University of California Press
As information becomes increasingly available in digital form, a little noted yet significant legal change is occurring in the way in which information providers use the law to establish the terms under which they market their products. Electronic information providers, in contrast to their hard-copy counterparts, have continually turned to the private law of contract both to supplement and modify the public law of copyright.' While this trend began when most users were relatively large commercial, academic, or governmental enterprises, it accelerated as software providers began to market pre-packaged software to consumers, using the infamous "shrinkwrap" as a device to alter the copyright law through private contract.2 This movement to contract has continued with the proliferation of on-line data. In particular, it has extended to contracting not just to modify copyright rights that would otherwise apply but also to create private copyright protection through contract in instances in which the public law would deny copyright protection altogether.
Copyright Preemption After the ProCD Case: A Market-Based Approach
Berkeley Technology Law Journal
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1544