Kat, I've never gone so far as to believe contract trumps copyright.
Sure, contracts within the scope of copyright are fine, but contracts
that leverage copyrights into control over uses specifically excluded
from copyright should, at best, be void and unenforceable as a matter
of public policy (and at worst, copyright misuse and a Sherman Act
violation). A good parallel might be employment law. Employers have
certain rights and employees have certain rights, but we would not
tolerate an employer obtaining contractual agreements from employees,
as a condition of employment, to waive all rights enjoyed by the
employee as a matter of law. Sure, some prospective employees might
find it "a better deal" to waive rights against age, sex, or race
discrimination in exchange for a higher salary, and the "free market"
would find that to be just dandy, but we, as a society, would not
tolerate it.
As a matter of pure copyright law, when the grant of section 106
rights is made expressly "subject to sections 107-122," those sections
would lose much of their value if copyright owners could license
section 106 rights only on condition that the licensee waive the
limitations in 107-122, don't you think?
John
John T. Mitchell
http://interactionlaw.com
On Dec 6, 2008, at 8:32 PM, Kathrine Henderson wrote:
This restriction has been there for more than two years. I suspect
that the
publishers are within their rights to restrict usage--contract law
trumps if
nothing elese, but it seems yet another example of copyright being
out of
balance. Ultimately, I think that publishers are going to have to
change
their business model; but I don't think there's enough pressure in the
market.
My $.02,
Kat Henderson