In the information age, where fewer goods and more innovations are produced, intellectual property law has become the most crucial governing system. Yet, rather than evolving to fit its purpose, it has seemingly devolved—standard form contracts, governing countless creations, have formed an alternative de facto intellectual property regime. The law governing the information society is often prescribed not by legislators or courts, but rather by private entities, using technology and contracts to regulate much of the creative discourse. The same phenomena persist in other emerging areas of information law, such as data protection and cybersecurity laws.
This dissertation offers a new analytical perspective on private ordering in intellectual property (IP) focusing on the rise of the IP boilerplate, the standard form contracts that regulate innovations and creations. It distinguishes between contracts drafted by the initial owners of the IP (such as EULAs) and contracts drafted by nonowners (such as platforms’ terms of use), and highlights the ascendancy of the latter in the user-generated content era. In this era, the drafter of the contract owns nothing, yet seeks to regulate the layman adherent’s creations, and sometimes even to redefine the contours of the public domain.
Private ordering is expanding its governing role in IP, creating new problems, undermining the rights that legislators bestow on creators and users. While scholars often discuss the problems caused by IP boilerplate, solutions are left wanting. Inter-doctrinal solutions have been unjustly overlooked. IP scholars reject general contract doctrines as ill-equipped. Contracts scholars discard IP considerations, perpetuating consumerist perspectives. This dichotomy, deepened by the preemption doctrine, has led to the underutilization of the prominent doctrine governing standard form contracts, Unconscionability. Yet, in the aftermath of ProCD, preemption has failed to solve problems created by contracts in IP settings, while Unconscionability has evolved from a legal marginality to a coherent concept.
Inspired by the Israeli purposive approach to unconscionability, this analysis aims to resurrect unconscionability as a pragmatic solution to problems created by IP boilerplate. According to this solution, the question of unconscionability is examined by asking, substantially, whether the provision benefits the relevant IP policies or negates them. Drawing on moral foundations, this solution seeks to avoid utilitarian biases and invites discourse between competing approaches. As a legal standard applicable to various relationships, even those that are nonconsumer based, it accommodates the dynamic adjustments often required when IP policies seek to address contemporary problems.
While IP scholarship has discarded unconscionability as ill-equipped, this dissertation suggests that it is an accessible solution that can accommodate extra-contractual notions. Precisely because the doctrine is rooted in contract law, its flexibility and broad applicability is why it could serve as a universal solution to myriad problems created by appropriating contracts. Adopting Unconscionability 2.0 would allow U.S. case law to align the roots of the doctrine with the needs of the information age.
