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Urheberrecht: Verhaeltnis technischer/juristischer Schutz

1. In Defense of Private Orderings: Comments on Julie
        Cohen's "Copyright and the Jurisprudence of

     David Friedman

     Berkeley Technology Law Journal
     Boalt Hall, UC Berkeley
     Fall 1998, vol. 13, iss. 3

     (510) 643-6454
     Berkeley Technology Law Journal

     REF: ULRP9900002

     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.