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Abstract:
While Cyberspace is, by now, well-recognized as a social and commercial environment of great promise, there is considerable debate about the form of governance that will best meet the needs of this new medium. Much of the present discussion casts this debate in stark terms -- "top-down" hierarchical rules versus spontaneous "bottom-up" coordination -- with self-ordering based on contracts and private agreements rather than public laws appearing both preferable and more likely to evolve. Following up on arguments presented by Professors Fisher and Elkin-Koren in this symposium, Radin and Wagner point out that the dichotomy between top-down and bottom-up obscures that a self-ordering regime brought about by networks of contracts cannot stably exist without an established background of laws against which to enforce these agreements. They argue -- using examples of the dispute over the allocation of domain names and the advent of trusted systems -- that Cyberspace advocates should be debating the ingredients of good mixtures of private and public ordering rather than positing the choice between state control and anarcho-cyberlibertarianism. In considering these hybrid governance systems, Radin and Wagner note that the enforcement of rules in Cyberspace will depend largely upon the ultimate remedy of banishment. This remedy, they argue, will test the restraint of territorial sovereigns to whom any banishment might be appealed; unless there is considerable agreement about baseline rules among territorial sovereigns, any self-enforcement in Cyberspace may well be unstable. They therefore conclude that a necessary ingredient for self-ordering in Cyberspace is the development of global minimal background standards of due process and public policy limits on private agreements -- and that such harmony has a better chance of emerging if advocates do not forget that contractual self-ordering cannot exist without it.

Abstract:
While Cyberspace is, by now, well-recognized as a social and commercial environment of great promise, there is considerable debate about the form of governance that will best meet the needs of this new medium. Much of the present discussion casts this debate in stark terms?"top-down" hierarchical rules versus spontaneous "bottom-up" coordination?with self-ordering based on contracts and private agreements rather than public laws appearing both preferable and more likely to evolve. Following up on arguments presented by Professors Fisher and Elkin-Koren in this symposium, Radin and Wagner point out that the dichotomy between top-down and bottom-up obscures that a self-ordering regime brought about by networks of contracts cannot stably exist without an established background of laws against which to enforce these agreements. They argue?using examples of the dispute over the allocation of domain names and the advent of trusted systems?that Cyberspace advocates should be debating the ingredients of good mixtures of private and public ordering rather than positing the choice between state control and anarcho-cyberlibertarianism. In considering these hybrid governance systems, Radin and Wagner note that the enforcement of rules in Cyberspace will depend largely upon the ultimate remedy of banishment. This remedy, they argue, will test the restraint of territorial sovereigns to whom any banishment might be appealed; unless there is considerable agreement about baseline rules among territorial sovereigns, any self-enforcement in Cyberspace may well be unstable. They therefore conclude that a necessary ingredient for self-ordering in Cyberspace is the development of global minimal background standards of due process and public policy limits on private agreements?and that such harmony has a better chance of emerging if advocates do not forget that contractual self-ordering cannot exist without it.

Abstract:
This book reveals the changing subject(s) and object(s) of commodification. It traces how the academic discourse evolved, both in its treatment of commodification as an academic topic (subject) of study and in its views of the purpose (object) of commodification; as well as how the discourse evolved in its views of the subject in a relationship of commodification (the owner) and the object in a relationship of commodification (the thing owned). The book begins by establishing a canon of commodification discourse. Debates over commodification have occurred primarily within two disciplinary frameworks: economics and cultural studies. We review the foundational works of scholars in these fields. We observe that in the two decades since these works surfaced, the subject and object of commodification have taken a distinctly cultural turn. What might broadly be called a cultural studies approach animates much of the new commodification scholarship published herein. For these scholars, commodification and culture are indelibly linked. The cultural study of commodities in motion focuses on the changing meaning of the commodity as it passes through various local and global circuits, including markets. Cultural studies theorists argue that, in many cases, individual agents, not just the hegemonic market, control those meanings. Thus, commodities are in motion both literally and figuratively. As they pass through various physical spaces, they also undergo semiotic changes. A new age of freedom through commodification, or what Arjun Appadurai has termed commodity resistance? According to some, yes. Read as a whole, the essays in the latter half of this volume suggest an emerging new conception of human flourishing itself: today, demands for equality include a right to compensation and control in the world's markets. This rhetoric hearkens back to old-style market-liberationism. The question is if, and how, they are different.

Commodification, property, intellectual property, markets, law and economics, law and culture, cultural studies, information studies

Abstract:
Two potentially widespread phenomena, mass standardized contracts and digital rights management systems, could have dramatic impact on how the law of property and contract regulates the distribution of intellectual property. This paper argues these phenomena motivate a more careful consideration of (1) their effect on the knowledge-generation incentives that underlie intellectual property, (2) which aspects of the present property and contract regimes are default, waivable rules and which are inalienable entitlements, and (3) whether legislative approval of regulation by machine is best interpreted as a revision of the law of intellectual property or as an attempt to undermine it.

Abstract:
Information is being assimilated to the physical world. Digital information is a physical state of a hard drive; genetic information is a chemical molecule. This assimilation of information to the physical world is proving useful for those who want to expand the scope of information property. One expedient is just to find that more things count as tangible objects in which information can be fixed; e.g., determining that when information exists in RAM it is a "copy" for purposes of copyright. A second expedient is getting people to accept real estate analogies, with their connotations (at least to lay people) of absolute control. A prime example here is "cybersquatting"; another is the prevalent analogy (inscribed in the DMCA legislative history) between using information without permission and stealing a physical object. Finally, the latest expedient is simply to redescribe the information as a physical object, or to collapse the distinction between information and physical object. This expedient is seen in a range of cases, described in this paper, including the patenting of computer programs, the patenting of genes and DNA fragments, and the use of trespass to chattels doctrine to protect databases. Information propertization has traditionally been considered a matter of balancing: determining the right amount of monopolization, with the understanding that there is always a necessarily uncontrolled public domain. The strategy of assimilating information to the realm of physical objects and to physical property enables proponents of propertization to bypass this traditional balancing rhetoric and to expand the scope of propertization without having to argue explicitly about the benefits of control on the one hand versus the benefits of free competition and flow of information on the other.

The collapse of the distinction between information and physical objects is also having an effect on contract. Traditionally a contract has been conceived of as a text about a transaction in goods or services, where the goods or services are a separate entity from the text. In the networked environment, the terms under which goods or services are distributed are becoming indistinguishable from the goods or services themselves, and the distinction between goods and services is itself collapsing. Terms are part of the product/service, not a text about it. Terms propagate along a chain of distribution and the proponent of the terms intends them to bind everyone who comes into possession of the product/service. Moreover, terms become technological, rather than textual, constraints when digital rights management systems are implemented. These developments are further problematizing the traditional conception of contract as based on voluntary agreement on textual terms.

Abstract:
Our current legal discourse on intellectual property needs to expand beyond propertization policy to include competition and free speech policy. Recent legal strategies in the U.S. have tried to avoid the limits copyright law by appropriating arcane real property torts and by mass promulgated contracts. If effective, such "laws" would supersede the official regime of intellectual property. In order to remain relevant in light of such developments, legal discourse must consider which aspects of the present intellectual property and contract regimes are default, waivable rules and which are inalienable entitlements. As one method for motivating a consideration of the limits of the waivability of default rules, I present a framework for considering whether such superseding regimes could be efficient. I argue that questions of efficiency implicate hard issues of pre-emption by federal law, as well as issues of competition and free speech. I also outline some categories of the most plausible candidates for inalienable rights. Finally, I argue that legislative approval of the regulation of intellectual property by machine poses a separate threat to the official copyright regime.

Abstract:
Copyright has traditionally and historically been viewed as a public domain containing discrete islands of propertization, but some today intuitively see it instead as a presumptive realm of propertization, in which there are some holes (non-propertization of ideas, facts, and functional modalities, and exceptions such as exhaustion and fair use). Taking this propertization perspective as its starting point, this article presents a proposal about the holes. The proposal suggests that the holes in copyright can be viewed as the solution to a coordination problem: firms desire to lock up all their own past information production but need access to information produced by others as inputs to their own future information production. Firms in this situation (hypothetically and perhaps in actuality) coordinate to achieve legislation allowing all firms some access to information produced by others. The proposal has the corollary that firms&apos' attempts to get around the holes in copyright can be seen as defection from the legislative solution.

Abstract:
Contracts in electronic commerce do not look like the traditional contract theory picture of a meeting of the minds or autonomous consent. Increasingly, deals are being made between a human and a computer, or between two computers managed only remotely by humans. This paper addresses the implications of that trend on our understanding of contractual commitment, and on the law that determines which commitments are binding.

Specifically, the paper addresses (a) "click wrap" contracts, which purport to be formed by on-screen acts such as clicking on a button labeled "I agree," or even by the mere act of visiting a web site; (b) "machine-made" contracts, which are formed directly by software programs acting as "agents" for humans or for firms; and (c) "viral contracts," in which restrictions on use are built directly into a software product or other digitized information content, thereby purporting to bind all subsequent users (as well as the initial purchaser). Each of these has analogies in pre-electronic law -- for example, in contracts of adhesion; in the actions of shipping clerks in the so-called "battle of the forms;" and in covenants running with real property. But each of these pre-electronic practices is usually viewed as an exception to our "normal" picture of contract formation. The current trends in electronic contracting threaten to make those exceptions the rule.

This paper distinguishes between autonomy-based theories of contract, in which all of the above practices are highly problematic, from efficiency-based theories, in which many of these practices are not (necessarily) problematic at all. It also draws an analogy to Calabresi and Melamed's distinction between property rules and liability rules: the contract-formation issue is, in many respects, a question about what one party may or must do in order to alter the legal rights of another. Finally, the paper also describes and critiques some proposed legislative solutions, including the Uniform Computer Information Transactions Act (UCITA) and the Uniform Electronic Transactions Act (UETA).