Could Fair Use Equal Breach of Contract?:An Analysis of Informational Web SiteUser Agreements and Their RestrictiveCopyright Provisions

I. Introduction Imagine that you are writing a thesis concerning media coverage of politics in the Middle East. You log onto the Internet and find numerous useful articles concerning the recent election in Israel on the web site of the New York Times. Deciding that these articles would be helpful, you print them out. Then, in the course of writing your thesis, you use the articles as evidence of bias in the media. Later, your thesis is published in a scholarly journal, and you win numerous accolades. However, a month later, you are served with a summons and complaint. The plaintiff, the New York Times, alleges breach of contract for your use of its articles. When, you ask, did I enter into a contract with the New York Times? This scenario is not as farfetched as it may seem. Many of the most popular web sites today are informational sites, such as those operated by the Washington Post, the New York Times, the Chicago Tribune, CNN, ESPN, and other information providers. These web sites contain traps for the unwary: online user agreements, otherwise known as terms and conditions of use, that supposedly are binding on the web site user and that contain copyright provisions that are more restrictive than federal copyright law. Although several scholars have addressed the numerous contractual problems that arise from Internet use,1 and others have addressed the impact of the Internet on federal copyright law,2 none have addressed the interrelated questions of whether these user agreements are enforceable contracts and whether the copyright provisions contained therein are enforceable under federal copyright law. This Note fills that void. A. Factual Background. Hidden Terms and Conditions? Numerous web sites provide free information and news to anyone who has access to the Internet. To protect the content of their web sites, the web site owners typically attach terms and conditions of use to their sites.3 The user can view these terms and conditions by "clicking" on a link usually located at the bottom of the web site's home, or main, page.4 For example, at the bottom of the Washingtonpost.com's home page, there is a link titled "Member Agreement and Privacy Policy" and another titled "Copyright."5 Similarly, the home page of ESPN.com contains a link titled "Terms of Use" at the bottom of the page.6 These links are underlined and their text usually appears in a contrasting color to signify that the user can "click" on them to access the terms and agreements.7 Should a user decide to click on one of these links, that user will encounter language explaining that, by using the site, the user is bound to the terms and conditions of that site. For example, the New York Times on the Web states that, "[i]f you choose to use the NYT Web service ... you will be agreeing to abide by all of the terms and conditions of this Agreement between you and the New York Times on the Web."8 The other sites contain similar language.9 Within these web site terms and conditions are various copyright provisions," For example, the Washingtonpost.com's site contains a copyright notice that states as follows: You may not copy, reproduce , distribute, publish, display, perform, modify, create derivative works, transmit, or in any way exploit any part of this service, except that you may download material from this service for your own personal, noncommercial use as follows: you may make one machine readable copy and/or one print copy that is limited to occasional articles of personal interest only. …