Is IP a Lex Specialis?
ATRIP Intellectual Property series
Edited by Graeme B. Dinwoodie
Chapter 2: The enforceability of mass-market e-commerce licenses and social networking agreements: Is copyright or contract law the new lex specialis?
As many commentators have noted, the Internet is rapidly undergoing a shift from a “read-only” web (Web 1.0) to an increasingly interactive web (Web 2.0) in which social networks vie with e-commerce for prominence and user-generated content (UGC) is becoming an ever more prominent feature. A common feature of both eras has been reliance on mass-market licenses to control the uses that can be made of Internet content. This chapter will compare the contractual phenomenon of mass-market licensing in both the e-commerce and social networking contexts and examine the extent to which such licenses are enforceable or preempted, or might constitute copyright or “license” misuse in the United States. Software and digital content are distributed by mass-market licenses, which typically contain terms that restrict licensee uses of the content. Mass-market licensing in e-commerce has evolved with recent advances in technology. When computer software was primarily sold in boxes, distributors typically used “shrink-wrap” licenses, which took effect when the purchaser tore open the shrink-wrap on the box. With subsequent advancements in computing and Internet speed, software has been distributed digitally through “click-wrap” licenses, where a user clicks a button on the screen to indicate acceptance of the license. These “click-wrap” licenses are also used in the burgeoning field of e-books.
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