RE: "Double" Licenses

[Terry Cullen <tcullen@seattleu.edu>]

In my opinion, the end-user "click-on" license is part of an ongoing
attempt by publishers to effect an end run around users' rights under the
Copyright Act.  It is a way for publishers to expand their rights well
beyond what the copyright law grants in two ways.  

First, it purports to create an enforceable contract with the end user.  
Currently, no court has found click-on (shrinkwrap) licenses enforceable
against consumers (ProCD was a commercial exploitation of a copyrighted
database).  However, the proposed UCC Article 2B would make such licenses
enforceable, if it succeeds and is adopted in the states (unless it is
found to be either unconstitutional or preempted by the Copyright Act.)

Second, it has a chilling effect on users' exercise of their rights to
fair use of materials.  Publishers today want the right to control ALL
uses of all materials they publish, while the Copyright Act grants only
limited rights to copyright holders.  In fact, many publishers do not even
hold copyright in the materials they are trying to control, but only in
the compilation of those materials.  (Many American authors sell/grant
only first North American publication rights or other limited rights when
they sell/offer an article, and retain all other rights in their
creations.)

Terry Cullen
Electronic Services Librarian
Seattle University School of Law Library
950 Broadway Plaza, Tacoma, WA  98402-4470
Email:  tcullen@seattleu.edu
Phone:  253-591-7092  FAX:  253-591-6313