Martha Graham, Professor Miller and the Work For Hire Doctrine: Undoing the Judicial Bind Created by the Legislature

The current work for hire doctrine, as embodied by 17 U.S.C. Sections 101 and 201 and interpreted by the judiciary, provides a default rule of copyright ownership in favor of employers where a work is created by an employee in the scope of employment. In the absence of a written agreement, a finding that an engagement is a work for hire under the statute automatically results in all ownership being vested in the employer. This result often contradicts business norms and the understanding of one or both of the parties. In this Article, the author advocates abolishing the all-or-nothing concept of ownership in favor of a more particularized analysis that emphasizes the expectations of the parties. This would involve first reversing the current, pro-employer statutory presumption and then analyzing whether, and to what extent, the employer may have a license to the work

Beyond Section 230 Liability for Facebook

(Excerpt) In October 2021, a former Facebook employee, Frances Haugen, publicly revealed that the company\u27s internal research documented harms that its products caused some of its users. The company’s response was sadly predictable. It questioned the reliability of Haugen’s testimony, asserted its commitment to doing the right thing, and then diverted the public’s attention by changing its name to Meta. The company’s deny-and-distract tactics were, by now, all too familiar and provided few answers. More than any other platform company, Facebook has found itself at the center of controversy. Its advertisement-supported business model relies upon user engagement which means that its algorithms often, even if unintentionally, promote content that is false, divisive, and harmful to its users. The company profits handsomely from scams that proliferate on its site. Its practices governing data collection and online tracking activities are dubious at best. Yet, despite all the hand wringing and negative commentary about the legality and ethicality of its business, Facebook continues to engage in practices with harmful social consequences. According to a Wall Street Journal investigation referred to as the “Facebook Files,” the company’s own research documented the harms that its products inflict upon its users and society. How then has Facebook managed to get away with it for so long? In the absence of regulation, the public depends upon private citizens to claim their rights and redress their wrongs in a court of law. When companies deploy new technology and new business models, legislators and regulators are often slow to react. Consequently, the legality of these new practices is often litigated in court, typically in a class action lawsuit brought against the company. The imposition of civil liability is especially critical in Facebook’s case because the company has been famously evasive about its internal research and what it knows about its products. A lawsuit could be an important way to compel Facebook to disclose some of that information. However, platform companies such as Facebook typically escape liability for content on their websites because of the immunity provided by section 230 of the Communications Decency Act. They claim that they are not publishers of content. Instead, they argue, they merely provide a platform for the distribution of content created by others. As mere platforms, courts have held that they are not responsible for defamatory or harmful content on their websites, even if they occasionally exercise removal or moderation power

Revisiting the License v. Sale Conundrum

This Article seeks to answer a question that has become increasingly more important as commerce moves from the tangible to the intangible—to what extent may a business use a contract to control the use of a fully paid product? The characterization of a transaction as a license or a sale determines what may be done with a product, who controls how the product may be used, and what happens in the event of a dispute. The past generation has seen a seismic shift in the way businesses distribute their products to consumers. Businesses often “license” rather than “sell” their products, and view consumers as licensees, rather than owners, of the products they buy. Customers own their print copies of books, movies, and music but merely license the same content when they purchase it in digital form. The marketplace transition from sale to license has far and wide ripple effects affecting a range of issues from innovation to the environment. The rapid emergence of the Internet of Things adds to the urgency and importance of the question— are goods licensed or sold? The question of whether a digital product is licensed or sold is often conflated with the question of whether a product should be licensed or sold. The problem lies, in large part, with the well-intentioned but misguided turn that contract law has taken away from the intent of the parties and toward a narrow vision of efficiency. When it comes to commercial transactions, the narrow efficiency view prioritizes quantity of completed transactions over quality, ignoring consumer expectations and the way in which distrust creates uncertainty in the marketplace. This Article proposes a methodology for resolving the license v. sale conundrum that promotes a more expansive view of efficiency and brings more predictability and fairness to an increasingly muddled area of the law

Situational Duress and the Aberrance of Electronic Contracts

This article explains how the aberrant nature of electronic contracts has unique implications, which contract law should recognize. Companies, taking advantage of these unique implications, may use electronic contracts in an unfair and coercive manner, which is why this article proposes expanding the definition of duress to include “situational duress.” Situational duress would not encompass all electronic contracting scenarios, but would be limited to situations where (1) a drafting company uses an electronic contract to block consumer access to a product or service; (2) the consumer has a “vested interest” in that product or service; and (3) the consumer accepts the terms because she was blocked from the product or service after attempting to reject or decline them. Thus, situational duress would be limited to those situations where consumers are uniquely vulnerable because of the nature of their interest in the product or service. In these situations, the consumer’s action should not be effective as a manifestation of assent and the contract should be void, not voidable

Bargaining Power and Background Law

Power in contract law typically refers to the bargaining strength of each contracting party in relation to the other. In assessing the relative bargaining power of each party, courts and commentators often consider factors specific to the parties, such as socio-economic status and education level. In this Essay, I suggest another factor that affects the power of the parties in negotiating or modifying their agreement, one that I refer to as the background law. The background law is the substantive law that governs the subject matter of the contract. This Essay focuses specifically on the background law of copyrights and the way it alters and affects the allocation of power between contracting parties. In certain circumstances, the background law of copyright has the potential to create or exacerbate two kinds of power imbalance--knowledge power and market power. In this Essay, knowledge power refers to the advantage that a superior understanding of the background law confers upon a contracting party, and market power refers to the ability of a contracting party to establish and dictate business norms in a particular segment of the economy or within a particular industry. This Essay focuses on three bargaining pairs in order to explore how copyright law as background law can create knowledge and market power imbalances: (1) independent artist and hiring party, (2) employee and employer, and (3) software company and consumer. The first two bargaining pairs involve the work-made-for-hire doctrine. The third bargaining pair involves innovative contracting forms and the freedom to contract. Part I examines knowledge power imbalances using as examples the first two bargaining pairs. Part II analyzes market power imbalances using as an example the third bargaining pair

The Software Licensing Dilemma

This Article makes two arguments. First, the dilemma posed by software transactions-sales or licenses?-should be answered by dynamic contract law. Dynamic contract law has as its objective effectuating the intent of the parties but weighs that objective against policy considerations. Second, the validity of a license grant should not be inextricably tied to the validity of the contract as a whole. The problem with relying on contract doctrine in the context of software licensing is that, too often, the application of that doctrine is static and formalistic. A new doctrine is not necessary to address software licensing issues; rather, the old doctrine needs to be reinvigorated to address changes in the marketplace. A license grant is not solely and exclusively a contractual term, the validity of which depends on the validity of the contract in its entirety; rather, in the event that a software license fails as a contract, the license grant may be considered-separate from the contract as a whole-as a promise made by the licensor that is contingent on the licensee\u27s performance and adherence to its terms. Part II discusses the implications of the licensing dilemma and the ramifications that flow from a determination of the transaction as either a license or a sale. Part III summarizes existing approaches to the software licensing dilemma and proposes a dynamic contracts approach to examining software transactions. A dynamic contracts approach identifies the nature of the transaction as relevant to determining the intent of the parties. Part III also proposes several criteria for distinguishing a sales transaction from a licensing transaction and acknowledges that most software transactions contain aspects of both. In addition, Part III discusses the effect of written terms that accompany a product in both a licensing and a sales transaction. Because software license agreements are contracts, their validity and enforceability should depend first and foremost on their validity and enforceability as contracts; however, rather than examining the written agreement in order to characterize the transaction, we should look to the transaction to determine how to interpret the written terms. In a sales transaction, the license grant is effective as a promise independent from the other terms contained in the contract. Recognizing the independence of license grant provisions exposes the binary proposition of license versus sale as a false dichotomy. Part IV examines two common license restrictions and discusses how each should be interpreted using a dynamic contracts approach. Part V discusses and responds to anticipated objections to this approach. This Article concludes that the software licensing dilemma is a red herring. Technology has created challenges for software producers, but those challenges are not unique to the software industry. Before we distort existing legal doctrine in an effort to accommodate the perceived needs of a specific market segment, we should carefully consider the impact of doing so on other market segments. It would be much wiser to take the long view to address technological changes than to create exceptions that morph into rules with regrettable implications