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The Tabberone™ Archives These articles concern what we consider major trademark and copyright issues. They are usually reproduced with the original source referenced. Bear in mind, these articles are copyrighted and commercial use without permission of the authors may be considered infringement. The intended use here is educational, commentary and non-commercial. The reason they are reproduced in the Tabberone™ Archives, as opposed to just providing a link, is because links disappear and pages are removed. That presents a messy confirmation process that is annoying to the browser (you) but also presents a credibility issue. We do not claim any rights in these pieces. Do not regard the absence of a copyright statement or © to mean the article is not copyrighted. Some sites do not have a copyright statement. When an article or a comment is posted on the internet by the copyright owner, the owner is seeking a world-wide, 24/7 audience; sometimes for a limited amount of time, sometimes indefinitely. In essence, an internet posting intentionally relinquishes one's copyright for exclusivity because the owner has posted it on the internet to been seen by everyone, everywhere. The Tabberone™ Archives non-commercial duplication of the posting is simply a continuance of the original wishes of the copyright owner. We post these articles for reference, for commentary and for confirmarion of our position. |
Source: papers.ssrn.com/sol3/papers.cfm?abstract_id=582402 May 9, 2008 |
Slaying the Leather-Winged Demons in the Night: Reforming Copyright Owner Contracting with Clickwrap Misuse
Abstract: Copyright misuse is an equitable defense based on a claim that the copyright owner has used the rights granted by the federal Copyright Act in a manner that is contrary to the public interest; this defense can be raised by an accused infringer that has not been affected by the alleged misuse. Recognizing a copyright misuse defense based on contract clauses that seek to avoid federal limitations on copyright rights has several advantages. First, an assertion of copyright misuse can be made in a case that does not involve a claim for breach of one of these clauses. Second, as an equitable doctrine, misuse is subject to interpretation and revision by the courts; no legislative action is necessary. Third, a successful misuse defense results in a refusal by the court to enforce the copyright until the misuse is "purged." Given the potential downside risk of contractual overreaching, a broader application of the misuse doctrine would, therefore, "chill" a copyright owner's impulse to overreach. This article proposes that courts recognize a rebuttable presumption of misuse when a copyright owners seek, by contract, to avoid the express statutory limitations on their rights. To rebut the presumption of misuse, a copyright owner would be required to prove that encouraging the type of contracting behavior at issue is not likely to lead to a reduction of the external benefits the Copyright Act seeks to ensure through the limitation the copyright owner is contractually attempting to avoid. Requiring the copyright owner to rebut the presumption of misuse appropriately places the burden on the party that engaged in the presumption-triggering activity, i.e., the drafting or negotiation of the contract containing the offending clause. Employing a rebuttable presumption would allow contracting around the statutory limitations on a copyright owner's rights only on a limited and truly bargained-for basis. Click here to read the entire article in pdf format (61 pages). |
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