Opportunities to Protect Copyright User Rights from Contractual Override

Last Updated on September 24, 2024, 4:22 pm ET

Photo by Cytonn Photography on Unsplash

The US Copyright Act includes special rights for libraries and the scholarly functions they support. However, when licensing digital content, publishers and vendors sometimes include terms to restrict certain uses that are lawful under copyright law. Recognizing that these license terms could upset their copyright law’s balance between rightsholders and users, some countries have clauses in their copyright law that invalidate license terms that are inconsistent with their copyright law’s exception, but the US has no such protection.

To explore the impacts of these protections in other jurisdictions, as well as alternative legal theories that could have the same effect, in May 2023, the American Library Association (ALA) and the Association of Research Libraries (ARL)—together, the Library Copyright Alliance (LCA)—sponsored a public symposium on “Protecting Copyright User Rights from Contractual Override,” hosted by the American University (AU) Washington College of Law (WCL) Program on Information Justice and Intellectual Property (PIJIP). During the symposium, experts presented legal theories and scholarship related to the issue of contracts that restrict libraries and researchers from exercising the limitations and exceptions in the US Copyright Act. We published a summary of the symposium in the Journal of Copyright in Education and Librarianship 7, no. 2 (2024).

In this ARL Views blog post, we reflect on the legal developments since the symposium, and opportunities for ARL and LCA to advocate to protect user rights.

AI Licensing Deals Bring Increased Attention to Issues of Licensing and Fair Use

Since the user rights symposium, research libraries, authors, and ARL have written about the importance of protecting fair use for scholarly purposes. Now that we see AI firms licensing copyrighted data from scholarly databases, the research community has an opportunity to revisit questions related to fair use and licensing, such as:

• Does the creator of an AI system need a license/permission from copyright holders to use copyright-protected materials in training AI?
• Can copyright owners opt out of having their content used to train AI?
• How can we empower the community to assert their rights in license agreements for digital scholarly works?
• How can authors, libraries, and the scholarly community preserve fair use rights for training AI models on copyright-protected works for nonprofit educational research?
• What implication could an AI-licensing regime have on courts’ interpretation of the fair use analysis?

Why It Matters

Scholars, libraries, and others can act through their institutions, associations, and consortia to preserve fair use in contracts for licensed digital works. As Congress introduces proposals to regulate the use of copyrighted material for AI training, it may be even more important to carve out protections for AI uses in the nonprofit/education/research context. Court cases and forthcoming reports by the US Copyright Office will also influence our community’s understanding of, and position on, these and other related questions.

Contract Claim Dismissed Under Principles of Conflict Preemption

During the user rights symposium, Guy Rub of The Ohio State University Moritz College of Law noted that opinions in most copyright preemption lawsuits have been on express preemption, which holds that rights that are equivalent to the exclusive rights in US copyright law are preempted. However, in May 2024 the US District Court for the Northern District of California determined that conflict preemption is the appropriate analysis when considering whether enforcement of state law undermines federal copyright law; this is the first case in which a contract claim was dismissed under principles of conflict preemption.

In the case X Corp. v. Bright Data, X sued web-scraping company Bright Data for scraping and selling X’s data. The court found that X’s state law claims conflict with the US Copyright Act in three ways:

• X’s users own their data, and grant X a temporary non-exclusive license to use the data, so X has no right to exclude others from using the content. X’s scraping claims would enable X, a non-exclusive licensee, to block others from exercising rights that, under the Copyright Act, belong exclusively to X’s users.
• Enforcing X’s contractual scraping prohibitions would interfere with the exercise of the statutory privilege of fair use.
• The anti-scraping provisions purported to give X “de facto copyright ownership over content that Congress declined to extend copyright protection to in the first place (g., likes, user names, short comments),” thereby shrinking the public domain in contravention of key copyright policy.

Why It Matters

If other courts choose to apply a conflict preemption analysis to contract claims, we might see decisions that make it difficult for platforms to control the flow of information by enforcing terms of service that prohibit scraping and other functions when they do not hold the exclusive copyright to that data. LCA will keep an eye out for such decisions, and analyze their implications for research libraries.

The Doctrine of Copyright Misuse Might Provide Protections for User Rights from Contract Override

During the user rights symposium, Margaret Chon of Seattle University School of Law described the doctrine of copyright misuse, and how it might provide protections for user rights from contract override. Copyright misuse is judicial doctrine that can be applied when a rightsholder attempts to extend their copyright beyond the scope of the exclusive rights granted by Congress, in a manner that is contrary to the public policy embodied in copyright law. Copyright misuse can apply to overreach of license agreements or terms of service, particularly if they facilitate anticompetitive practices.

Why It Matters

Advocating for the US Congress to codify copyright misuse might be a promising strategy for LCA to pursue. Alternatively, this theory could be pursued strategically in key court cases.

The post Opportunities to Protect Copyright User Rights from Contractual Override appeared first on Association of Research Libraries.