This Note addresses the legality of a new kind of “shrink-wrap” End User License Agreement (EULA) contained within a computer software installation that purports to transfer copyright in works created with the software from the user of the software to the manufacturer of the software. This Note analyzes the enforceability of this type of contract in the context of Electronic Arts’ much-lauded computer game, Spore. Rather than a conventional game that relies on in-house graphic designers and animators for its content, Spore relies on the collective creativity of its millions of users to make most of the content in the game. By way of a built in three-dimensional modeler, users create advanced three-dimensional objects, including virtual organisms, buildings, vehicles, and spaceships, which are uploaded to a central server and distributed to all game users. Subsequently, the users each download copies of these uploaded objects on their local machines automatically. Hence, the users interact with content created by other users, rather than the graphic designers and animators employed by the computer game manufacturer. Because case law supports the enforcement of this kind of “shrink-wrap” license, this unique EULA represents a novel threat to the intellectual property interests of authors of creative works. Hence, this Note argues that Congress should amend Title 17, Chapter 2 of the United States Code in order to preclude the enforcement of this type of contract, to the extent that it misappropriates the legitimate intellectual property interests of authors of creative works and subverts the policy underlying federal copyright protection.
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