Stephen Moignard distributed a copy of a proposed Web site license and copyright notice, and asked whether it is enforceable. Steve Marquardt commented that "publishers do not establish or adjudicate copyright law -- that is the province of Congress and the courts. Whatever a publisher says on the verso of a title page, or on a Web page, is wholly secondary and subordinate to established statutes and decisions regarding fair use, etc."
To the contrary, two parties may contractually agree, by means of a license, to protections broader, narrower, or otherwise different from those afforded under copyright law. The question is whether Mr. Moignard's legal notice would be enforceable as a license binding the user of his Web site. If it would, then it doesn't matter whether it is consistent with copyright law or not. Without knowing how, when, or where the notice would appear, or what the user would have to do to indicate assent, it would be hard to venture a guess as to whether it would constitute an enforceable license. Even WITH that additional information, it would be a touch call, considering by analogy the way courts have differed in their treatment of the enforceability of shrinkwrap licenses.
Bob Cumbow
<cumbr[_at_]perkinscoie.com>
Received on Thu Oct 23 1997 - 22:05:35 GMT
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