Re: More on NBA v. Motorola

Dan Burk on anticompetitive contracts:
>
> Your suggestion is intriguing, however, because one might envision
> situations where the *contract* rather than the copyright becomes the
> problem. What might happen is that *if* we think a ProCD type
> contract is enforceable -- and I don't, Easterbrook's analysis
> notwithstanding -- then the combination of copyright exclusive rights
> and contract rights could turn a copyright that *wasn't*
> anticompetitive into something that is. In which case, I suppose the
> contract is void as against public policy, and Easterbrook is wrong
> again. :)
>

In fact, in the rare cases in which the "copyright misuse" doctrine has been applied, it has normally been to bar enforcement of such contractual provisions. See Lasercomb America v. Reynolds (4th Cir. 1990), invalidating such a contractual provision on misuse grounds; cf. DSC v. DGI (5th Cir. 1996), where the court held the attempt to bar RAM copying to be copyright misuse.

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 Tue Feb 25 1997 - 15:18:17 GMT