Intellectual Property and General Legal Principles

Intellectual Property and General Legal Principles

Is IP a Lex Specialis?

ATRIP Intellectual Property series

Edited by Graeme B. Dinwoodie

The rule of lex specialis serves as an interpretative method to determine which of two contesting norms should be used to govern. In this book, the lex specialis label is broadly applied to intellectual property and connects a series of questions: What is the scope of intellectual property law? What is the relationship between intellectual property law and general legal principles? To what extent are intellectual property laws exceptional? Drawn together by leading IP scholar Graeme Dinwoodie, these questions and others are answered carefully and reflectively by a team of expert international contributors.

Chapter 2: The enforceability of mass-market e-commerce licenses and social networking agreements: Is copyright or contract law the new lex specialis?

Charles R. McManis and Brett Garrison

Subjects: law - academic, intellectual property law


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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