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Stop Mucking Up Copyright Law: A Proposal for a Federal Common Law of Contract is a Common Sense Solution

45 Pages Posted: 19 Jan 2004  

Llewellyn Joseph Gibbons

University of Toledo - College of Law; Fellow, Intellectual Property Rights Center


This article proposes an alternative to the two current schools of academic thought regarding which body of contract law should govern copyrights. The traditionalists contend that existing state contract law, either common law contract or Article 2 of the Uniform Commercial Code, is adequate to meet the marketplace's need for stable and predictable law. The other school argues that neither form of state law is adequate. Rejecting existing contract law, this school proposes creating new sui generis bodies of state law, such as the proposed Uniform Computer Information Transactions Act (UCITA), to address problems applying state common law or the UCC to copyrights and copyrightable works. Both schools, to some degree, recognize the vexing problems encountered by scholars trying to reconcile state contract law and the federally created body of copyright law. This article rejects this artificial dilemma in proposing a third alternative, one that has not been suggested in the literature: federal courts or Congress should create a body of contract law for copyrights. This avoids the federal preemption and choice of law issues presented by applying state law principles to a federal body of property rights by creating a federal body of contract law. Further, in light of The National Conference of Commissioners on Uniform State Laws (NCCUSL) recent withdrawal of UCITA as a proposed uniform state law, this article represents the only counter proposal to the traditional school of thought and may serve as a possible starting point for developing a uniform body of federal contract law for copyrights.

Keywords: Copyright, Federal common law, Shrinkwrap license, EUL, end use license, preemption

Suggested Citation

Gibbons, Llewellyn Joseph, Stop Mucking Up Copyright Law: A Proposal for a Federal Common Law of Contract is a Common Sense Solution. Rutgers Law Journal, Vol. 34, p. 959, 2004. Available at SSRN:

Llewellyn Joseph Gibbons (Contact Author)

University of Toledo - College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States
419-530-4175 (Phone)
419-530-7878 (Fax)

Fellow, Intellectual Property Rights Center ( email )

No.143, Wuluo Road
Wuhan, Hubei 430073

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