Vol 7 No 1 - Roger Williams University School of Law

ight. First sale is an important distributive principle and to someextent software licensing challenges this distributive mechanism.Software is generally licensed, not sold, as is an ever increasingvariety of information products. We are sold access or user rightsto information rather than tangible ownership rights. This isdone through a contractual user agreement/licence, whichstipulates the user rights of consumers. The contractual licenceallows greater control over the exploitation of the informationalproduct. On one hand, it could be that contract cannot be used tooverride such a fundamental principle of copyright law.Informational products are either sold or leased. In DSCCommunications Corp. v. Pulse Communications, Inc.,386 the courtsuggested that contract can be used to oust first sale.387Lastly, there is technologically created property. Once again,code has the power to define and enforce, through self-execution,access and user rights in accordance with the values of the privatecorporation setting the code. In this situation, the Constitution isunlikely to provide the values as there is no state actor, and inmany cases, no need to use a court for enforcement purposes.However, if contract is intertwined with the coded distribution ofinformation, there may be points at which constitutional orgeneral law values can be argued. In the absence of applicableconstitutional doctrine, statutory law or common law, technologywill be used to construct property rights in the vision of theprivate corporation. This is the point at which Lessig suggests weneed to legislate for digital constitutional values. Likewise,Berman has suggested that we need to invoke principles of publicconstitutionalism in disputes emanating from the privatesphere.388It is worth citing two examples to give further insight onthese issues. There is the case where a large ISP blocks outunsolicited e-mail sent by a marketing firm (spam), who thenargues that such action is an infringement on free speech.389 The386. 170 F.3d 1354 (Fed. Cir. 1999).387. See id. at 1361.388. See Berman, supra note 380, at 1290 (calling this notion ‘constitutiveconstitutionalism’: the idea that the Constitution might appropriately be viewed as thetouchstone for articulating constitutive values and for structuring public debate aboutfundamental social and political issues).389. Cyber Promotions, Inc. v. Am. Online, Inc., 948 F. Supp. 436, 438 (E.D. Pa.1996).