Re: NBA v. Motorola

John Noble <jnoble[_at_]dgs.dgsys.com> writes:
>
> Also, as I understand it Dennis would preempt those "online" web site
> agreements because they don't satisfy the "face-to-face negotiation"
> requirement, but surely he uses the term "face-to-face" loosely, and
> would not automatically preempt any contract that was "negotiated"
> via email (or telephone). What then do you do with the web site that
> advises: "Here is our proposed agreement. You may agree to it by
> clicking on 'OK', and download the software now, or you may feel free
> to propose alternative terms, and we'll forward it to our lawyer and
> get back to you (eventually)." I don't mean to be flip. My point is
> that any bright line you might attempt to draw can be pretty readily
> circumvented with a little imagination, and (I'm afraid) some cost to
> commercial efficiency.

I apologize that I keep referring to my actual article, but the argument is not easy to summarize on a discussion list. My basic point, though, is that no matter how difficult it to draw the line, or how murky the line is once drawn, we MUST draw the line. Moreover, the line MUST have something to do with the distinction between "published" (which was the standard for federal copyright protection until 1978) and "unpublished" (which governed the class of works protected, if at all, by state law prior to 1978.

It is clear that contracts as to the latter (unpublished works) could not interfere with federal copyright rights prior to 1978, and no one (I believe) is asserting that anything has changed in this regard as a result of their incorporation into federal copyright in 1978. If I am also correct in saying that a shrinkwrap license purporting to extend federal copyright rights in a published work (by protecting ideas, e.g.) would have been summarily held unenforceable prior to 1978, on the ground that such a contractual term stands as an obstacle to the accomplishment of the full purposes of Congress, then either that conclusion must remain correct today or we must attribute to Congress an intended massive change in copyright philosophy without a single word of explanation.

So, some class of works (at least roughly associated with those previously falling outside federal copyright as "unpublished") may be the subject of at least some sort of contractual restrictions on what would otherwise be the users' rights of copyright. Some other class of works (roughly associated with those falling within federal copyright as "published") are subject to the traditional federal tradeoffs between owners' and users' rights, including idea/expression, fact/expression, and fair use, and these tradeoffs cannot be varied even by a state-law-enforceable "contract." To deny the existence of a line between two classes of this general type requires either that unpublished works cannot be the subject of contractual limitations on users' rights as a condition to access (which I believe no one accepts as correct) or that the federal tradeoffs even for traditional works like published books and magazines are now purely optional in the copyright owner, through the simple and purely formal device of attaching a "license" to the cover. My only point is that THAT cannot be right, either. Ergo, we must draw the line. Once we agree on that, we can get to work trying to define that line as best we can. It won't be the first time that a clash in policy goals forces us to draw a line, with all the difficulties that necessarily attend that process and all the uncertainty it creates around the border.

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 Thu Feb 27 1997 - 19:03:10 GMT