Rethinking Contractual Restrictions on Fair Use: Preemption and the Structure of Copyright Policymaking

Viva R. Moffat

Abstract

Online contracts proliferate and govern nearly every commercial transaction and most of the ways in which the modern consumer interacts with the world. Issues surrounding “contracting around” the Copyright Act have been simmering for years. In this article, I survey numerous online contracts, and I conclude that these issues have only become more acute: nearly every website and every good or service sold online comes with a contract attached, and virtually every one of those contracts contains a limitation on fair use.

Most courts and many commentators have rejected preemption as the appropriate doctrinal tool for addressing contractual restrictions on fair use. I argue in this article that preemption ought to be employed for two reasons. First, preemption is the only doctrine designed to address the interaction between state law and federal law and policy. Viewing preemption as an interpretive task (which most courts have failed to do), courts ought to be able to apply the express and implied preemption doctrines in a relatively coherent way, and under this approach fair use restrictions in adhesion contracts conflict with important federal copyright policies. Second, preemption in this context is a way of acknowledging and emphasizing the proper institutional structure of copyright policymaking. By permitting copyright owners to contract around fair use, courts have improperly abdicated their fair use policymaking role while at the same time arrogating to themselves policymaking regarding “contracting around” fair use, which is a task that should be placed at Congress’ door. Finally, preemption need not be the final word. Instead, preemption may prompt a dialogue between the federal courts and Congress that may result in a more effective resolution of the issues.