Faculty: Publication Abstract
The Evolving Common Law Doctrine of Copyright Misuse: A Unified Theory and its Application to Software, 15 Berkeley Tech. L.J. 865 (Fall 2000) (with Dan Moylan)
Brett M. Frischmann, Assistant Professor
Abstract:
This Article explores the common law defense of copyright misuse from a variety of angles in an effort to refine and unify existing views. The unified model that emerges is then applied to software copyright, addressing the tension that software creates within copyright law as well as between copyright, patent, and antitrust law. Part II develops a jurisprudential model for understanding the substantive relationship between the copyright misuse doctrine and copyright, patent, and antitrust laws, and the procedural approaches taken by courts when formulating and applying misuse principles - - per se rules and the rule of reason. Part III examines four Supreme Court cases that provide guidance for the application of misuse principles in the copyright context. It then turns to an analysis of the application of copyright misuse in the federal courts of appeals. These discussions enable a distillation of guiding principles from the case law in an attempt to clarify the "current state of the copyright misuse doctrine." Part IV applies the principles derived in Parts II and III to software copyrights and proposes a per se rule against licensing restrictions upon reverse engineering that complements antitrust-based misuse and the fair use doctrine. Rather than attempt to provide a comprehensive set of public policy-based misuse rules, this Article instead presents a single rule as an illustration of how further doctrinal development might proceed.
Cited in In re Napster Litigation, 191 F.Supp.2d 1087 (N.D. Cal., Feb 22, 2002) [pdf].
