Introduction
-
This section appears to work in conjunction with the section on alternatives to IP Regulation
-
Property, tort and contract may serve as:
-
Co-existing regimes (e.g. CR and right of publicity in the pictures of Glenn Gould)
-
Pure alternatives – e.g. pyramid of K-ual licensing agreements which effectively create a right that is good against the world, where one might not otherwise exist (e.g. an alphabetical database cannot be CRed but can it effectively be CRed via licensing arrangements?)
-
**There are tools that sit beside IP space or overlap with it
-
The relevant Q seems to be: What interests are we trying to protect and encourage and what governance tools might effectively accomplish desired ends w/o creating undesirable consequences? (e.g. protection of patients rights via fiduciary duty rather than propertization. The latter is dangerous and not necessary)
Property
Interface with Patent: Moore
Moore v. Regents of the University of California
Moore v. Regents of the University of California, [1990] Cal. S.C., CB I p. 24
Facts:
-
Moore had leukemia and had cells removed as part of the treatment. Moore had a unique T-cell structure.
-
These cells were taken by doctors who, without his permission, established a cell line from them and patented and sold it in a lucrative medical research scheme.
-
The plaintiff’s alleging (1) the breach of a physician’s disclosure obligations – his fiduciary duty (duty to act in best interest of another) and (2) conversion – the wrongful possession of another’s property as if it were his own as well (i.e. Moore claims he continued to own cells after removal) [tort of conversion requires a property right]
Issue: Breach of fiduciary duty? Property right in cells?
Held: Yes and no
Reasoning (class notes):
-
Panelli, J.: No property right. Rationale: chilling effect on scientific research. With every biological sample a researcher used, he would be purchasing a ticket in the litigation lottery. Fiduciary duty claim takes care of Moore’s rights as a patient.
-
Arabian, J., concurring: No property right. Morality argument. Commodification of the human body. If human body is going to be dealt with on the market, that is up to the legislature to decide. Plea for judicial restraint.
-
Broussard: why not property?
-
Monk: Property right. But for Moore’s t-cells, there would be no patent. He added an essential ingredient and thus should be allowed to share in the benefits. Propertization of cells will not be the “death-knell” of research. If the property rights are clear, those who want to do research will just have to pay for the cells, just as they currently pay for other raw materials**
|
**DL notes that there are plenty of IP academics who share this view (e.g. Siebrasse): if IP rights are defined precisely, people will be empowered to bargain. IP rights don’t hinder “progress”; they just force users of IP to get licenses, pay for the materials, etc.
Comments (DL):
-
BEWARE OF WHAT THE RESOURCE IS! – The cells? The patent?
-
Transformation of the resource via human intervention: There are two resources here – the cells (outside of commerce – not property) and the patent (property). Is the human intervention (i.e. intellectual additions to the cells) enough to create a property resource where there was none before? If we agree that the cells cannot be property, why will we allow the researchers to have intellectual property in the modified cells? Is addition of value enough? (i.e. Moore’s cells chilling in his body are of no value to anyone but him!)
-
Are there other tools that could be used to accomplish the same policy goals?
-
Protect patients’ rights fiduciary duty (found to be enough here)
-
Encourage research patent OR funding primary research in universities; fame, glory, nobel prizes. If pure science isn’t the subject matter of patent, why are there still “pure scientists”?
SH (an aside): implications of property rights can sell/license, good against the world, can pass down to heirs, can follow into the hands of one who misappropriates (e.g. Moore could share in profits from the patent)
Gould Estate v. Stoddart Publishing Co.
Gould Estate v. Stoddart Publishing Co. (1996) Gen. Div, page 657
Facts:
-
In 1956, Carroll, a reporter, interviewed Gould for an article in Weekend Magazine. He took about 400 pictures of him and copious accounts of their conversations
-
Gould died in 1982 and Carroll, who had acquired the copyright in the pictures, published a book about Gould which incorporated the photos and conversations.
-
Gould’s estate sued, claiming that use of the photos amounted to the tort of appropriation of personality.
Issue: (1) Did Gould have any proprietary rights in his image, likeness or personality which have been appropriated by the publication of the photos? (2) Does Gould estate have copyright in the oral conversations recorded by Carroll?
Held: (1) No (2) No
Ratio:
-
Court reviews Cdn case law and concludes that the tort of appropriation of personality is restricted to endorsement-type situations.
-
More broadly, in articulating this tort the court must be mindful of the public interest. What is this public interest? The court adopts the perspective of American courts which have held that the purpose of the portrayal should be examined to determine if it predominantly serves a social function valued by the protection of free speech. Freedom of expression considerations should animate Cdn courts in identifying the public interest and placing limits on the tort of appropriation of personality.
-
Court concludes that other courts have drawn a “Sales vs. Subject” distinction: Sales constitute commercial exploitation and invoke the tort of appropriation of personality (e.g. endorsement situations, posters and board games) – the essence of these activities is NOT the celebrity. Situations in which the celebrity is the actual subject of the work or enterprise would not be within the ambit of the tort (e.g. biographies, other books, plays and satirical skits). The subject of the activity is the celebrity and the work is an attempt to provide some insights about that celebrity.
-
In this case, the book provides insight to anyone interested in Gould. There is a public interest in knowing more about one of Canada’s musical geniuses. B/c of this public interest, the book therefore falls into the protected category.
-
Right of publicity survives the death of the individual: must be distinguished from the right of privacy [a personal right] – right of publicity is a form of intangible property, akin to copyright or patent. If there is any durational limit on this right, it has not yet expired [only 14 years have passed].
-
There is no copyright in the conversations btwn Gould and Carroll: Ptfs submit that CR subsists in spoken words pursuant to S. 5(1) CR Act. [S. 2 lectures address, speech and sermon]. Oral statements in a speech interview or conversation are not recognized as literary creations and do not attract CR protection. Too general and abstract to constitute a “work”. Would run counter to freedom of speech and press. Informal, casual, spontaneous interview is not the kind of discourse which the CR Act intended to protect.
Rule: Sales vs. Subject – Situations in which the celebrity is the subject of the work or enterprise (e.g. book) are not within ambit of the tort. Situations in which the celebrity’s identity is being used for another purpose (e.g. commercial gains – endorsements in particular) are w/in its ambit. About the person vs. using the person. [Underlying this distinction is court’s concern that the tort of misappropriation of personality be limited by the PUBLIC INTEREST, more specifically by freedom of expression and the public’s right to information and knowledge about notorious figures]
|
Gould Estate v. Stoddart Publishing, (1998) C.A.
[Finlayson]:
-
Can decide this case based on conventional principles relating to CR
-
Once it is established that Carroll owned the unrestricted CR n the photos and the written material, there is nothing else to decide.
-
CR can subsist in photo as an artistic work [S. 5(1) CA]. Owner of negatives is the owner of the CR in the photos and author of written material in book is the owner of CR in that written material. The subject matter of the photos and the written materials has no proprietary interest unless he or she had obtained an interest by express contract or implied agreement with the author [e.g. photos taken on commission for consideration]. The concept of approp of personality has no application here. Once Gould consented, w/o restriction, to be the subject-matter of a journalistic piece, he cannot assert any proprietary interest in the final product nor complain about any further reproduction of the photographs nor limit the author of the journalistic piece from writing further about him.
|
Comments (DL):
-
Transformation of rights: In this case, not transforming non-property to intellectual property but transforming object of property into object of intellectual property (one governance sphere to another). The intervention which effects the transformation in this case seems more legit – Carroll took the pictures with Gould’s permission
-
Co-existence of rights in one object: Though property is transferred to intellectual property, the straight “property” right (right of publicity) doesn’t disappear. One object (photo) two rights (CR, right of publicity) two governance regimes with different rules (IP, CML property)
Gould + Moore there are different ways of characterizing resources with social value – PROPERTY, NOT PROPERTY, INTELLECTUAL PROPERTY. Two regimes may concurrently regulate the same object or two different aspects of that object.
Entitlements and enforcement of entitlement
Calabresi & Melamed, “Property Rules, Liability Rules, and Inalienability…”
Guido Calabresi & Douglas Melamed, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1927) CB 1 page 49
-
approach Torts and Property from unified perspective
-
Articulate a concept of “entitlements” which are protected by property, liability, or inalienability rules
-
First order legal decision whom to entitle. Second order how to protect entitlements; whether an individual is allowed to sell or trade the entitlement
-
Property rules: entitlement protected by property rule to extent that someone who wishes to remove the entitlement from its holder must buy it from him in a voluntary transaction; value of entitlement agreed upon by seller. Collective decision as to who is to be given an initial entitlement but not as to the value of it.
-
Liability rule: entitlement protected by liability rule whenever someone may destroy the initial entitlement if he is willing to pay an objectively determined value for it. Transfer/destruction is allowed on the basis of a value determined by some organ of the state rather than by the parties themselves.
-
Inalienability rule: Transfer not permitted btwn a willing buyer and a willing seller
-
Article explores two Qs: (1) in what circumstances should we grant a particular entitlement? (2) In what circumstances should we decide to protect that entitlement by using a property, liability or inalienability rule?
-
PR LR IR [increasing degree of state intervention]
The Setting of Entitlements – i.e. reasons for deciding to “entitle people”
-
Economic Efficiency
-
Pareto optimality: choose set of entitlements which would lead to that allocation of resources which could not be improved (i.e. further change would no so improve the condition of those who gained by it that they could compensate those who lost from it and still be better off than before).
-
Distributional Goals
-
2 types of distributional concerns may affect choice of entitlements (a) distribution of wealth itself; (b) distribution of “merit goods” [such as education, clothes, bodily integrity]
-
-
Other Justice Reasons
Rules for Protecting and Regulating Entitlements
-
section will consider the circumstances in which society will employ property, liability and inalienability rules to solve situations of conflict
-
Property and Liability Rules
-
Why can’t society limit itself to property rules? [i.e. transfer of entitlements by voluntary transaction] Must consider advantages of either rules in terms of economic efficiency advantages and distributional advantages. Problems with property rules free-loading and holding out. People may not express their true valuations.
-
Where decentralized mkts might be very expensive or fail, where negotiation costs are very high [e.g. many parties stand to benefit or must pay], and where free-riding or hold-out problems use liability rules [collective valuation]
-
Examples of using liability rules eminent domain; accidents [cannot negotiate loss of arm or leg in advance b/c don’t know who will hit you/who you will hit – cannot identify the relevant transacting party]
-
Liability rules have their own problems e.g. the collective valuation [of my land which gov’t is expropriating for example] may over or under-shoot the true value.
-
Inalienable Entitlements
-
law not only decides who is to own something and what price is to be paid for it if it is taken or destroyed – also regulates its sale – e.g. prescribing conditions for a valid sale or forbidding sale altogether.
-
When should inalienability rules be used? [Look at efficiency and distributional reasons]:
-
Where a transaction would create significant externalities – costs to third parties
-
When external costs do not lend themselves to collective measurement which is acceptably objective and non-arbitrary [e.g. the cost of watching people being sold into slavery or selling body parts]
-
Self-paternalism
-
True paternalism – in some cases, state knows better than individual what will make him better off [e.g. prohibitions on a range of activities by minors]
-
When favoured by distributional goals [one group will gain from the prohibition; another will lose]. Giving weight to distributional rules clearly desirable where on efficiency grounds society is indifferent between an alienable and an inalienable entitlement and distributional goals favor one approach or the other.
SH: every right to do something is seen as an “entitlement” – e.g. right to pollute; right to be free from pollution; right to make noise; right to silence; right to some piece of land [to exclude others from land?]
|
Comments (DL):
Contract
-
To what extent will individuals be permitted to use contract (private ordering) to control/regulate intellectual products?
-
E.g. K for use of uncopyrightable database can creator restrict the kinds of uses to which it might be put? Can K effectively protect that which cannot be protected by CR? [K as a pure alternative]
-
E.g. K for sale of copyrighted information (software) can copyright “owner” restrict types of use which are permitted under copyright law (e.g. no criticism or review is allowed)? [K as a co-existing regime]
-
To what extent will courts allow Ks to be used to undermine the balance inherent in CR?
-
What are the justifications behind a choice to allow Ks to be used to regulate intellectual products? [economic efficiency?] What justifications are behind a choice to not allow such use? [public domain, economic efficiency – monopoly]
-
What are the solutions to dealing with the K-IP interface? Public interest unconscionability (Reichmann); competition law (Lametti)
-
Governance tools which come into play K, doctrine analogous to confidential information, competition law, copyright
ProCD Inc. v. Zeidenberg
Pro CD Inc. v. Zeidenberg (7th Cir. 1996), CB I page 66
Facts:
-
ProCD (ptf) has compiled info from 3000 phonebooks into a computer database, and sells it on CDs [database probably not CRable]. Was created at considerable cost - $10 million – and costs a lot to maintain. Sold at two prices – consumer use and commercial use [price discrimination]
-
Every box containing consumer product declares that the software comes with restrictions stated in enclosed license. That license [appears in manual and on a user’s screen every time software runs] limits use of the application program and listings to non-commercial purposes.
-
Dft bought consumer copy, put it on Internet and sold use to users for < cost of software.
-
ProCD sought injunction.
-
District court held: no K b/c licenses are in box instead of printed on outside. Even if K, federal law preemption forbids enforcement.
Issue:
Must buyers of computer software obey the terms of the shrinkwrap licenses?
Held: Yes – shrinkwrap licenses are enforceable Ks.
Ratio:
-
Transactions in which exchange of $ precedes the communication of detailed terms are common [e.g. airline ticket]. If district court’s conclusion is correct, terms of airline ticket purchased over the phone would be irrelevant. Also, warranties accompanying consumer goods [i.e. inside box] would be unenforceable [no state regards them as so being!].
-
UCC does countenance “money now-terms later”. ProCD proposed a K that a buyer would accept by using the software after having an opportunity to read the license [splashed on the screen] at leisure. This Zeidenberg did. If buyer thinks that terms of license make the SW less valuable than purchase price, he can return the SW. [UCC permits K of adhesion - …quote from UCC]
-
Copyright pre-emption: S. of federal CR Act preempts rights under state law that are equivalent to any of the exclusive rights w/in the general scope of CR. Rights created by K are not equivalent to any of the exclusive rights w/in the general scope of CR. CR is a right against the world [i.e. exclusive right]. Ks only affect their parties – strangers may do as they please. Someone who found a copy of the SW on the street would not be affected by the shrinkwrap license [SH: even if they put it in their computer and hit “I agree”?]. Contracts for trade secrets [e.g. agreement to keep customer list confidential] and promises to pay for intellectual property may be enforced, even though federal law offers no protection against third-party uses of that property.
-
Enforcement of this K will not w/draw anything from the public domain everyone remains free to copy and disseminate all 3,000 telephone books that have been incorporated into the database.
|
POINT: A K is used to regulate the use of an information product which could not be the subject of copyright protection. Judge claims that rights created by K do not undermine balance struck by federal copyright because Ks do not create rights against the world.
|
Comments (DL):
-
Court sanctions the use of K to create an IP right that is good against the world, even though CR law itself might not confer such a right. Why a right against the world? Third parties who access the information online are not party to the K, and thus right is not good against them. However, if all those who agree to the K abide by its terms, no one else will be able to get hold of the information. The right is thus, in effect, against the world. Information which, under the CR balance, belongs in the public domain, is withdrawn from the public domain.
-
What justifications are at play here?
-
Enforce the K: reward ProCD’s labour – but Feist rejected the SOB doctrine; economic efficiency (possibility of creating K-ual rights = incentive to create informational products that could not be the subject of IP rights)
-
Don’t enforce the K: public domain is essential to progress of arts and sciences; such Ks hinder the growth of the public domain and thus hinder progress; economic efficiency – no one should have a monopoly on facts; preservation of competition (?)
-
Enforcing the K undermines the legislated CR “balance” by creating an IP right w/o the restrictions (1) could be perpetual (not limited in time); (2) no fair use possible w/o access; (3) Facts and ideas are not copyrightable.
-
Note that the database at issue here might get CR protection but judge doesn’t deal with that. However, DL suggests that even had Z merely extracted information and put on web in different format, he probably would have been in breach of the license (even though such info clearly in public domain).
AG New York v. Network Associates (McAfee Software)
Facts:
-
McAfee is a popular anti-virus/firewall software
-
A clause in the software’s shrinkwrap license provides that customers are prohibited form disclosing the results of any benchmark test absent written approval and from publishing review of the product absent prior consent.
DL: Criticism and review is allowed in U.S. and Canada. Can we allow a K to circumvent the standard balance that is enunciated in the CR Act?
Petition of AG:
-
Restrictive covenants in License Agreements are illegal and invalid where they impose restrictions that go further than necessary to protect a licensor’s trade secrets, goodwill or proprietary or confidential information.
-
The clause at issue serves no legitimate business interests of McAfee – it protects neither confidences nor IP. (Trade secrets: is marketed to thousands annually – how can it possibly be a protectible trade secret?) (IP: CR law provides no legitimate basis for this clause; the fair use doctrine of CR law squarely protects product reviews). The clause chills free speech. There is a public interest in having the public be allowed to communicate and learn about products they own and operate, particularly products such as these which purport to protect against viruses, etc.
|
Nimmer, “Breaking Barriers: The Relation between Contract and Intellectual Property”
Raymond T. Nimmer, “Breaking Barriers: The Relation between Contract and Intellectual Property” (1998), CB I page 73
-
Politicians argue that by bringing contract to the context of information transactions, contracts will be used to stifle free speech or to block access to materials that are otherwise in the public domain. The fundamental premise is of this view is flawed: K & IP law have always co-existed peacefully and in interaction between mutually supportive fields.
-
“When one speaks about an existing balance in the property rights sector, it is futile to focus solely on the statutory provisions of the copyright, patent or trademark laws. One must, of necessity, understand and incorporate into the analysis the fact that the policy choice has always assumed that property rights are routinely transferred, waived, released, and licensed. Contracts provide the means for the development and commercial exploitation of information assets.” The underlying property rights are often relatively unimportant in the bargaining process. They tend to be treated as ‘default rules;’ those rules that state a legal position that exists between the contracting parties unless the parties otherwise agree. Contract law provides other default rules.
The relationship/ symbiotic conjunction of contract and property law
-
All of the relationships and distribution choices involved in commercialization of information assets involve contracts. The second method through which information and information assets are created and exploited involves situations in which the information if given away and any rights in it relinquished in whole or in part (non-contractual, open forum use of information: involves giving away information and a willingness not to assert rights, at least to some extent under some conditions).
-
Commercialization use (e.g. contracting for) informational assets is one of two primary means by which information is distributed. It represents that portion of the matrix that yields financial and similar incentives for the creation of new, and the distribution of existing, information assets. In that sense, the so-called IP bargain does not exist in the absence of contract law and practice.
-
How contract and property interrelate: the 2 bodies of law differ in how they regulate a party’s conduct; the impact of a property right in a marketplace shaped by K’al relationships is most often indirect, with the rules of property being filtered and adapted through contractual and other relationships; in this marketplace setting, IP law provides ‘default rules’ for K’al relationships. These are default rules in that by their own terms, the effect of the rule can ordinarily be altered by contract.
-
Contract Law is a party choice regime, emphasizing with few exceptions the ability of the parties to define their own relationship. In contrast, IP law (with the possible exception of trade secret law) is a vested rights regime. It defines the relationship of persons to an identified corpus of information in the absence of a contractual relationship altering that established or vested right.
-
K law does not mandate outcomes in a contract relationship. It has three primary functions: (a) it established when an agreement becomes enforceable in law between the parties; (b) it provides background or default rules which indicate what the terms of the relationship are in the event that the parties do not otherwise agree; and, (c) in limited situations, it provides that particular terms may be unenforceable on the grounds for example that the term is unconscionable.
-
K law relies on the premise that parties, rather than laws, create (or decline to create) a relationship. Negotiation over the terms seldom occurs in either a mass market or a commercial marketplace. One party (the vendor or the purchaser) proposes terms and the other party assents or refuses. (ex. DuPont offers cleaning product to janitorial company at specific price with disclaimer of warranties. If janitorial company is willing to purchase the product, the terms are fully enforceable.)
-
W/ few exceptions, standard form contract terms are enforceable (consistent w/ K theory). The decision to market (or offer to purchase) is the vendor’s and in the seller-dominant scenario, the buyer chooses to accept the product and terms or to reject them and purchase something else or nothing at all. The phrase most commonly associated with standard form contracts is “contract of adhesion”. These are routinely enforced.
-
A common but not completely accurate image of property or vested rights law is that the rules define a party’s relationship to a corpus (the “property”) in terms independent of any relationship between the rights owner and a third party. These form, in effect, a starting point for fashioning the transaction.
-
Crt in Bonito Boats Inc. v. Thunder Craft Boats Inc. invalidated a state law on grounds of pre-emption. The law purported to grant the distributor of boats a right to prevent others from duplicating the design of the boat hull through use of a particular technology. The Court argued that this state law purported to create rights that federal copyright and patent law denied. The underlying factual premise was that there was no contractual or other relationship between the original designer-manufacturer and the person duplicating the hull design. In effect the state law created an enforceable right in the absence of a relationship that federal law denied.
-
Limited role of property interests in determining the contours of contractual relationships.
-
From a K law standpoint, setting out background principles is the primary function of property law. The CR Act recognizes that the copyright owner can separately transfer (or withhold) any of the exclusive rights. As a result, a contract (“license”) that gives the grantee the rights to reproduce and distribute copies does not give the grantee a license to use the other exclusive rights held by the copyright owner (e.g. the rights of public performance or display or to make derivative works from the original).
Class Notes (Gold summary):
Nimmer takes a slightly different approach as compared to Easterbrook J. in ProCD. He does not tell us that property is irrelevant; rather, that the only way IP rights work is by contracting them through licensing or by selling them altogether. Contract law is what is going to define what can and cannot be done in IP space to a much greater degree than property law. His view is that property sets out a starting point, but contract fills up IP space. He would praise Easterbrook J. for making it easier to have L’ing agreements.
| Reichman & Franklin, “Privately Legislated Intellectual Property Rights”
J.H. Reichman & Johnathan A. Franklin, “Privately Legislated Intellectual Property Rights: Reconciling Freedom of K with Public Good Uses of Information” (1999), CB I page 81
Authors address issue of how courts should deal with attempts of private parties to use Ks of adhesion to circumvent the balance struck by federal copyright law. Their focus is primarily on “digitized information goods” including software and databases – the relevant balance is thus (1) the incentive to invest vs. (2a) opportunities to compete and (2b) broad social needs such as education, freedom of speech, tech innovation, etc. They suggest that their proposed “public interest unconscionability doctrine” will be more effective than federal pre-emption doctrine or “public policy” in K. They outline the parameters of the test courts should use [open-ended and flexible] noting that the standard should be stricter where the contract is not negotiated [K of adhesion] than where K is “affirmatively negotiated” by the parties.
-
Thesis: Non-negotiable “shrinkwrap” or “click” licenses are a mechanism for minimizing transaction costs and fostering economic efficiency. However, any model of K formation not driven by the traditional norms of mutual assent requires specially formulated doctrinal tools to avoid undermining long-established public good uses of information for such purposes as education and research, technical innovation, free speech, and the preservation of competition. Routine validation of non-negotiable constraints on users convert std form licenses of digitized information goods into functional equivalents of privately legislated IP rights. Firms possessing any degree of market power could alter control, access to, and use of digitized information by means of adhesion contracts that alter or ignore the balance between incentives to create and free competition [as codified in CR law].
-
Any rules must take account of the dual nature of information it is a valuable commodity and the foundation of knowledge in the information economy.
-
Under normal circumstances, “unbundled information” is not protected – it is in public domain b/c there is a public interest in ensuring its availability for the progress of education, science and research, for freedom of speech and for the development of new, value-adding information goods. Where not protected, entrepreneurs rely on contract, actual secrecy and on trade secret laws (or laws of confidential information).
-
Even protected works are eventually relegated to the public domain – b/c not protected perpetually, public owns a “remainderman’s interest”
-
Databases are “commercially valuable bundles of information”. Selling point is completeness rather than engineering or design. Not protected by CR b/c lack attributes of creative achievement. Since producers can’t rely on CR to protect their investments against freeriding – must look for other mechanisms. Primary one used is the K. Networked environment has restored the power of the 2-party deal – b/c technology = all users can be privy. These Ks can impose terms which effectively mandate terms and conditions that override or disregard the constitutive elements of the state-imposed “cultural bargain”
-
Major issue then becomes – how to reconcile freedom of contract with the functional preservation of public good uses of information.
-
SH: What needs to be balanced? If people can freeride = no incentive to produce goods = don’t produce therefore need protection. Too much protection = info goods only available at considerable cost [not in public domain] – this hinders rather than furthers economic dvlpt and is anti-competitive.
-
“Click-on” and “shrinkwrap” licenses are an assault on the public domain.
-
R and F advocate public interest checks on standardized access contracts and on non-negotiable terms and conditions affecting users. They try to preserve the maximum degree of freedom of contract: (a) All mass-market contracts, non-negotiable access contracts, and contracts imposing non-negotiable restrictions on uses of computerized information goods must be made on fair and reasonable terms and conditions, with due regard for the public interest in education, science, research, technological innovation, freedom of speech, and the preservation of competition…Affirmatively negotiated terms falling into above-mentioned categories shall enjoy a presumption of validity.
-
This presumption may be rebutted whenever the cumulative harm to the public interest from use, including repeated use, of the term or terms in question seems likely to outweigh the private and public benefits flowing from the specific transaction.”
-
By allowing licensors wide leeway in the name of freedom of contract, we remain confident that market forces will generate an abundance of information goods and drive them to their highest values. However, mindlessly tolerating abuses of that freedom to contract under a model of formation that dispenses with the requirement of mutual assent could produce unprecedented anticompetitive effects detrimental to the public interest.
|
Summary (DL):
-
Copyright ought to be the governing tool for informational resources. If individuals try to regulate by K in such a way that undermines the balance struck by CR, they are stepping out of line
-
This view is not, however, acceptable in many jurisdictions where freedom of K is a strongly held virtue.
-
Reichman and Franklin suggest that both of these tools can work together – contracts should be enforceable provided they take into account the same balances as CR.
Share with your friends: |
