Re: NBA v. Motorola

Lolly Gasaway writes:
>
> The preemption discussion between Terry and Dennis is
> very interesting. If Dennis is correct, what do you make of the
> section 108(f)(4) statement that for a library, nothing affects
> the right of fair use or any contractual obligation entered into
> by the library when it obtained a copy of work in its
> collection?
>
> I think this says that libraries can sign away rights
> that the copyright law would otherwise provide.

I do not believe that section 108(f)(4) affects the preemption analysis. It says that the noninfringing uses section 108 otherwise permits libraries to engage in are not affected by "contractual obligations assumed" by the library. The question remains, what is a "contractual obligation" within the meaning of this section? I assert that this is a matter of federal law, so a state cannot, for example, adopt a statute simply declaring certain terms (e.g. limiting reverse engineering of programs) to be "contractual" in nature and deeming such terms to be a part of every purchase/sale transaction for a copyright-protected work. It is not the state label that is determinative but rather whether the nature of the claim is such that it is qualitatively distinguishable from a copyright claim (section 301) and does not interfere with the accomplishment of the purposes of the federal statute (Supremacy Clause). Face-to-face negotiated contracts will usually pass these tests. Shrinkwrap and most on-line licenses, I believe, will not.

Dennis S. Karjala
Professor of Law
Arizona State University
Tempe, Arizona 85287
602-965-4010
602-965-2427 (fax)
dennis.karjala[_at_]asu.edu
Visit the "Opposing Copyright Extension" web page at <http://www.public.asu.edu/~dkarjala> Received on Mon Feb 24 1997 - 16:46:15 GMT