Publication Date
1-1-2007
Document Type
Article
Organizational Units
Sturm College of Law
Keywords
Clickwrap, Adhesion contracts, Super copyright provision
Abstract
Adhesion contracts, many of them now in clickwrap or browsewrap form, proliferate and govern nearly every commercial transaction and most of the ways in which the modern consumer interacts with the world. Virtually every one of these contracts contains a limitation on copyright's fair use doctrine. These widespread and non-negotiated restrictions on fair use ("super-copyright" provisions) conflict with and stand as an obstacle to the achievement of federal purposes, but most courts and many commentators have rejected preemption as the appropriate doctrinal tool for addressing challenges to these provisions. This Article argues that enforcement of super-copyright provisions ought to be preempted. Preemption is the doctrine designed to address the interaction between state law and federal policy; other doctrinal approaches, such as state contract defenses and formation doctrines, do not do the work necessary to mediate between federal and state interests. In addition, preemption in this context is a way of acknowledging and emphasizing the proper institutional structure of copyright policymaking. By permitting copyright owners to contract around fair use, courts have improperly abdicated their fair use policymaking role while at the same time arrogating to themselves policymaking regarding contracting around fair use, which is a task that should be placed at Congress' door.
Publication Statement
Copyright held by the authors. User is responsible for all copyright compliance.
Originally published as Viva R. Moffat, Super-Copyright: Contracts, Preemption, and the Structure of Copyright Policymaking, 41 U.C. Davis L. Rev. 45 (2007).
Recommended Citation
Viva R. Moffat, Super-Copyright: Contracts, Preemption, and the Structure of Copyright Policymaking, 41 U.C. Davis L. Rev. 45 (2007).