Regulation by Contract, Regulation by Machine

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.

JEL Classifications: K11, K12

Accepted Paper Series