October 05, 2004

Fair Use, and The Limits Of Contract

Yet one more noted atrocious aspect of the Blizzard v. BNETD case is the contact-supremacy view which overrides other consideration. Again, the relevant passage (my notes in brackets):

The Court finds the reasoning in [the case] Bowers [v Baystate] persuasive. The defendants in this [Blizzard v. BNETD] case waived their "fair use" right to reverse engineer by agreeing to the licensing agreement. Parties may waive their statutory rights under law in a contract. See, e.g, The Older Workers Benefit Protection Act, 29 U.S.C. 626(f) (2004) (statute outlines minimum requirements for waiver of statutory right to sue under the ADEA). In this case, defendants gave up their fair use rights and must be bound by that waiver.

That's about as clear a statement of reasoning as one can get. It's a contract. But the overall difficulty with challenging this view of contract, is that, for example, one can readily contract-away one's free-speech rights. That's exactly what a non-disclosure agreement (NDA) is. It's a contract to bargain away the right to talk about a topic in return for some benefit. Some Libertarians will literally argue that you should be able to sell all your internal organs, or even sell your children (excuse me, your "parental rights").

So the question is about the limits of contract. Now, I can say that a contract to take away one's fair use and reverse-engineering rights should not be permitted, as against public policy. Do you hear me? This ruling is an abomination, a stink in the nostrils, unfit to be bird-cage liner.

But, who cares if I say that? It's not my opinion which matters. I can point out that the market won't fix this, and reverse-engineering is a very much a minority right. But that's not likely to get far either. Saying the decision is wrong unfortunately provides no way to change it.

By Seth Finkelstein | posted in copyblight | on October 05, 2004 11:59 PM (Infothought permalink) | Followups
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Comments

"Now, I can say that a contract to take away one's fair use and reverse-engineering rights should not be permitted, as against public policy."

I agree. How can we make public policy reflect our opinion? Certainly, blogging is a good way to hone argements and develop a strategy. But, what should the strategy be? Can it be carried out by one (Seth) person?

Maybe we (Seth and his readers and their friends and their readers) can write to our state (are they relevant?) and federal representatives. This is unlikely to be noticed now in the election season, but if we wait a few months for things to settle down, maybe it will be noticed. What should we say to them?

Fred

Posted by: Fred at October 6, 2004 08:30 AM