Tuesday, April 14, 2015

Article Summary: Notice and Remedies in Copyright

In Notice and Remedies in Copyright Licensing, an article appearing in an upcoming issue of the Missouri Law Review, author BJ Ard addresses digital works licensing, a problem that resides at the intersection of copyright law and contract law.  Copyright owners distribute their digital works to ordinary consumers subject to licenses.  In many cases, consumers would need to read through heaps of prohibitive boilerplate language in order to learn the terms and conditions of the license.  According to the language of such licenses, a breach of even a minor condition may give rise to a copyright infringement claim for the license holder.  This gives copyright owners a much broader spectrum of remedies and could subject consumers to heightened damages beyond what would be available through contract law.  As a result, consumers of these digital works may be subjected to hundreds or thousands of dollars of liability based on terms and conditions they never read or understood.  Additionally, the public has poor understanding and engagement with creative works.

Ard argues that courts should focus on the basic contract principle of notice when determining how to interpret and enforce licensing agreements.  Under the common law of contracts, supracompensatory remedies are only available where the liable party has clearly signaled understanding and assent to those terms.  Ard contends that if a copyright owner wants to enforce a term in copyright law and seek heightened damages, then the copyright owner should have to meet a heightened standard of notice. 

By focusing on the quality of notice given for terms and conditions in these licensing agreements, courts can better prevent overreaching by licensors.  This notice-centered approach still allows licensors to incorporate innovative terms into their licenses that may be more beneficial than standard arrangements, which regulation based on substantive terms of the licenses may not.  Finally, by insisting that the terms of digital works licenses are prominently displayed and easily understandable, they may be the subject of public debate and scrutiny.

Notice and Remedies in Copyright proposes a procedural solution to an issue of great importance to both licensors and consumers of digital creative works alike. By scrutinizing the presentation of license terms rather than their substance, this framework would protect unwary consumers from heightened copyright damages while permitting licensors to incorporate unusual, innovative, and beneficial terms in their licensing agreements. In today’s digitalized and rapidly changing world, Ard’s notice-driven approach could prove beneficial to all parties involved in digital transactions. 

- Kristen Johnson