Preemptive Strike: Copyright Preemption x Contract Claims

There is an inherent tension between copyright law, which seeks to balance the interests of creators, distributors, and users of information goods, and contract law’s emphasis on preserving the freedom of parties to structure their agreements. Legal systems must decide whether, and to what extent, parties can contract around the legal norms established by copyright law.

For decades, courts have primarily addressed this tension through the Copyright Act’s express preemption provision, which prevents states from creating rights “equivalent” to copyright. While historically most courts have rejected the notion that contract claims are preempted, the Second Circuit recently found two contract claims to be expressly preempted. These decisions have been followed by federal courts in New York, leading to the preemption of numerous contract claims.

An alternative approach has also emerged: conflict preemption. In In re Jackson, the Second Circuit applied a new conflict preemption test to hold that the Copyright Act impliedly preempted a right of publicity claim. More recently, in X v. Bright Data, the Northern District of California extended the Second Circuit’s framework to hold that a contract claim based on web scraping was preempted.

This program will explore these exciting developments, which are expected to grow in importance, especially in cases involving data scraping and machine learning. Leading the discussion will be Professor Guy Rub, whose scholarship on the copyright-contract tension was cited in both In re Jackson and X v. Bright Data, and Jeremy Goldman, who recently secured dismissals of contract claims in two SDNY cases based on copyright preemption.