Duke University School of Law
The Copyright Act of 19761 (the "Act") sought to clarify the boundary between federal and state enforcement of proprietary rights in works of authorship by specifically addressing federal preemption of state law causes of action in § 301 of the Act. Unfortunately, § 301 is not a model of clarity, and its legislative history is also cloudy. Consequently, the courts have had some difficulty in formulating consistent decisional guidelines in preemption cases. This difficulty has perhaps been most evident in cases in which the particular preemption issue is based not on a state statute but on state enforcement of private contractual rights. Courts have not clearly stated whether the Act preempts contracts between authors and users of copyrighted works that purport to vary the rights and obligations set forth in the Act.
Drawing the Boundary Between Copyright and Contract: Copyright Preemption of Software License Terms
Duke Law Journal
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1546