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80 Mo. L. Rev. 313 (2015)
Notice and Remedies in Copyright Licensing

handle is hein.journals/molr80 and id is 317 raw text is: MISSOURI LAW REVIEW VOLUME80 SPRING 2015 NUMBER 2 Notice and Remedies in Copyright Licensing BJArd 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 cast- ing 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 un- derstanding and assent are clear. Courts therefore ought to require a height- ened 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 ar- rangements to light, moreover, this approach subjects licenses to public scru- tiny and to discipline through market and political forces. Ph.D. Candidate in Law, Yale University; Resident Fellow, Information Society Project at Yale Law School. I thank Ian Ayres, Jack Balkin, Maureen Brady, Kiel Brennan-Marquez, Richard R.W. Brooks, Brad Greenberg, James Grimmelmann, Christine Jolls, Margot Kaminski, Amy Kapczynski, Michael Kenneally, Christina Mulligan, David Nimmer, Andrew Tutt, and Rory Van Loo for their generous feed- back on this Article, along with the participants at the 2014 Works-in-Progress Intel- lectual Property Colloquium, the 2014 IP Scholars Roundtable at Drake Law School, the Cyberscholars Working Group, and the Yale ISP Fellows Workshop. All errors and omissions are my own.

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