David Schwartz wrote:
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Like I said, it doesn't matter.
Correct.
If a copyright owner cannot use a shrinkwrap license to redefine
"fair use,"
Correct.
and the copyright owner doesn't posssess the exclusive right to my
"fair use,"
Correct.
then I can fairly use my copy of copyrighted material.
Sure, unless you agreed not to in exchange for something, and that
agreement and exchange were not unconscionable.
LOL! And pray tell given an actual example with copyright software.
I've cited a case where a much greater set of rights than just fair
use and first sale were taken away by a shrink wrap agreement, and the
agreement was *not* found unconscionable. Sorry, this is just so obvious
that it's hard to find places where it's explained in detail.
Let's start just with ProCD v. Zeidenberg. The court so clearly found
that copyright and contract do not overlap precisely because of the
requirement of agreement in a contract and the absence in copyright.
Sorry, these are going to be long:
--
But are rights created by contract
"equivalent to any of the exclusive rights within the
general scope of copyright"? Three courts of appeals
have answered "no." National Car Rental Systems, Inc. v.
Computer Associates International, Inc., 991 F.2d 426,
433 (8th Cir. 1993); Taquino v. Teledyne Monarch
Rubber, 893 F.2d 1488, 1501 (5th Cir. 1990); Acorn
Structures, Inc. v. Swantz, 846 F.2d 923, 926 (4th Cir.
1988). The district court disagreed [**21] with these
decisions, 908 F. Supp. at 658, but we think them sound.
Rights "equivalent to any of the exclusive rights within
the general scope of copyright" are rights established by
law--rights that restrict the options of persons who are
strangers to the author. Copyright law forbids
duplication, public performance, and so on, unless the
person wishing to copy or perform the work gets
permission; silence means a ban on copying. A copyright
is a right against the world. Contracts, by contrast,
generally affect only their parties; strangers may do as
they please, so contracts do not create "exclusive rights."
--
But whether a
particular license is generous or restrictive, a simple twoparty
contract is not "equivalent to any of the exclusive
rights within the general scope of copyright" and
therefore may be enforced.
--
National Car
Rental likewise recognizes the possibility that some
applications of the law of contract could interfere with
the attainment of national objectives and therefore come
within the domain of ß 301(a). But general enforcement
of shrinkwrap licenses of the kind before us does not
create such interference.
You have a driver's license. This gives you the privilege of
driving a car so long as you comply with the laws. But it's crazy to
argue that the driver's license law means you can drive a car you
leased from Hertz into Canada when the agreement you signed with
Hertz said you would keep the car in the United States. This is true
even though you have a fundamental right to International travel.
LOL! You don't have a fundamental right to International travel with a
car that isn't yours.
Exactly. When you got the car, you agreed to limit what would
otherwise be a right in exchange for the car. Similarly, when you consent
to a shrink wrap agreement or license, you agree to limit what would
otherwise be a right in exchange for the product.
You can contract away fundamental rights, so long as the contract
is not unconscionable. Such contracts are enforceable. Congress does
not have the power to impair contractual limitations. The
Constitution says so.
No it does not. The US Constitution says NO STATE has the the power to
impair contractual limitations.
James Madison wrote:
Bills of attainder, ex post facto laws, and laws impairing the obligation
of contracts, are contrary to the first principles of the social compact,
and to every principle of sound legislation. The two former are expressly
prohibited by the declarations prefixed to some of the State
constitutions, and all of them are prohibited by the spirit and scope of
these fundamental charters. Our own experience has taught us,
nevertheless, that additional fences against these dangers ought not to
be omitted.
Congress can limit the obligation of contracts in some ways. The
Federal bankrupcy laws are an example. However there simply is no Federal
legislative power to modify contracts or excuse people from their
obligations under them.
Quoting Jacob Hornberger, "The states were prohibited from impairing
the obligation of contracts and the federal government was not given a
power to impair contracts." For a good Supreme Court cite, see Pension
Benefit Guaranty Corporation v. R. A. Gray and Company, 467 US 717, 1984.
It says, essentially, that Federal laws impairing the obligation of
contracts are examined under a lesser level of scrutiny. The legal
grounds would be that laws impairing the right to contract are examined
under due process.
But simply put, what you are claiming is just preposterous. I defy
you to find one cite from an even remotely reputable source that suggests
that shrink wrap agreements can't create restrictions on use not found
under copyright. I defy you to find one cite that even suggests that fair
use is a "right" that a contract cannot limit.
I can find any number of cites to the contrary, though many are not
direct because the argument is so absurd.
From Henry Gabriel, professor of commercial law at Loyola, talking
about shrink wrap agreements on books, says that if you use a work "with
knowledge or having access to the terms of the licesne, you're probably
bound to the terms. That doesn't make all the terms enforeable. You still
might not be bound to terms that are unreasonable."
From a UT law school summary of ProCD v. Zeidenberg, "The ProCD court
found that shrinkwrap licenses were enforceable, including terms that may
take away important rights granted to software and database users under
federal copyright law."
From Kohrman, Jackson and Grantz, discussing Bowers v. Baystate
Technologies, the "court has held that the fair use exception may be
excluded by the terms of a shrink-wrap license" and "Given the facts of
this case, and applying Massachusetts law, the court held the shrink-wrap
agreement enforceable and Baystate's reverse engineering a violation of
its agreement with Bowers. The Copyright Act exception for fair use, the
court ruled, did not pre-empt the state law result."
And, "...a state can permit parties to contract away a fair use
defense or to agree not to engage in uses of copyrighted material that
are permitted by the copyright law, if the contract is freely
negotiated...A freely negotiated agreement represents the 'extra element'
that prevents preemption of a state law claim that would otherwise be
identical to the infringement claim barred by the fair use defense of
reverse engineering...However, state law giving effect to shrink-wrap
licenses is no different in substance from a hypothetical black dot law.
Like any other contract of adhesion, the only choice offered to the
purchaser is to avoid making the purchase in the first place. ...State
law thus gives the copyright holder the ability to eliminate the fair use
defense in each and every instance at its option. In doing so, as the
majority concedes, it authorizes 'shrink-wrap agreements...[that] are far
broader than the protection afforded by copyright law.'"
If you need to lie, then just don't reply.
If you're incapable of being polite, don't reply.
Of course, the contract cannot be uncoinscionable. You must
genuinely agreed to it. And there can be reasonable questions over
whether or not you actually violated it.
LOL!
That's about at the same level as "that's what you think".
DS
