Federal copyright law limits the copying of certain informational goods. But can state laws, and in particular state contract law, also do that? Until recently, the dominant approach was that they could. However, two recent Second Circuit decisions seem to suggest that only copyright law is allowed to do it. In other words, the Second Circuit assumes that copyright law is the only law that can regulate copying.
The Essay argues that the Second Circuit’s approach, while shared by several other courts, is wrong. It is in tension with the text and history of the Copyright Act and with the desirable relationship between federal IP law and state commercial law. This relationship is best described as symbiotic, but the Second Circuit has put those laws on a collision course. In doing so, the Second Circuit has ignored the practices of multiple industries and the ways in which copyright law and contract law work together. Indeed, state laws, in general, and contract law, in particular, have always regulated copying. Those rights and those contracts play a crucial role in our economy. Holding them unenforceable, as the Second Circuit did, might therefore disrupt well-established legal mechanisms without promoting identifiable federal policies.