Vol 7 No 1 - Roger Williams University School of Law

implemented. As this section will highlight, the notion of digitalconstitutionalism, which seeks to implement a principledallocation of power/rights over information, will combine aspectsof public constitutionalism, statutory and common lawadjudication and perhaps new legislation in relation totechnology/code.Where digital property rights are founded on legislative actionpursuant to the IP clause, then constitutional values inherent inthat clause, as well as notions such as free speech, will need to beweighed in the balance. Furthermore, general law principles ofaccess and user rights, as evidenced by fair use doctrine andantitrust law, will provide definition to any legislated digitalproperty right. I have argued above that legal principles such asantitrust and fair use have the potential to implement/guaranteea diversity ethic in the digital environment.For digital property rights constructed or extended throughcontract, the role of constitutionally entrenched rights and valueswill be more remote. If the contract is simply building onlegislative rights, then the constitutional issues will be relevant tothat aspect, but what of the situation where contract purports tocreate digital property rights, e.g., in the case of raw data. Firstwould come the question of whether this conflicts with theConstitution or legislation, such as section 301 of the CopyrightAct; this might require further consideration as to whether it is anegotiated or mass market licence, the latter being more likeconflicting legislative action.381 However, assuming we take theview enunciated in ProCD that such a contractual process islawful, then we are left to find values in the field of contract law.A vigorous notion of unconscionability developed to address thespecific needs of information contracts might provide a way ofensuring that access and user rights are maintained. However, ifcontract is tied with technology and the contract is self-executingthrough technology—meaning access to data is denied if copyingfor fair use occurs—then enforcement of such a principle willrequire the user to litigate and enforce an emerging principle of381. Custom or negotiated software licences are much more specific andcontractual in nature. Mass market or non-negotiated licences, on the other hand,often act like a multilateral treaty or legislation to guarantee a uniform customamongst all users. Some argue the latter are being preempted due to their legislativelikecharacter while the former are more contractual in nature and therefore notpreempted.