Robert W. Gomulkiewicz, Fostering the Business of Innovation: The Untold Story of Bowers v. Baystate Technologies, 7 Wash. J. L. Tech. & Arts 445 (2012), https://digitalcommons.law.uw.edu/faculty-articles/67
Washington Journal of Law, Technology & Arts
copyright, shrinkwrap licenses
Perhaps the law review literature does not need another article on the Federal Circuit’s case [320 F.3d 1317 (Fed. Cir. 2003, cert denied, 123 S.Ct. 2588 (2003)]. That case has received more than its share of attention from commentators, all criticizing Judge Rader’s majority opinion and most extolling the virtues of Judge Dyk’s dissent. Despite the storm of scholarly criticism, however, courts have followed Judge Rader’s opinion.
This Article tells the untold story of why courts have been wise to do so. The Article explains how commentators have argued that federal intellectual property law should have preempted Bowers’ claims for breach of a shrinkwrap license prohibition on reverse engineering. Instead, Judge Rader’s majority opinion eliminated Bowers’ copyright claim by refusing to award Bowers any remedies for copyright infringement and hinted that in many instances contract damages for breach of a prohibition on reverse engineering would be de minimus. By using remedies rather than federal law preemption, Judge Rader’s approach achieved a result that was fairer to the parties and more congruent with sound innovation policy and the business of innovation.