Re: More on NBA v. Motorola

Christopher Pesce <chrisp[_at_]corbis.com> wrote:
>
> 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.
>

Fair enough. But which category does ProCD fall into? At the least, it seems arguable to me that protecting something the Supreme Court has declared within the subject matter of copyright, but constitutionally incapable of protection, contradicts the copyright laws. [I certainly can see the argument for the other side, too].

What would you do with a shrinkwrap license provision that said "licensee hereby agrees not to make fair use of this work"?

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

For information on the Intellectual Property program at UT, see http://www.utexas.edu/law/intelprop/ Received on Mon Feb 24 1997 - 17:57:31 GMT