The most common type of use restriction in a website TOU is a "personal use-only" restriction. A website that contracts with visitors only to make personal use of the content it displays deprives visitors of public privileges made available to them by copyright law. It is not copyright infringement, for example, to make fair use of content subject to copyright protection, but personal use-only TOU empower a website to bring a breach of contract action against certain fair users. Indeed, a website's proprietor may be able to sue to enjoin (or obtain damages for) uses of content for which the site owns no copyright, either because the rights belong to a third party or because the content is by its nature not subject to copyright protection at all. Determinations by Congress and the courts regarding what expression should and should not be copyrightable--as well as what uses of copyrighted expression ought to be available to the public--reflect an abiding concern that property rights in one's expression by their nature impede expression by another. (5) Whether or not lawmakers have struck a proper balance between creating incentives to creativity and carving out open space in which those same creators may work, content purveyors online are writing binding rules that upset that balance decidedly in favor of proprietarization.
This Article discusses the TOU phenomenon on the Internet and raises a concern that existing case law appears to support a right of web publishers to graft contract-law protections onto their copyright prerogatives at the expense of the privileged uses that copyright law grants to the public. Part I of the Article sets forth a brief overview of copyright law, focusing specifically on the express limitations that Congress and the courts have imposed on the rights of creators. This Part illustrates how copyright law's doctrine of fair use in particular intends to advance the dual ends of free expression and "the Progress of the useful Arts and Sciences." (6) Part II discusses the emerging convention on commercial websites that favors "personal use-only" and other forms of TOU that significantly encumber fair and other copyright-privileged public uses. Part II goes on to discuss the implications of these use restrictions for online expression, particularly at the grassroots level. Part III explains that the use-restrictive TOU that (purportedly) govern user access to published web content are an outgrowth of "end user license agreements" that computer programmers appended to software deliverables. This Part considers several potential defenses to the enforcement of TOU--questions of contract formation, copyright preemption, unconscionability, and the First Amendment specifically. The decisions of courts that have addressed these defenses to date, largely in the context of software licensing, point to the enforcement of use restrictions against web users who would otherwise have sound legal defenses to a copyright infringement claim. …