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The Rule of Intellectual Property Law in the Internet Economy


Joel Reidenberg


Princeton University - Center for Information Technology Policy; Fordham University School of Law


Houston Law Review, Vol. 44, No. 4, pp. 1074-1095, 2007
Fordham Law Legal Studies Research Paper No. 1012504

Abstract:     
The adaptation to the Internet economy of intellectual property law in general, and copyright law in particular, is at the center of a profound power struggle for governance that places democratically chosen legal rules against technologist-defined network rules. This essay argues that many of the technological challenges to intellectual property rights such as peer-to-peer software are a movement against democratically chosen intellectual property rules. These challenges reflect a basic defiance of the Rule of Law. In making this argument, the essay first maintains that intellectual property rights have an important public function in democracy marking political, economic and social boundaries. Next, the essay shows that the public law, as enacted by democratic government, has re-allocated intellectual property rights to adapt to the information economy. While many aspects of the new allocation of rights have been controversial such as the scope of copyright's anti-circumvention provisions, these decisions nevertheless emanate from duly constituted public authorities. The essay then analyzes the rejection of those rules by technologists and their fight to take control of rule-making. In essence, the technical community seeks to replace the state's decision on public intellectual property law with the community's own private preferences in subversion of democratic choices. The essay concludes with the normative prediction that public law prevails over network rule-making.

Number of Pages in PDF File: 23

Keywords: intellectual property, copyright, open source, free software, internet, rule of law, digital economy, digital rights management, anti-circumvention, p2p, file sharing

JEL Classification: O34, O38, K10, K20, K30, K39, K40, K42, L86, N40

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Date posted: September 11, 2007 ; Last revised: April 9, 2014

Suggested Citation

Reidenberg, Joel, The Rule of Intellectual Property Law in the Internet Economy. Houston Law Review, Vol. 44, No. 4, pp. 1074-1095, 2007; Fordham Law Legal Studies Research Paper No. 1012504. Available at SSRN: http://ssrn.com/abstract=1012604

Contact Information

Joel R. Reidenberg (Contact Author)
Princeton University - Center for Information Technology Policy ( email )
C231A E-Quad
Olden St.
Princeton, NJ 08540
United States
+1.609-258-4952 (Phone)
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
212-636-6843 (Phone)
212-930-8833 (Fax)
HOME PAGE: http://faculty.fordham.edu/reidenberg
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