Unconscionability 2.0 and the IP Boilerplate: A Revised Doctrine of Unconscionability for the Information Age

In the information age, where fewer goods and more innovations are produced, intellectual property law has become the most crucial governing system. Yet, rather than evolving to fit its purpose, it has seemingly devolved—standard form contracts, governing countless creations, have formed an alternative de facto intellectual property regime. The law governing the information society is often prescribed not by legislators or courts, but rather by private entities, using technology and contracts to regulate much of the creative discourse. The same phenomena persist in other emerging areas of information law, such as data protection and cybersecurity laws. This dissertation offers a new analytical perspective on private ordering in intellectual property (IP) focusing on the rise of the IP boilerplate, the standard form contracts that regulate innovations and creations. It distinguishes between contracts drafted by the initial owners of the IP (such as EULAs) and contracts drafted by nonowners (such as platforms’ terms of use), and highlights the ascendancy of the latter in the user-generated content era. In this era, the drafter of the contract owns nothing, yet seeks to regulate the layman adherent’s creations, and sometimes even to redefine the contours of the public domain. Private ordering is expanding its governing role in IP, creating new problems, undermining the rights that legislators bestow on creators and users. While scholars often discuss the problems caused by IP boilerplate, solutions are left wanting. Inter-doctrinal solutions have been unjustly overlooked. IP scholars reject general contract doctrines as ill-equipped. Contracts scholars discard IP considerations, perpetuating consumerist perspectives. This dichotomy, deepened by the preemption doctrine, has led to the underutilization of the prominent doctrine governing standard form contracts, Unconscionability. Yet, in the aftermath of ProCD, preemption has failed to solve problems created by contract