Legal-Ware: Contract and Copyright in the Digital Age

121 Pages Posted: 14 Nov 1998

See all articles by Michael J. Madison

Michael J. Madison

University of Pittsburgh - School of Law


ProCD, Inc. v. Zeidenberg, which enforced a shrinkwrap license for computer software, has encouraged the expansion of the shrinkwrap form beyond computer programs, forward, onto the Internet, and backward, toward such traditional works as books and magazines. Authors and publishers are using that case to advance norms of information use that exclude, practically and conceptually, a robust public domain and a meaningful doctrine of fair use. Contesting such efforts by focusing on the contractual nature of traditional shrinkwrap, by relying on market principles, on adhesion theory, on commercial law concepts of usage and custom, or on federal preemption doctrine, feeds rather than resists this trend. This article argues that instead of regulating shrinkwrap itself, reinforcing an adjudicative environment that focuses on public values inherent in copyright and information policy is the best means of preserving fair use and the public domain as meaningful concepts.

Keywords: shrinkwrap, fair use, copyright

JEL Classification: K19

Suggested Citation

Madison, Michael J., Legal-Ware: Contract and Copyright in the Digital Age. Fordham Law Review Vol. 67, No. 3, December 1998. Available at SSRN:

Michael J. Madison (Contact Author)

University of Pittsburgh - School of Law ( email )

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Pittsburgh, PA 15260
United States
412-648-7855 (Phone)
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