In copyright class, professors usually spend most of their time explaining the “public law” aspects of copyright – the exclusive rights that the law gives copyright holders (e.g., reproduction and public performance) and the privileges that the law gives to those who use copyrighted goods (e.g., fair use and first sale). But as they and their students know, many everyday encounters with copyrighted goods are governed not by this public law, but by the “private law” that sellers and buyers create through contracts.

Software provides the best example. If you somehow managed to legally purchase and install a computer program without agreeing to any contract, you would have certain fair use and first sale privileges with regard to that program. But in reality, that almost never happens. Instead, any program that you install on your computer these days requires agreement to a long list of contractual terms, all offered on a take-it-or-leave-it basis. And those private terms often eliminate the user privileges that copyright’s public law provides. [...]

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