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The University of Cincinnati Intellectual Property and Computer Law Journal

Abstract

The Copyright Act of 1976 aimed to streamline the United States’ copyright system, replacing dual federal and state protections using an express statutory preemption clause, § 301. Despite the Act’s uniformity objective, challenges persist in the consistent application of copyright preemption, particularly concerning breach of contract claims. A circuit split has emerged, with one group arguing for copyright preemption of contracts involving copyrightable material, while another asserts that most contracts that involve copyrightable material are not preempted and can be enforced. This split was underscored and expanded by the 2022 case ML Genius Holdings LLC v. Google LLC, where the Second Circuit ruled that an online browsewrap contract was preempted by copyright, raising concerns about the feasibility of businesses that compile information on the internet, such as Wikipedia and eBay.

This article aligns with the majority view that copyright and contract claims differ in nature and scope, so properly formed contracts should not be preempted by § 301. It further addresses questions of implied preemption in copyright, as well as the enforceability of browsewrap contracts. This article proposes that implied preemption should be applied to copyright to safeguard against contracts infringing on the goals of the Act, such as limiting fair use and public access. This will ensure that the delicate balance reached by the Act is not intruded upon. Additionally, the preemption of browsewrap contracts should hinge on the awareness of the party entering into the contract. If the party was aware that they were entering a contract, it should often be enforceable against them despite contracting over copyrightable matters. Otherwise, the rights asserted over unknown assenters to browsewrap contracts would too closely mirror the rights given to creators under the Act, and should be preempted.

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