Beyond Preemption: The Federal Law and Policy of Intellectual Property Licensing

Abstract

Proposed Uniform Commercial Code article 2B, which will govern transactions in information, will remake the law of intellectual property licensing in a radical way. But federal and state intellectual property policies impose significant limits on the ability of states to change these rules by contract law. One such limit is preemption, but preemption is unlikely to provide sufficient protection for the established rules of intellectual property law. Three other sets of doctrines will limit the ability of parties to set their terms by contract, even in the UCC 2B world. The first doctrine is copyright misuse, which has been applied against restrictive licensing provisions. The second set of doctrines provides that a number of licensing rules are decided as questions of federal, not state, law. The third doctrines are state public policies that cannot be overriden by contract. Taken together, these doctrines create a patchwork federal policy of intellectual property law that UCC 2B cannot alter.