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Cohen - Jurisprudence of Self-Help
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"Copyright (c) 1998 Berkeley Technology Law
Journal
Berkeley Technology Law Journal
Fall, 1998
13 Berkeley Tech. L.J. 1089
LENGTH: 31940 words
ARTICLE: Copyright and The Jurisprudence of Self-Help
By Julie E. Cohen*
© 1998 Julie E. Cohen.
* Visiting Assistant Professor, Georgetown
University Law Center (Fall 1998); Visiting Assistant Professor, University
of Michigan Law School (Spring 1999); Assistant Professor, University of
Pittsburgh School of Law. Internet: <cohen@law.pitt.edu>. I thank Harry
Flechtner, Steve Goldberg, Kate Heidt, Avery Katz, Mark Lemley, Larry Lessig,
Jerry Reichman, M. Douglas Scott, and Bill Vukowich for their valuable
comments and suggestions and Steven Serdikoff and Richard DeCristofaro
for research assistance. I appreciate David Friedman's attention to my
work.
SUMMARY:
... A new wind is blowing in copyright
law. ... The license need not disclose electronic regulation that
merely implements a stated temporal or quantitative restriction on use,
or enforces "informational rights which were not granted to the licensee."
... Nonetheless, both the Reporter's Notes and the prefatory memorandum
accompanying Article 2B make clear their belief that even mass market contracts
that are inconsistent with copyright are not necessarily invalid for that
reason. ... Such material could be repossessed or "depossessed" electronically
only if the licensor first gained physical possession of a copy (subject
to the "breach of the peace" limitation) or if the license authorized the
repossession and the licensor gave at least ten business days' notice.
... The Reporter's Notes state that the draft "takes no position
on whether self-help can be pursued through electronic means." ...
Deciding whether a consumer has failed to pay is relatively easy; for other
license provisions, however, the determination of breach may require resolution
"
....
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