Vol 7 No 1 - Roger Williams University School of Law

frameworks that will allow diversity of opinion is of paramountimportance to any society wishing to encourage independentthoughts and distributed (as opposed to centrally created)intelligence.And as digital property is much more essential tocommunication than real property has ever been, the culturalaspect of its construction will continue to be highlighted. Atpresent, though, these arguments are not eagerly received. Themore fruitful area for debate is in relation to the general lawdefining and refining digital property.III. THE DEFINING ASPECTS OF GENERAL (AS OPPOSED TOCONSTITUTIONAL) STATUTORY OR COMMON LAWWhile a digital property right might be constitutionalpursuant to the Copyright and Patent Clause or the CommerceClause and survive First Amendment scrutiny in the UnitedStates, Article 2 in Canada, or the implied right to free politicalspeech in Australia, it will still take definition from otherprinciples of ordinary or general (as opposed to constitutional)law. In particular, digital property rights must “fit”178 with otherfundamental principles of general law, some of which exhibit aconstitutional-like presence in terms of tradition and content.Much of the specific definition of intellectual property lawcomes through statutes. My aim here is not to rehash those lawsin detail but to look more at laws that limit those positive grantsof property. There are a number of principles of law that act toencumber digital property rights with an obligation of “diversity.”This notion is the same as explained above in relation to freespeech. Principles of general law, like antitrust/competition,copyright fair use doctrine (e.g., reverse engineering of software)and copyright misuse doctrine act to prevent extrememonopolisation or control of informational products by any oneperson. These principles of general law are dynamic in the sensethat they capture the imagination and confidence of the courtsand have been much more successful in harnessing the untoldpower of digital property rights. We must look more closely at thisarea of law, as much of the construction of digital property asplayed out in the courts is being undertaken in this space.178. See Burnie Port Auth. v. Gen. Jones Pty. Ltd. (1994) 179 C.L.R. 520 (Austl.);Ronald Dworkin, Law’s Empire (Harvard University Press 1986).