11 U. Miami Bus. L. Rev. 105 (2003)
Bowers v. Baystate Technologies: Using the Shrinkwrap License to Circumvent the Copywright Act and Escape Federal Preemption

handle is hein.journals/umblr11 and id is 107 raw text is: BOWERS V. BAYSTATE TECHNOLOGIES: USING THE
SHRINKWRAP LICENSE TO CIRCUMVENT THE
COPYRIGHT ACT AND ESCAPE FEDERAL PREEMPTION
BY: MERRITT A. GARDINER
INTRODUCTION
The primary and most important claim of trade and commerce is
to give them surety against highway robbery. In the same way the
primary though merely negative demand of the sciences and arts is
to insure the workers in these fields against larceny, and give their
property protection. But in the case of a mental product the
intention is that others should comprehend it, and make its
imagination, memory, and thought their own. Learning is not
merely the treasuring up of words in the memory; it is through
thinking that the thoughts of others are seized, and this after
thinking is real learning.'
The framers of the United States Constitution agreed with virtual
unanimity to entrust copyright law within the federal sphere of national
power.2 Article 1, Section 8, Clause 8 of the United States Constitution
gives Congress the power [t]o promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and Inventors the exclusive
right to their respective Writings and Discoveries.3 Congress used this
power to regulate the exclusive rights in such creative works by enacting the
Copyright Act enumerated in Title 17 of the United States Code.4
The current version of the governing statute extends exclusive rights in
a variety ofcreative works, including books, periodicals, manuscripts, music,
drama, pictures, sculpture, motion pictures, sound recordings, architecture,
and computer programs.' The bundle of rights in § 106 of the Act gives
I    G.W.F. Hegel, Hegel's Philosophy of Right 74 (S.W. Dyde trans., London, George Bell and
Sons 1986).
2    1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 1.01[A], at 1-4 (2002).
3    U.S. Const. Art. 1, S 8, cl. 8.
4    See, e.g., 17 U.S.C. § 102 (a) (2000). Upon original enactment in 1790, Congress subsequent-
ly amended the Copyright Act four times - in 1831, 1870, 1909, and 1976. The Copyright Act provides
protection to original works of authorship fixed in any tangible medium of expression.
s    See, e.g., 17 U.S.C. SS 101 and 102 (a) (2000). Congress extended copyright protection to
computer programs to the extent that they incorporate authorship in the programmer's expression of

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