Vol 7 No 1 - Roger Williams University School of Law

. . . .For again, in real space, one might well believe that aset of obligations imposed through contract wasuntroubling. Conditioned by antitrust law, limited byprinciples of equity, cabined by doctrines of mistake andexcuse—the obligations would be checked by a courtbefore the constraints were made effective. There is astructural safety check on obligations of this sort, whichensures that the obligations don’t reach too deep. Whenintervening to enforce these obligations, a court wouldcarry with it the collection of tools that contract law hasdeveloped to modify, or soften, the obligations thatcontract law might otherwise enforce.The cyberspace analog has no equivalent toolbox. Itsobligations are not conditioned by the public values thatcontract law embraces. Its obligations instead flowautomatically from the structures imposed in the code.These structures serve the private ends of the codewriter; they are a private version of contract law. But asthe Legal Realists spent a generation teaching, and as weseem so keen to forget: contract law is public law.394The point to make is that technology will play a significantrole in defining digital property and it is imperative that thevalues of such technologically constructed digital property beclearly enunciated. These are values that will underpin theconstruction of culture and knowledge, and define the frameworkfor the creation and transfer of wealth through digitisedinformational products.CONCLUSION: THE ULTIMATE BOUNDARY? A QUESTION OF DIGITALCONSTITUTIONALISMThe purpose of this article has been to seek a betterunderstanding and definition of digital property. As the foregoingpages show, this is a complex process of reasoning.At a more traditional constitutional level, the intellectualproperty enumerating clauses will set limits and bring definition394. Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113Harv. L. Rev. 501, 530-31 (1999) (footnotes omitted).