Private Law Theory

INTRODUCTION
… In a series of articles, Samuelson developed a framework for addressing these issues, proposing principles to guide courts in determining when copyright should override contractual restrictions. In essence, she argued that mass-market license restrictions, which undermined the core objectives of copyright policy, should be overridden. This straightforward principle, guided by copyright fundamentals, offers a useful standard for navigating the copyright/contract interface. This approach is gaining increasing relevance in addressing some of the emerging copyright/contracts disputes in the new GenAI landscape.

This Article proceeds as follows: Part II describes the rise of private ordering as a dominant framework for governing creative works and explains the complex tension between copyright and contracts. It further discusses the theoretically informed, yet pragmatic approach proposed by Samuelson for resolving such conflicts. Part III demonstrates how this approach could assist in resolving emerging controversies involving the use of copyrightable materials for training GenAI systems. Finally, Part IV concludes.

Elkin-Koren, Niva, Back To The Future: Navigating The Copyright/Contract Interface In The Generative Ai Era (2024) 39(3) Berkeley Technology Law Journal 1137.