B. J. Ard


Copyright owners claim the power to designate practically any term of a copyright license as a “condition” enforceable in copyright. In doing so, these licensors purport to translate breach of the most trivial or idiosyncratic term into the basis for a copyright infringement suit. This Article argues that these licenses are most problematic when licensors provide inadequate notice of unexpected terms. License conditions are typically buried in boilerplate that no reasonable consumer reads, and licensors have few incentives to make them more salient. These circumstances not only threaten unwitting users with copyright liability, but also impede copyright’s own goals by casting doubt on the legitimacy of the copyright regime and discouraging the public’s engagement with creative works. Copyright law nonetheless offers courts no effective tools to inquire into the adequacy of notice. Because these agreements arise at a unique intersection of copyright and contract, however, contract law supplies a normative and doctrinal framework that allows courts to demand more effective notice. Contract law is skeptical of supracompensatory remedies – like those that would follow from enforcement of a license condition – and awards them only where understanding and assent are clear. Courts therefore ought to require a heightened standard of notice as a prerequisite to the enforcement of license terms in copyright. This approach would check against licensors’ overreaching. At the same time, it would leave room for parties to experiment with unusual but potentially beneficial licensing arrangements like those championed by the free culture and free software movements. By bringing novel licensing arrangements to light, moreover, this approach subjects licenses to public scrutiny and to discipline through market and political forces.

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