Vol 7 No 1 - Roger Williams University School of Law

or policies upon which the contractual regime is founded.Overall, let me make this simple point. Contract is a vitalstrategy in creating and defining digital property.V. TECHNOLOGICALLY DEFINED DIGITAL PROPERTYMore and more, technology is being used as a means ofregulating our behaviour in relation to informational products. Inhis seminal book, Code and Other Laws of Cyberspace,375Stanford University law professor Larry Lessig highlights how thedigital environment is not a given, but rather a construction ofcode writers. The “nature” we inhabit in the digital world is oneconstructed through technology and technologists. In Lessig’stheory, there are four modalities of regulation: customary norms;the market; law; and architecture. If I want to stop someone fromspeeding, I can employ the four modalities of regulation byencouraging a customary norm that speeding is bad through:advertising; raising the price of petrol; enacting a law to sayspeeding is an offence; and building a restraining architecturesuch as a mechanical limit in the car or speed bumps. It is assimple as speed bumps. Just as architecture in real space canconstrain our action, Lessig explains architecture in the digitalworld (code) can regulate what we do.Therefore, instead of relying solely on law (e.g., copyright law)to protect my informational value (e.g., software), I shouldconsider what technological mechanisms are available to regulateaccess and use of my informational product. The big players havealready begun this process and we will hear more and more aboutthe role encryption will serve in the distribution of digitalentertainment informational products through a framework ofdigital rights management. And while many advocate thattechnological restraints need to be principled and give balancedaccess to the public—in the way copyright legislation does—thelegislatures have enacted laws like the DMCA in the UnitedStates and the Copyright Amendment (Digital Agenda) Act inAustralia that serve to buttress technological constraints bymaking it a crime to deal in or provide devices that circumventtechnological protection measures. These types of laws, combinedwith code, will make technological protection measures crucial in375. Lessig, supra note 42.