Copyright, Free Expression, and the Enforceability of ‘Personal Use-Only’ and Other Use-Restrictive Online Terms of Use

Abstract

Expression is simultaneously creative and referential. It is copyright’s task both to supply ownership incentives sufficient to promote the creation of expressive works, and to carve out creative (and for that matter, expressive) space from those rights for subsequent creators. Fair use and uses of copyrighted content that the Copyright Act has traditionally privileged are therefore themselves critical to expression. Purveyors of expressive content on the World Wide Web would challenge copyright’s careful balance by conditioning access to content on the user’s acceptance of nonnegotiable, contractually binding terms of use (“TOU”). Website TOU commonly impose “personal use-only” restrictions on users that prohibit uses copyright law would permit. If enforced against critical and scholarly uses of web content, these TOU could undermine the great democratizing potential of the come-one/come-all Internet. Trends in the case law suggest that express and conflict preemption and unconscionability defenses will likely be unavailing to authors who engage in prohibited uses of TOU-restricted web content – even if these uses would be “fair” under the Copyright Act. Although individual parties should be free to negotiate away copyright-approved uses in their dealings with content owners, courts should not be constrained in finding TOU unconscionable or preempted by copyright, when circumstances suggest the content purveyor means to augment its rights unilaterally through nonnegotiable bulk “contracting.” Indeed, when a copyright-approved use of content subject to TOU is expressive in nature, courts should consider a possible constitutional defense to enforcement of the TOU.

Keywords: Copyright, TOU, Website, Free Expression, First Amendment, Unconscionability, Preemption, Contract, Fair Use