Last week we sent a letter to the Oregon legislature addressing its recently re-introduced link tax bill, which would (like all ‘link tax’ bills) create a new right for news publishers to sue digital companies that index and link to news sources without prior permission. Our letter warned that it was unwise to pass the bill because it would be blocked by federal law. Section 301 of the Copyright Act expressly preempts any state law that creates a duplicative copyright regulation, and the Supremacy Clause ensures that no state can create laws that directly contradict clear federal prerogatives. The fair use right to crawl, index, and link to public websites is a well-established right under federal copyright law, so Oregon’s attempt to erect a toll both on the internet is a dead letter.
More than a century ago, book publisher Bobbs-Merrill tried something similar, to make its own local copyright rules and nullify the federal rights of lawful book purchasers, regardless of what the federal copyright law said. Rather than pass a law through a state legislature (what a pain!), Merrill just printed a stern legal warning on every copy of one of its books: “The price of this book at retail is $1 net. No dealer is licensed to sell it at a lower price, and a sale at a lower price will be treated as an infringement of the copyright.” The Supreme Court was not impressed, explaining, “In our view, the copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose, by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of contract.”
The great state of Oregon can’t obstruct fair use by an act of its legislature, and Bobbs-Merill couldn’t do it with an ersatz contract even at the dawn of the Lochner era, but web publishers continue to seek an end-run around federal copyright law and its pesky fair use right. They’re hoping to find it via “preference signals” using online standards like robots.txt to block even “good bots” like the Wayback Machine, technical measures like Cloudflare’s “Pay to Crawl” to demand license fees from web bots, or, in the closest thing to a Bobbs-Merrill strategy, asserting that the unilateral “terms of service” linked in small-print on every website are an enforceable contract that magically binds every person (or robot) that touches them, regardless of their consent. If these strategies succeed, the publishers will have achieved something truly remarkable: nullifying a federal right by coordinated private action.