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
