Re: More on NBA v. Motorola

On Tue., Feb. 18, 1997, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> Bob Penn <thresshold[_at_]aol.com> writes:
> >
> > ProCD did indeed involve phone books on CDRom. Because under Feist
> > phonebooks on CD are no more copyrightable than are phonebooks in book
> > form, the CD proprietor utilized a shrink wrap license that purported
> > to prohibit purchasers of the CD from copying its contents. The
> > district court held that the shrink wrap license was unenforceable
> > because copyright law preempts the enforcement of contracts which in
> > essence provide rights equivalent to those undercopyright law. The
> > court of appeals [rightly so IMHO] reversed and found, as have the
> > majority of courts dealing with this issue, that copyright law cannot
> > preempt contract law. I personally do not see how the court could have
> > reached any other conclusion, but I note Dennis Karjala's recent post
> > concerning this issue and I look forward to his article expressing the
> > contrary position.
> >
> **************
>
> There is no question that copyright law can and does preempt contract
> law in some cases. For example, try writing a contract that disclaims
> the original author's right of reversion in section 203, or one that
> says "the parties agree this is a work for hire" when the statute says
> it is not. The only question, it seems to me, is whether Feist is one
> of those rules that you can contract around, or one that you cannot
> contract around. There is certainly room for disagreement on this
> point . . .

I agree with that, Mark. But the fact that the Copyright Act preempts claims based on contract terms that flatly contradict express requirements of the Act is one thing. The argument that often follows, that the Act should therefore preempt claims based on contract terms that are perceived to undermine some policy implicit in the Act is quite different, and in my mind a non sequitur.

Christopher Pesce
<chrisp[_at_]corbis.com> Received on Wed Feb 19 1997 - 18:10:57 GMT