Fair-use rights took a hard hit in a copyright case decided on August 20. In Bowers v. Baystate Technologies the First Circuit Court of Appeals held that when a shrink-wrap license and the federal copyright statute conflict, then the licence takes precedence. Moreover, the shrink-wrap licence is valid even in the absence of UCITA. (PS. Librarians know well that licensing terms often negate fair-use and other rights granted by the copyright statute. There have been two windows of hope for challenging such licensing terms: federal preemption of state contract law, and the general invalidation of shrink-wrap licenses as contracts of adhesion imposed on parties with essentially no bargaining. This case closes both windows, though only the first of the two issues seems to have been fully litigated here. Now the only windows of hope are that the First Circuit is merely one of eleven, and that the Supreme Court has yet to weigh in.)
Posted by
Peter Suber at 8/30/2002 06:26:00 PM.
The open access movement:
Putting peer-reviewed scientific and scholarly literature
on the internet. Making it available free of charge and
free of most copyright and licensing restrictions.
Removing the barriers to serious research.
