Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
to digital property. As well, free speech, where constitutionallyentrenched, has the potential to rigorously refine digital property,but has yet to fully achieve this outcome.One of the most crucial points to appreciate in defining digitalproperty is the role of concepts of statutory or common law (nonconstitutionallaw). As the discussion of antitrust and fair useprinciples highlights, general law will play an aggressive role indefining the boundaries of digital property and has the potentialto infuse it with a diversity ethic designed to facilitate distributedintelligence and democratic society.Next, we need to understand how contract and technology willcoalesce in the digital world to refine access and user rights—toimplement the emerging pay-per-view world/culture in which fairuse rights evaporate in the face of information user rightsdistributed through digital rights management systems rooted inencryption and reinforced by anti-circumventions laws. Facedwith this emerging technology based distribution of digitalproperty, we are forced to ask whether “any” information at allshould be open to be freely accessed or copied? If we answer “yes,”then we must advocate digital rights that enhance these socialattributes. This challenges us to propose principles of digitalconstitutionalism: on one hand, we must question howinformational power should be exercised and on the other, howvalue should be protected? For many of us, complete ownershipwill not be appreciated. A negotiated multitudinous distributednotion of ownership is sought in which the cultural dynamic ofinformation must be appreciated.In the final reckoning, the ultimate boundary of digitalproperty will remain a hotly contested legal concept in whichmany aspects of law and culture will be presented. The more werealise the inherent and incredible discursive nature ofinformation and informational products, the more we will look fordiversity in the construction and use of digital property, as well asthe principles that will guarantee this diversity against abackdrop of what might be termed “digital constitutionalism.”
What the Future Holds: PolicyChoices in the Global E-MarketplaceMaureen A. O’Rourke *This essay’s title is a misnomer. No one knows “What theFuture Holds” in the global marketplace. We can, however, makesome educated guesses about the issues that will assumeparticular importance in the next year or so. Thus, the essaymight be more accurately titled, “What May or May Not Be theImportant Issues in Internet Commerce in the Next Year or So”—less catchy, admittedly, but closer to the truth.I suspect that policymakers will spend much of their timefocusing on three related questions: (i) access (in at least threedifferent forms); (ii) how to encourage e-commerce generally and(iii) whether e-commerce in information products implicatesconcerns different from those arising in the sale of goods online.This essay reviews issues under each one of these categories. Thegoal is primarily to identify the debates rather than to suggestsolutions. E-commerce raises complex issues not amenable tosimple solutions in an essay and, indeed, that will require carefulstudy over time.I. QUESTIONS OF ACCESSE-commerce raises questions of access in a number ofdifferent forms. First, e-tailers generally would like to offer theirproducts to the largest number of potential purchasers possible. Ifmany consumers do not have access to the technology that allowsthem to connect to the Internet in an effective way, the marketwill be smaller than it otherwise would be, and therefore, less*Professor of Law, Associate Dean for Administration & Graduate Programs, MichaelsFaculty Research Scholar, Boston University School of Law. Many thanks to DavidRice for inviting me to the symposium, Information and Electronic Commerce Law:Comparative Perspectives, and to my research assistant, Casey Caldwell, for his help.237
- Page 114 and 115: unjustifiable anti-competitive cond
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- Page 122 and 123: In response to Intel’s argument t
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- Page 152 and 153: this value is difficult to apportio
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- Page 158 and 159: implemented. As this section will h
- Page 160 and 161: ight. First sale is an important di
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- Page 168 and 169: ural and remote areas, where access
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- Page 172 and 173: decrease innovation.30 On the other
- Page 174 and 175: could be called a trespass, since a
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- Page 178 and 179: Universal Music Group uses software
- Page 180 and 181: Taking UCITA on the Road: WhatLesso
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- Page 184 and 185: It is against this background that
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- Page 188 and 189: as well, such as the American Bar A
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- Page 192 and 193: enactment of the draft. This led to
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- Page 212 and 213: worth a thousand words. Picture a d
to digital property. As well, free speech, where constitutionallyentrenched, has the potential to rigorously refine digital property,but has yet to fully achieve this outcome.One <strong>of</strong> the most crucial points to appreciate in defining digitalproperty is the role <strong>of</strong> concepts <strong>of</strong> statutory or common law (nonconstitutionallaw). As the discussion <strong>of</strong> antitrust and fair useprinciples highlights, general law will play an aggressive role indefining the boundaries <strong>of</strong> digital property and has the potentialto infuse it with a diversity ethic designed to facilitate distributedintelligence and democratic society.Next, we need to understand how contract and technology willcoalesce in the digital world to refine access and user rights—toimplement the emerging pay-per-view world/culture in which fairuse rights evaporate in the face <strong>of</strong> information user rightsdistributed through digital rights management systems rooted inencryption and reinforced by anti-circumventions laws. Facedwith this emerging technology based distribution <strong>of</strong> digitalproperty, we are forced to ask whether “any” information at allshould be open to be freely accessed or copied? If we answer “yes,”then we must advocate digital rights that enhance these socialattributes. This challenges us to propose principles <strong>of</strong> digitalconstitutionalism: on one hand, we must question howinformational power should be exercised and on the other, howvalue should be protected? For many <strong>of</strong> us, complete ownershipwill not be appreciated. A negotiated multitudinous distributednotion <strong>of</strong> ownership is sought in which the cultural dynamic <strong>of</strong>information must be appreciated.In the final reckoning, the ultimate boundary <strong>of</strong> digitalproperty will remain a hotly contested legal concept in whichmany aspects <strong>of</strong> law and culture will be presented. The more werealise the inherent and incredible discursive nature <strong>of</strong>information and informational products, the more we will look fordiversity in the construction and use <strong>of</strong> digital property, as well asthe principles that will guarantee this diversity against abackdrop <strong>of</strong> what might be termed “digital constitutionalism.”
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