May 6, 2003
Donna has been on top of the Bowers v. Bay State case, including the petition for cert. I don’t know a whole lot about contract law, preemption, and the interesting cases regarding shrinkwrap licensing. I do know that if this case is upheld, and you play out the logic, copyright holders will be able to prohibit fair use through contracts. Ouch.
In lieu of this case, it’s worth checking out Tom Bell’s “Escape from Copyright.” He asserts that, because copyright and common law rights together could provide too much protection for copyright holders, they should choose between the two. Elsewhere, Bell argues that leaving everything up to DRM and contract law might have many benefits for the public.
(I don’t really agree with his argument because of the way he treats the public’s interest in copyright. He doesn’t adequately recognize the value in having fair use as a right and is pretty dismissive of pursuing the public interest through the political process. His arguments would seem far more sound if I trusted that the market will be able to protect the public’s rights.)