Could fair use equal breach of contract?: An analysis of informational Web site user agreements and their restrictive copyright provisions

I. Introduction

Imagine that you are writing a thesis concerning media coverage of politics in the Middle East. You log onto the Internet and find numerous useful articles concerning the recent election in Israel on the web site of the New York Times. Deciding that these articles would be helpful, you print them out. Then, in the course of writing your thesis, you use the articles as evidence of bias in the media. Later, your thesis is published in a scholarly journal, and you win numerous accolades. However, a month later, you are served with a summons and complaint. The plaintiff, the New York Times, alleges breach of contract for your use of its articles. When, you ask, did I enter into a contract with the New York Times?

A. Factual Background. Hidden Terms and Conditions?

Should a user decide to click on one of these links, that user will encounter language explaining that, by using the site, the user is bound to the terms and conditions of that site. For example, the New York Times on the Web states that, "[i]f you choose to use the NYT Web service ... you will be agreeing to abide by all of the terms and conditions of this Agreement between you and the New York Times on the Web."8 The other sites contain similar language.9

Within these web site terms and conditions are various copyright provisions," For example, the Washingtonpost.com's site contains a copyright notice that states as follows:

You may not copy, reproduce , distribute, publish, display, perform, modify, create derivative works, transmit, or in any way exploit any part of this service, except that you may download material from this service for your own personal, noncommercial use as follows: you may make one machine readable copy and/or one print copy that is limited to occasional articles of personal interest only.11

B. Legal Issues Raised

The first legal question raised by these web sites is whether the terms and conditions are enforceable agreements. The terms are not negotiated, and most users probably do not read them. Therefore, the question is whether the user has manifested assert to the terms. Further, a court may struggle to find consideration for the agreement because the web sites do not charge fees to access their sites. Although no case has specifically addressed the enforceability of these terms and conditions, it is possible to analogize to other types of contract cases. For example, in a class of cases commonly called "clickwrap" cases, the user of a web site clicks on "I agree" to manifest assent to the terms of the web site.14 A second class of cases involves so-called "shrinkwrap" contracts, in which courts have held that terms of a contract enclosed in packaging are binding on a buyer once the buyer opens the package.15 Finally, a third class of cases involves what are called "browsewrap" contracts, in which contract terms are actually part of a web site, and the user supposedly assents to those terms merely by viewing the web site.16 These three types of cases are distinguishable from the informational web site agreements, but they do suggest that courts are willing to find binding contracts under non-traditional circumstances.

Although these two questions could be treated separately, they seem inextricably and inevitably intertwined. Therefore, it is proper to address them both in this Note. Part 11 of this Note will first discuss the contractual requirements of mutual assent and consideration and then will analyze the impact of clickwrap, shrinkwrap, and browsewrap cases on the validity of online user agreements. Part III of this Note will begin to address federal copyright law; specifically, Part Ill will analyze the fair use defense and the four statutory fair use factors. Then, in Part IV, this Note will discuss federal preemption of state law contract claims. In a case involving the fair use of Internet sites, preemption is warranted. Finally, Part V will tie the preceding subjects together and conclude that the copyright provisions of the online user agreements are unenforceable.

II. Contractual Issues

In order to decide whether web site user agreements are valid contracts, it is first necessary to determine whether such agreements satisfy the contractual requirements of mutual assent and exchange of consideration. The recent clickwrap cases, shrinkwrap cases, and browsewrap cases provide useful analogies, and they must be discussed as well. However, because the clickwrap and shrinkwrap cases are distinguishable from cases involving online user agreements and because there is a split of authority regarding the browsewrap cases, these cases do not necessarily answer the ultimate question of the enforceability of online user agreements.

A. Traditional Contract Law Principles

1. Mutual Assent and Noticeability of Terms

2. Consideration

Of course, the key inquiry is whether there was actually a bargain.37 The Restatement of Contracts 38 provides that a "performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise."39 Under this language, it can be argued that there is a bargain because the web site owner's performance is sought by the user in exchange for the user's promise to abide by the terms of service.