Digital Commons Network^™

Copyright, Free Expression, And The Enforceability Of “Personal Use-Only” And Other Use-Restrictive Online Tou, Bradley E. Abruzzi

Bradley E Abruzzi

Expression is simultaneously creative and referential. It is copyright’s task both to supply ownership incentives sufficient to promote the creation of expressive works, and to carve out creative (and for that matter, expressive) space from those rights for subsequent creators. Fair use and uses of copyrighted content that the Copyright Act has traditionally privileged are therefore themselves critical to expression. Purveyors of expressive content on the World Wide Web would challenge copyright’s careful balance by conditioning access to content on the user’s acceptance of nonnegotiable, contractually binding terms of use (“TOU”). Website TOU commonly impose “personal use-only” restrictions on users …