Licence-Created Monopolies
Noam Shemtov · Oxford University Press eBooks · 2017
This chapter examines whether contract law may be used to override or redefine the exceptions and limitations in existing copyright laws with regard to software licences. It shows that right holders favour licensing over sales and use the licensing model to regulate the ability of licensees to utilize functional elements of the software and reverse engineer it. The chapter also explains how the software industry uses technology-based solutions to restrict reverse engineering and reproduction. The principle of the freedom of contract is examined, and the legal principles that may limit its application are surveyed. Next, the combined effect of contracts of adhesion and technological protection measures on the use of software and software products are examined. Finally, software’s unique specificities as a protectable subject matter, as a ground for a balanced juridical approach in relation to the combined effect of copyright law, contract law, and anti-circumvention provisions, are discussed.