Copyright Survives

When I teach ProCD in my internet law class, I make two primary points. First, the case can't possible be right. Judge Easterbrook mangles UCC law and how the battle of the forms works. Second, the case can't possibly be wrong: companies have to be able to price discriminate by restricting usage of information that is unprotected by copyright but expensive to gather. Without this ability, either the price of such information products will be higher, or they may not be created at all.

Many people disagree with me on the second point. In their view, the goal of copyright law is to regulate not just what should be protected, but to ensure that what is not protected stays in the public domain, no matter what. It is against this backdrop that Guy Rub (Ohio State) gives us his article forthcoming in the Virginia Law Review: Copyright Survives: Rethinking the Copyright-Contracts Conflict, now available on SSRN. The abstract is here:

Twenty years ago, copyright died. More accurately, it was murdered. In 1996, in ProCD v. Zeidenberg, Judge Easterbrook, writing for the Seventh Circuit, held that a contract that restricted the use of factual information was not preempted by the Copyright Act and therefore enforceable. The reaction among copyright scholars was swift and passionate. In dozens of articles and books, spreading over two decades, scholars cautioned that if the ProCD approach is broadly adopted, the results would be dire. Through contracts, the rights of copyright owners would run amok, expand, and in doing so they would invade, shrink, and possibly destroy the public domain. Contracts, we were repeatedly warned throughout the years, would kill copyright law.

This Article challenges this scholarly consensus by studying the 288 court opinions that have dealt with the copyright-contract conflict over the past four decades. This examination reveals surprising facts: Notwithstanding the scholars’ warnings, ProCD’s approach won the day and was embraced by most federal circuit courts. However, the doomsday scenarios scholars warned against did not materialize. The overall effect of contracts on the size and scope of the public domain, or over copyright law as a whole, seems minimal. The Article explains this discrepancy and shows that contracts are an ineffective tool to control information because they are too weak of a device to threaten or replace copyright law. Indeed, to paraphrase Mark Twain, the reports of the death of copyright were greatly exaggerated.

The Article concludes by placing this analysis in context, as part of a broader ongoing discussion on the desirability and enforceability of standard-form agreements.

I really love this article. I think that resolving questions of how we should balance free ideas, access controls, and freedom of contract is incredibly difficult, and I have yet to see a good solution. I certainly don't have one myself (yet). I have an article I've been working on since I was a fellow - the empty shell has a nice title, and little text. This article may inspire me to take another look at it. That said, I do have a few comments, after the jump.

First, I think the framing is interesting. The "death of copyright" motif - which is used more for a great abstract than the actual article and didn't originate with Rub - reveals a lot about differing views of copyright law. If you said to me, "Copyright law is dead," my first thought would be that content owners would be very unhappy, that we might see reduced incentives (if you believe in such a thing), that fair use is expanding, etc. So, to equate the death of copyright with a shrinking public domain reveals a very different starting point - one in which copyright's primary role is to regulate the public domain rather than to provide protection for expressive works. Now, the reality is that it does both, but priors will have an effect on how one considers cases like ProCD.

Second, the article's examination of all preemption cases is thorough and admirable. It's really impressive. And, importantly, the article considers whether focusing on litigated cases properly captures the in terrorem effects of contract provisions that dampen the use of ideas but never lead to litigation. The article concludes not, but I suspect that reasonable minds could differ on this.

Third, the article admittedly punts on one of the bigger issues - reverse engineering. It notes that only two anti-reverse engineering contracts were considered, and both were upheld (that is, not preempted). One case, Bowers v. Baystate, has facts sympathetic to the content owner. The other, Davidson, has facts (in my view) sympathetic to the defendants. It is the conflict between these two cases that first led me to think I should write an article about this, but I'm still working out how to get to the right answer (or even what the right answer is) in a principled way. And so, sadly, is this article. In other words, even if you agree with everything in this paper (and I agree with most of it), it's not the end of the story.

Fourth, the concern about agreements is not limited to copyright. The article does a good job of point that out, asking why limitations in contracts that affect copyright rights should somehow be different from other limitations in contracts that affect other important rights, like arbitration. The article asks: why should reverse engineering be given a preferred spot over anti-class arbitration provisions that conflict with class action rules? Even with respect to information products, I consider very specific questions in trade secrets in my essay Hidden in Plain Sight, which discusses whether mass market forms can/should/are used to keep information "secret" despite broad distribution.

Finally, the sum of all this is a question whether preemption is the right way to go. Are there better ways? Contractual? Antitrust? I don't know, but I know folks have worked on different thoughts on this (e.g. Radin's Boilerplate).