Copyright Survives: Rethinking the Copyright-Contract Conflict

108 Pages Posted: 5 Mar 2017 Last revised: 20 Oct 2017

See all articles by Guy A. Rub

Guy A. Rub

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: March 2, 2017


Twenty one years ago, copyright died. More accurately, it was killed. In 1996, in ProCD v. Zeidenberg, Judge Easterbrook, writing for the Seventh Circuit, held that a contract that restricted the use of factual information was not preempted by the Copyright Act and therefore enforceable. The reaction among copyright scholars was swift and passionate. In dozens of articles and books, spreading over two decades, scholars cautioned that if the ProCD approach is broadly adopted, the results would be dire. Through contracts, the rights of copyright owners would run amok, expand, and in doing so they would invade, shrink, and possibly destroy the public domain. Contracts, we were repeatedly warned throughout the years, would kill copyright law.

This Article challenges this scholarly consensus by studying the court opinions that have dealt with the copyright-contract conflict over the past four decades. This examination reveals surprising facts: notwithstanding the scholars’ warnings, ProCD’s approach won the day and was embraced by most federal circuit courts. The doomsday scenarios scholars warned against, however, did not materialize. The overall effect of contracts on the size and scope of the public domain, or over copyright law as a whole, seems minimal. The Article explains this discrepancy and shows that contracts are an ineffective tool to control information because they are too weak of a device to threaten or replace copyright law. Indeed, to paraphrase Mark Twain, the reports of the death of copyright were greatly exaggerated.

The Article concludes by placing this analysis in context, as part of a broader ongoing discussion on the desirability and enforceability of standard-form agreements.

Keywords: Copyright, Contracts, Preemption

JEL Classification: K4, K11, K12, O3, O34

Suggested Citation

Rub, Guy A., Copyright Survives: Rethinking the Copyright-Contract Conflict (March 2, 2017). 103 Virginia Law Review 1141 (2017), Available at SSRN:

Guy A. Rub (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics