UC Berkeley

This Article argues that both courts and scholars are wrong in their categorical approaches to preemption of contracts under the Copyright Act, and proposes an intermediate approach that recognizes the importance of both contract rights and federal policy in preemption analysis. First, it argues that both courts and scholars have misapplied preemption law to breach of contract claims. Although the two sides tend to favor opposite results, they take equally categorical approaches. Categorical approaches to the issue of contract preemption are antithetical to preemption law. Under either express or implied preemption, courts must consider whether a particular state law claim interferes with the purpose of the federal statute. This preemption analysis turns not on the label of state law claim under consideration, but on close examination of the legal and factual details of a particular case.

Second, the reason this issue has been analyzed incorrectly is that preemption law seems ill-suited to contract claims. Ordinarily, preemption cases are concerned with whether a state regulatory scheme is likely to supplant a federal scheme. In cases dealing with preemption of contracts, however, that is not ordinarily the issue. State law is necessary to enforce contracts, but the obligations are voluntarily assumed. Thus, the issue is really whether individuals should be able to contract away rights granted by the federal Copyright Act. Accordingly, I argue that in analyzing the Copyright Act’s preemption of contracts, courts should draw more from the law related to contractual waiver of statutory rights. This body of law governs the extent to which individual waivers of statutory rights are enforceable and applies to all kinds of state and federal statutes.

Third, the Article proposes a new model for addressing copyright preemption of contracts based on insights from waiver doctrine. Waiver doctrine holds a contractual waiver enforceable if it (1) is clear and unmistakable, and (2) purports to waive statutory rights under the Copyright Act that protect individual rather than public interests. If courts integrate these requirements from waiver doctrine into contract preemption analysis, the analysis will be more consistent with preemption law generally and will find the proper balance between freedom of contract and federal copyright policy.