Lisa Esther Bernstein (University of Chicago - Law School) has posted Copying and Context: Tying as a Solution to the Lack of Intellectual Property Protection of Contract Terms (New York University Law Review Online, Vol. 88, May 2013) on SSRN. Here is the abstract:
This comment on Kevin Davis’ piece, “Contracts as Technology,” suggests reasons that contract provisions are less likely then he suggests to be under produced by Trade Associations and other organizations, despite the lack of intellectual property protection for novel terms. It argues that many of these groups provide their members with services tied to these contracts that make them more valuable when used by members then by non-members — a consideration that motivates members to continue to fund contract innovation, even when the contracts that are created can be appropriated for free by non-group members.