Re: Electronic databases, contracts, and preemption

> The preemption of contract law discussion made me think of one
> very important real factual situation.
>
> As I read my LEXIS and WESTLAW contracts, they would prevent me
> from downloading whole cases and posting them to discussion lists,
> even if I make sure I only post the public domain material. And I
> try to take this fairly seriously.
>
> Should these contracts be preempted? If I understand Dennis
> Karjala's proposal, the material involved here would fall on the
> published side of the line, so the contract might indeed be
> preemptable. (I welcome correction if I've inadvertently
> misrepresented Dennis's views.) Is that right? Somehow it seems
> troublesome to me.
>
>
> -- Eugene Volokh, UCLA Law
> <volokh[_at_]law.ucla.edu>

Why does it seem troublesome? One could just as well argue that West has so mingled its expressions with the public domain opitions that it has lost its copyright. A claim that West has some prtectable interest in preventing you from reclaiming the public domain materials seems to carry with it some thought that West has some kind of a "sweat of the brow" claim to the public materials or the delivery of them. The arguement that West should be allowed to enforce this contract is less tenable if you extend it to a jurisdiction in which the West Reporter is the only published version of the state reports, as it is in many jurisdictions. If you allowed West to say that agreeing to use their books meant agreeing not to reclaim the court opinions from those books, then you have effectively given West copyright over the court opinions.

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Buford C. Terrell                       1303 San Jacinto Street
Professor of Law                              Houston, TX 77002
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terrell[_at_]stcl.edu                            fax   (713)646-1766