Codifying Copyright's Misuse Defense

This Article has described and defended a codification of copyright's misuse doctrine. The § l07(b) proposed here largely follows the case law in defining the scope and effect of the defense. In specifying that certain contractual restrictions constitute misuse, § l07(b) also pursues a policy of ensuring that fair use continues to protect our freedoms of expression. If thus codified, the misuse defense would promote the public good by making copyright rights less vague, less threatening, and ultimately less important.