Shrinkwrap contract should be preempted by the Copyright Act

Simply, because it fails the extra element test as the dissent, by Judge Timothy B. Dyk in Bowers v. Bay State, discusses and I have previously argued:

However, this extra element test fails under a shrink wrap theory, because the extra element, the bargained for exchange, is markedly absent in such a contract. [*] Here, the breach of contract action serves as nothing other than a subterfuge to control the exclusive rights of works within the subject matter of copyright for a work which failed to meet the federal act's standards for protection.

If you are interested in this issue you should read this case, Pro CD and Vault. Or you can just read my unpublished paper: Why the Contractual Protection of Ideas is Preempted by Federal Copyright (12/00).

Additional coverage via Copyfight.