokh[_at_]law.ucla.edu>