[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]
Urheberrecht: Verhaeltnis technischer/juristischer Schutz
- To: "'debate@fitug.de'" <debate@fitug.de>
- Subject: Urheberrecht: Verhaeltnis technischer/juristischer Schutz
- From: Johannes Ulbricht <Johannes_Ulbricht@csi.com>
- Date: Tue, 22 Jun 1999 10:59:22 +0200
- Comment: This message comes from the debate mailing list.
- Sender: owner-debate@fitug.de
1. In Defense of Private Orderings: Comments on Julie
Cohen's "Copyright and the Jurisprudence of
Self-Help"
David Friedman
Berkeley Technology Law Journal
Boalt Hall, UC Berkeley
http://www.law.berkeley.edu/btlj/
Fall 1998, vol. 13, iss. 3
http://www.law.berkeley.edu/journals/btlj/abstract/133fried.html
btlj@www.law.berkeley.edu
(510) 643-6454
Berkeley Technology Law Journal
REF: ULRP9900002
ABSTRACT:
It is becoming possible for owners of intellectual
property in digital form to use technological
protection instead of, or in addition to, copyright to
control the use of their property. Professor Cohen
argues against legal changes designed to facilitate
this development; I argue in favor of them.
Her argument depends in part on conventional attacks
on the legitimacy, hence the enforceability, of mass
market contracts, in part on the claim that such
technologies threaten individual privacy and autonomy,
in part on the claim that copyright preempts
alternative forms of protection-and should, since it
produces more desirable outcomes. Economic theory
suggests no reason why mass market contracts should be
less enforceable than individually negotiated
contracts-and computer technology, in the form of
"click-wrap" contracts, makes it easier than in the
past to create a legally adequate contract in a mass
market context. With the exception of technologies
that monitor software use and report it, and ought,
therefore, to be accompanied by suitable warnings,
technological protection of software poses no more
threat to privacy or autonomy than traditional forms
of producer control over the characteristics of their
products. A private ordering of the market for
intellectual property, based on contract and
technological protection, can be expected to produce
both more intellectual property and greater use of
existing intellectual property than the current "one
size fits all" public ordering of copyright law.
Current developments in this direction ought to be
encouraged, not discouraged, by the law.