CONTRACT CONFLICT Guy A
COPYRIGHT © 2017 VIRGINIA LAW REVIEW ASSOCIATION COPYRIGHT SURVIVES: RETHINKING THE COPYRIGHT- CONTRACT CONFLICT Guy A. Rub* Twenty-one years ago, copyright died. More accurately, it was killed. In 1996, in ProCD v. Zeidenberg, Judge Easterbrook, writing for the Seventh Circuit, held that a contract that restricted the use of factual information was not preempted by the Copyright Act and therefore enforceable. The reaction among copyright scholars was swift and passionate. In dozens of articles and books, spreading over two decades, scholars cautioned that if the ProCD approach is broadly adopted, the results would be dire. Through contracts, the rights of copyright owners would run amok, expand, and in doing so they would invade, shrink, and possibly destroy the public domain. Contracts, we were repeatedly warned throughout the years, would kill copyright law. This Article challenges this scholarly consensus by studying the court opinions that have dealt with the copyright-contract conflict over the past four decades. This examination reveals surprising facts: notwithstanding the scholars’ warnings, ProCD’s approach won the day and was embraced by most federal circuit courts. The doomsday scenarios scholars warned against, however, did not materialize. The * Associate Professor, The Ohio State University Michael E. Moritz College of Law. I would like to thank Professors Clark Asay, Ian Ayres, Jonathan Baker, Scott Baker, Omri Ben-Shahar, Robert Brauneis, Wendy Gordon, David Hoffman, Robert Merges, Mark McKenna, Alan Michaels, Michael
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