2003年11月29日

In Defense of Private Orderings

In Defense of Private Orderings: Comments on Julie Cohen¹s ³Copyright and the Jurisprudence of SelfHelp²



By David Friedman



Abstract



It is becoming possible for owners of intellectual property in digital form to use technological protection instead of, or in addition to, copyright to control the use of their property. Professor Cohen argues against legal changes designed to facilitate this development; I argue in favor of them.



Her argument depends in part on conventional attacks on the legitimacy, hence the enforceability, of mass market contracts, in part on the claim that such technologies threaten individual privacy and autonomy, in part on the claim that copyright preempts alternative forms of protection‹and should, since it produces more desirable outcomes.



Economic theory suggests no reason why mass market contracts should be less enforceable than individually negotiated contracts‹and computer technology, in the form of ³clickwrap² contracts, makes it easier than in the past to create a legally adequate contract in a mass market context. With the exception of technologies that monitor software use and report it, and ought, therefore, to be accompanied by suitable warnings, technological protection of software poses no more threat to privacy or autonomy than traditional forms of producer control over the characteristics of their products. A private ordering of the market for intellectual property, based on contract and technological protection, can be expected to produce both more intellectual property and greater use of existing intellectual property than the current ³one size fits all² public ordering of copyright law. Current developments in this direction ought to be encouraged, not discouraged, by the law.



[http://www.daviddfriedman.com/Academic/in_defense_of_private_orderings/defense_of_pvt_orderings.htm]
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