Academic journal article Santa Clara High Technology Law Journal

Will Shrinkwrap Suffocate Fair Use?

Academic journal article Santa Clara High Technology Law Journal

Will Shrinkwrap Suffocate Fair Use?

Article excerpt

Abstract

This article explores the balance between using copyright law and contract law to protect intellectual property, specifically computer software. This article analyzes the balance between the software creator's rights and the public good that results from access to the source code. Section II gives a general overview of the types of protection available to software producers. Section III discusses contract protection for software and the growing acceptance of shrinkwrap licenses and other adhesion agreements as valid contracts. Section IV discusses traditional copyright protection for software in great detail. It discusses the exclusive rights under copyright law as well as the fair use exception to these exclusive rights. Section V discusses the Digital Millennium Copyright Act (DMCA) and its reverse engineering exceptions. Section VI explains how contract law, traditional copyright law, and the DMCA work together, and how preemption doctrines control what happens when they are in conflict with one another. Section VII argues that decisions that uphold adhesion contract prohibitions on reverse engineering were wrong because they did not properly apply preemption analysis. Section VIII argues that the precedents set such decisions are especially frightening when applied to the DMCA.

I. INTRODUCTION

Imagine that you are looking for a particular computer program, perhaps to give you the ability to track your finances, edit your digital pictures, or an endless host of other possibilities for which there is software that is readily available off the shelf for your consumption. You go down to your local computer store and find an attractive option. You buy it, take it home, and open it. Inside the box is a little pamphlet containing terms of your "license" for this product. If you are like most American consumers you throw this "license" away, pop the CD into your computer and start using the program. But let us step back and take a look at that little pamphlet. What is it? What rights and limitations does it give to you as a consumer? Why do software developers include it with your CD? This article will consider the broader implications for society embodied in these little pamphlets. It will analyze when courts should and should not enforce their "license" terms.

Intellectual property law attempts to strike an appropriate balance between the individual's private property interest in their creations and the general public's interest in having access to knowledge and innovation. (1) The Constitution states that, "Congress shall have the Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (2) The purpose of this Constitutional provision is to promote public access to innovative works and inventions, which thereby promotes the development of art, science, and industry. (3) The financial reward guaranteed to the author or inventor is just a result of this general objective, rather than an end in itself. (4) As a result, courts must sometimes subordinate an author or inventor's interest in a maximum financial return for the greater public good of the development of art, science, and industry. (5) Contract law on the other hand does not have such well-defined methods of balancing personal and societal interests. Thus, the use of "licenses" like the ones mentioned above is a dangerous method of protecting intellectual property because it gives nearly unbridled power to the innovators.

This article will explore the balance between using copyright and contract law to protect intellectual property. It will look specifically at protections for computer software. This article analyzes the balance between the individual computer software creator's rights and the public good that results from access to computer software source code. Section II gives a general overview of the types of protection available to software producers. …

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