Vol 7 No 1 - Roger Williams University School of Law

unknown quality i.e., informational unconscionability.382 Thepotential of self-executing contracts would also mean that stateaction would be hard to establish against the property holder andtherefore issues such as free speech would not easily be raised.A further question concerns the extent to which contract canbe used to oust fair use rights bestowed by the Copyright Act.383Does contract have the power to define digital property byremoving access and user rights granted by the Copyright Act toengage in reverse engineering of software for interoperabilitypurposes? This issue is hotly contested by different interestgroups; however, if contract does have this capacity, then itbecomes a most important strategy in defining digital propertyrights. Another issue will be the extent to which contract islimited by antitrust doctrine through its definition of digitalproperty.Furthermore, can contract oust the first sale doctrine? Thefirst sale doctrine, expressed in section 109 of the U.S. CopyrightAct384 and implied in Australian copyright law,385 allows thecopyright owner to control distribution of the tangible embodimentof copyright up to the point of first sale. For example, if I buy abook, I gain an ownership right to the book and can sell it but notreproduce it, unless I have a fair use/fair dealing right. I gainownership of the tangible book and thereby reduce the power ofthe copyright owner, but I do not gain ownership of the remainingexclusive rights of the copyright owners such as the reproduction382. See J.H. Reichman & Jonathon A. Franklin, Privately Legislated IntellectualProperty Rights: Reconciling Freedom of Contract with Public Good Uses ofInformation, 147 U. Pa. L. Rev. 875 (1999).383. See UCITA § 105 (1999); Brian F. Fitzgerald, Commodifying and TransactingInformational Products Through Contractual Licences: The Challenge for InformationalConstitutionalism, in Intellectual Property and the Common Law World 35 (CharlesE.F. Rickett & Graeme W. Austin eds., 2000).384. See also 17 U.S.C. § 202 (1994).Ownership of a copyright, or of any of the exclusive rights under a copyright,is distinct from ownership of any material object in which the work isembodied. Transfer of ownership of any material object, including the copy orphonorecord in which the work is first fixed, does not of itself convey anyrights in the copyrighted work embodied in the object; nor, in the absence ofan agreement, does transfer of ownership of a copyright or of any exclusiverights under a copyright convey property rights in any material object.Id.385. See Pacific Film Laboratories Pty. Ltd. v. Fed. Comm’r of Taxation (1970) 121C.L.R. 154 (Austl.).