Vol 7 No 1 - Roger Williams University School of Law

These laws also make an important statement aboutprinciples in our legal system and the notion of constitutionalism.Principles of law provide us with guidelines forregulating/mediating an exercise of power. They come in thetraditional constitutional variety (relating to an exercise ofgovernment power: vertical constitutionalism), but also in a muchmore “private sphere” common law or statutory variety: horizontalconstitutionalism. Examples of the latter are common lawprinciples such as reasonable care, unconscionability and unjustenrichment or statutory principles such as antitrust and fairuse/dealing. While this group of principles is not seen asconstitutional law in the strict sense, they represent principles ofconstitutionalism (guidelines for regulating power relations)179and will be increasingly important in this form ofconceptualization to the development of a theory of digitalconstitutionalism (discussed below). In short, non-constitutionalprinciples of ordinary or general law as laid out in statutes orjudicial decisions will bring definition to digital property. Theinterstices of ordinary law and the Dworkinian notion of “fit” bringmuch understanding to the defining process of digital property.180A. Antitrust/Competition LawThere is an inherent tension between IP law that creates aform of monopoly and antitrust or competition law that monitorsthe power of monopolies in the market place.181 It is becomingincreasingly apparent that digital property will take a significantaspect of its definition from antitrust law or similar doctrines likecopyright misuse, which is a defence to an action in copyright.Antitrust or competition law, then, is the first fundamentalprinciple to consider. Section 2 of the Sherman Act182 provides179. Michel Foucault, Power/Knowledge (Colin Gordon ed., Pantheon Books 1980)(1972).180. See generally Maggbury Pty. Ltd. v. Hafele Australia Pty. Ltd. [2001] H.C.A.70 (employing restraint of trade doctrine in relation to a contractual obligationconcerning information).181. Alcatel USA, Inc. v. DGI Technologies, Inc., 166 F.3d 772 (5th Cir. 1999)(discussing the notion of copyright and patent misuse as defences to actions forinfringement rather than causes of action in themselves).182. 15 U.S.C. § 2 (1994).Section 2. Every person who shall monopolize, or attempt to monopolize, orcombine or conspire with any other person or persons, to monopolize any partof the trade or commerce among the several States, or with foreign nations,