The premise of this essay is a prediction: the creators of intellectual products suitable for distribution on the internet will soon come to rely less and less on intellectual-property law to enable them to charge consumers who wish access to their products and more and more on a combination of contractual rights and technological protections. The principal argument of the essay is that courts and legislatures should facilitate and reinforce that shift, but should require that creators (and consumers) when setting up such "private" arrangements abide by restrictions designed to protect the public interest.

Part I of the essay contends that sensible legal regulation of the internet requires simultaneous solution of two questions: (a) What should be the default rules governing the relative rights of creators and users? (b) In what ways (if any) should creators and users be permitted to use contracts or technology to rearrange the pattern of entitlements created by the default rules? Part II proposes a set of criteria that could be used to choose among various possible combinations of responses to those two questions. Parts III-VI rely on those criteria to propose, for regulating the uses of intellectual products on the internet, a composite regime centered on the following propositions: Creators should be accorded by the default rules only a modest set of entitlements. Creators and users should be permitted (indeed encouraged) to modify those entitlements to their mutual advantage. The parties' contractual freedom should, however, be curtailed by a set of compulsory terms.

Many of the topics addressed in this essay have been well chewed by other writers. I will touch on those topics only lightly, merely suggesting how they figure in the overall analysis, concentrating my attention on the portions of my argument that are more-or-less original.
 

Suppose Frank writes a decent novel using a standard word-processing program on his "laptop" computer. He haven't yet printed it out; it exists only as a set of "1"s and "0"s in a file on his hard drive. Grace would like access to the novel - to read it and to use it in various other ways for fun and profit. How might the law regulate the relative rights of Frank and Grace vis-à-vis the novel? (Postpone, for the moment, the question of what institutions make and apply this "law.")

One imaginable legal regime would permit Grace to use any and all means to obtain the novel and to do whatever she wished with it once she had it. She could tear the computer out of Frank's hands, copy the data file containing the novel onto a "floppy" disk, make myriad duplicates of the disk, sell them to bookstores, translate the text into Spanish, etc. Frank, in turn, would be permitted to use any and all means to frustrate Grace's stratagems. Using the vocabulary invented by Wesley Hohfeld, both Frank and Grace could be said to enjoy, in such a regime, a large set of "privileges" (governmental permissions to engage in specified activities) and an equally large set of correlative "no rights" (inabilities to invoke the aid of the state to control the behavior of the other party). n1

In a second, slightly altered regime, Grace would be permitted to do all of the things allowed above except seize the computer by force. If a digital copy of the novel came into her hands lawfully, she could do whatever she pleased with it. But she could not obtain it by forcibly depriving Frank of possession of his computer. In Hohfeldian terms, Frank would enjoy in this altered regime a "right" to invoke the aid of the state to prevent Grace from grabbing the computer, and she would assume a correlative "duty" not to grab it.

Other possible ways in which the law might alter (to Frank's advantage) their relative entitlements include:

• Grace may not obtain a copy of the novel by fraud - e.g., by telling Frank falsely that she is an agent of his publisher.
• Grace may not obtain the data through improper means (e.g., by "hacking" into Frank's computer when he connects it to a network) if he has used reasonable precautions to shield the data.
• Grace may not copy the novel - even if she has obtained a digital version of it lawfully.
• Grace may not resell a lawfully obtained copy of the novel.
• Grace may not rent a lawfully obtained copy of the novel to a third party.
• Grace may not include excerpts from the novel in an essay criticizing it.
• Grace may not mock or parody the novel.
• After reading Frank's novel, Grace may not write a novel of her own whose plot is strikingly similar.
• Grace may not independently write a novel of her own whose plot is strikingly similar.
• Grace may not use in a novel of her own a well-defined character who figures in Frank's.
• Grace may not make a movie based on Frank's novel.
• Grace may not "perform" Frank's novel -- i.e., read it out loud.
• Grace may not discuss the novel with anyone.
• Grace may not do anything at all with or to the novel without Frank's permission.

The rules that, in the United States, currently control these various issues are complex, partly because they are derived from many different sources and jurisdictions. Some are governed by state common-law rules -- the laws of torts, property, and crimes. Others are governed by state statutes -- for example, trade-secret statutes. Others are governed by federal statutes -- specifically, copyright and telecommunications laws. Still others are controlled by the First Amendment to the federal Constitution. The entitlements currently generated by these layers of norms may be summarized as follows:
 
 

Grace is forbidden to: n2	Grace is permitted to: n3
Seize Frank's computer by force
Obtain the novel by fraud
"Hack" into Frank's computer to get the novel
Copy the novel
	Resell a copy of the novel
	Rent a copy of the novel to someone else
	Quote from the novel in a critical review
	Mock or parody the novel
Aware of the novel, write a very similar story
	Independently write a very similar story
Use in her novel a well-defined character from Frank's
Make a movie based on Frank's novel
	Read the novel out loud
	Discuss the novel with others

 

A comprehensive map of their relative rights would, of course, be even more elaborate.

What accounts for this patchwork pattern of entitlements? In a very rough way, it can be traced to lawmakers' efforts to balance a familiar set of competing objectives: On one hand, they have sought to create incentives for the production of novels and other intellectual products. On the other hand, they have sought to promote the widespread dissemination of intellectual products and to create safe harbors for a variety of educational or transformative uses of those products. (A much more detailed instrumental analysis of this general sort will be ventured in Part II.) But it would be a serious mistake to attribute too much rationality to the pattern. As the chart makes clear, a wide variety of lawmakers (judges and legislators at both the state and the federal levels) have contributed to its construction -- each of whom typically has had in view only a piece of the overall system. Substantiating the claim that many features of this doctrinal regime are senseless and could easily be improved would take us far afield. n4 Suffice it to say for now that the system is far from perfect, even when measured against the goals it is conventionally thought to advance.

Another feature of the extant pattern of entitlements bears emphasis. Frank's ability to control the ways in which Grace uses his novel plainly is limited. In some senses, Frank "owns" the novel, but Grace is permitted to do many things with or to it that Frank might find objectionable. Some commentators have suggested that, in this respect, intellectual property is different from real (in both senses) property. n5 But in fact the allocation of entitlements to the "owners" and "nonowners" of land is similar to the allocation of entitlements to the owners and nonowners of novels. For example, although a landowner is commonly said to enjoy a "right to exclude" others from his premises, he is forced (in many American jurisdictions) to tolerate a wide variety of intruders: travelers on adjacent roads who find their way blocked; lawyers and health-care workers who wish to supply legal and medical services to migrant farm workers living on his land; protesters who wish to distribute leaflets in his mall; airplanes flying at a reasonable height through his airspace; etc. n6 The other entitlements customarily included in his bundle of sticks -- the "right to quiet enjoyment," the "right to lateral and subjacent support," and the right to water -- are all similarly qualified. In short, there exists (at least in the United States) no such thing as an "absolute," "pure," or "unqualified" property right -- either in ideas or in dirt.

Let's return now to the struggle between Frank and Grace. Suppose that Frank's novel is "posted" on the internet. (Ignore, for the moment, the important question of how it gets there.) How, if at all, should the entitlements in traditional settings be adjusted to take into account this new medium? For example, when Grace uses her web browser to read the novel on her computer screen (without "downloading" the data file to a disk), should she be deemed to have "copied" it in violation of section 106 of the Copyright Act? What if she does download a small portion of the novel -- say, for inclusion in a critical review? More specifically, if, using the internet, Frank makes it easy for Grace to pay him a small sum in return for the right to copy that portion, but Grace still refuses to pay the fee, should courts nevertheless excuse as a "fair use" Grace's nonpermissive copying?

A great deal of time and energy has been devoted during the past five years to questions of these sorts. Some scholars and government officials argue that, to offset the increased danger of "piracy" on the internet, the rules should be "tightened" -- i.e., more of the toggle switches should be flipped in favor of Frank. n7 Others contend equally vehemently that the rules should be "loosened" -- i.e., more switches should be flipped toward Grace. n8 In a moment, I will venture some opinions on those issues. For the time being, however, I wish merely to establish the framework for the analysis. For that purpose, the central point is that the impact upon the fortunes of Frank and Grace -- and upon the welfare of society at large -- of how the switches are set depends in important ways on the extent to which Frank and Grace are permitted to rearrange the pattern of entitlements they are initially assigned.

To illustrate, suppose for the sake of argument, that only the first three of the topics listed in the chart on page 3 are resolved in favor of Frank. Grace is forbidden to obtain the novel by force, fraud, or "improper means" but is not otherwise hampered in her ability to make use of the novel. Frank will be unhappy, of course, but he will not be wholly powerless. Those three entitlements will at least enable him to limit users' access to his creation. He may be able to employ that power to extract from Grace a variety of concessions not assigned to him by the default rules. For example, he might agree to provide Grace (through the internet) access to a website, from which she could download a copy of the novel, only if she consents to do one or more of the following:

• Pay him $10
• Pay him $.10 for every page she reads
• Pay him $.00003 times her gross income during the preceding calendar year for every page she reads
• Not resell the downloaded copy of the novel
• Not use the downloaded copy to make a second (or third) copy
• Not parody the novel
• Not criticize the novel publicly
• Not buy or read a rival's novels

Second, Frank might employ one of a growing set of technological devices to prevent Grace from using the novel in a manner inconsistent with his conditions. Devices of this sort include: "scramblers" that render copies made without permission unusable; combinations of electronic components designed to discourage "serial" copying; "crytolopes" and "trusted systems" that prevent anyone who does not have a digital "key" supplied by the producer from gaining access to the products; devices that prevent a product from being used more than a prescribed number of times or for more than a prescribed period of time; and systems for measuring (and thus charging for) the amounts that digital products are used. n10

Systems of these sorts plainly make it possible for Frank to demand payment from Grace before permitting her to gain access to the novel. In addition, they sharply reduce the risk that Grace will create additional, duplicate copies of the novel without his permission. However, at present, these technologies do not enable creators to strike bargains with users as refined as the deals that can be arranged using contracts. For example, Frank would not be able -- using extant forms of encryption -- to prevent Grace from parodying the novel while allowing her to make use of it in other ways. These limitations on the flexibility of technological protections are likely to diminish over time. For example, the techniques for tracking intellectual products are improving swiftly. As a result, it will soon be much easier for creators to monitor the ways in which their creations are being employed -- and thus to enforce contractual limitations on permissible uses. And encryption technology will likely enable creators in the future to differentiate ever more precisely permissible and impermissible activities.

Neither of these two ways of extracting concessions from users, it should be emphasized, are the exclusive province of copyright owners. (To that extent, the terms commonly used to describe some of the encryption systems -- such as "Copyright Management Systems" -- are misleading.) The producers of kinds of intellectual products that are not eligible for copyright protection - such as databases that fail to satisfy the Feist standard of originality n11 - have even greater reason to avail themselves of these options. n12

To summarize, Frank might employ either a contract or a technological device to parlay a meagre bundle of rights into a much more generous set of entitlements. The legal system might adopt any of a wide range of postures toward such deals. We might set our faces against them -- for example, by forbidding the development or use of a specified sort of encryption technology. Less drastically, we might permit the use of a specified technology but discourage it -- for example, by imposing heavy taxes on its manufacture or sale". n13 Alternatively, we might not only permit the use of that technology but encourage it -- for example, by criminalizing the manufacture or use of devices that enable others to circumvent it. Instead of adopting a blanket rule toward all uses of the technology in question, we might permit its use for some purposes but not for others. A similar spectrum of options exists with respect to "click-on" licenses. We might refuse to enforce any of them -- for example, by deciding that they are all "unconscionable" or that they are all preempted by the Copyright Statute. Alternatively, we might enforce all such license agreements. We might go even further and reinforce the usual remedies for breach of contract (damages and specific performance) with criminal sanctions -- as we have done, for example, with breaches of confidentiality by employees. n14 We might permit and enforce some sorts of licenses but not others. Finally, taking our cue from the Anglo-American law of servitudes, we might permit some sorts of agreements (but not others) to "run with" the intellectual property to which they pertain -- i.e., to be enforceable not only against the promisee, but against third parties who acquire the intellectual property from the promisee. n15

Which of these options makes most sense? It should by now be apparent that the answer to that question depends upon the magnitude of the set of entitlements assigned to creators by the default rules. Our overall goal, recall, is hold out to creators a set of incentives sufficient to induce them to produce intellectual products from which we will all benefit, but not so great as to impede public dissemination and use of those products. We might strive to achieve that happy medium by according creators a generous set of entitlements through default rules but then limiting their ability to use those entitlements to extract from users still greater rights. Alternatively, we might accord them through the default rules a minimal package of rights, but then give them wide latitude in leveraging those rights into other concessions. Many intermediate options are of course available.

In short, the question of the proper scope of intellectual-property rights on the internet and the question of the proper magnitude of contractual freedom on the internet should be understood as interdependent. Neither can be resolved sensibly without attention to the other.

Before attempting actually to resolve them, however, we need to be more precise concerning the objectives we are trying to achieve. Up to this point, we have relied upon a conventional, rough-and-ready view that we need somehow both to encourage the creation of intellectual products and to clear the channels for their dissemination. If we wish to provide lawmakers real guidance, we need a more detailed account of our ultimate ends. To that project we now turn.
 

To understand (and to evaluate) the normative theory upon which this essay depends, it is helpful to have in view the larger set of theories from which it is drawn. Section A outlines that set. Section B elaborates my particular approach.

1. Theories of (Intellectual) Property

The first approach springs from the propositions that a person who labors upon resources that are either unowned or "held in common" has a natural property right to the fruits of his or her labor - and that the state has a duty to respect and enforce that natural right. These ideas, originating in the writings of John Locke, are widely thought to be especially applicable to the field of intellectual property, where the pertinent raw materials (facts and concepts) do seem to be "held in common" and where (intellectual) labor seems to contribute so importantly to the value of the finished product. N16 Agreement upon this basic proposition, however, has not produced consensus on details. Scholars who work this theoretical vein continue to argue over such questions as: Does any sort of intellectual labor give rise to natural property rights, or must the labor be socially valuable, or unpleasant, or especially creative to support such a claim? n17 Does the creator of an intellectual product deserve to charge whatever the market will bear for access to his creation, or are her entitlements more limited? n18 Does the famous Lockean "sufficiency" proviso (or the more general no-harm principle latent in other parts of Locke's work) limit in any way the scope of the entitlements the creator acquires? n19

The principle that powers the second of the four approaches is that a policymaker's beacon when shaping property rights should be the greatest good of the greatest number. In other words, he should strive to select a set of entitlements that (a) induces people to behave in ways that increase socially valuable goods and services and (b) distributes those goods and services in the way that maximizes the net pleasures people reap from them. A modified version of this principle is the main article of faith of those lawyer/economists who continue to march under the banner of the Kaldor-Hicks criterion. The literature (both judicial and scholarly) on the law of intellectual property is rife with invocations of this ideal. Its popularity, however, has not produced consensus concerning its implications. Proponents of the utilitarian approach to intellectual property continue to argue over the proper shape of many doctrines -- ranging from the kinds of creations that should be rewarded with copyright protection to the scope of the power patentees should enjoy to control improvements on their inventions.

The heart of the third approach is that private property rights are crucial to the satisfaction of some fundamental human needs or interests; policymakers should thus strive to select the set of entitlements that most conduces to human flourishing. Much of the interest - and controversy - associated with this approach concerns the difficult job of identifying exactly which human needs or interests are both implicated by property rights and deserving of respect. Among the ideals emphasized by different theorists who have adopted this strategy are: autonomy; self-realization as an individual; self-realization as a social being; security and leisure; control over the presentation of one's self to the world; personal responsibility; identity; peace of mind; privacy (and associated opportunities for intimacy); citizenship (and the associated value of civic virtue); and benevolence. n20 The task of determining which system of intellectual-property rights would best promote the widespread realization of each of these ten ideals has only just begun. n21

The fourth approach - upon which this essay is founded - is rooted in the proposition that property rights can and should be shaped so as to help foster the achievement of a just and attractive culture. This perspective is less well known than the other three - each of which has both a familiar moniker (Labor-Desert Theory; Utilitarianism; and Personality Theory) and a famous ancestor (Locke; Bentham; Hegel). But once charted, the provenance of the fourth approach is equally impressive; theorists who have approached property rights in this spirit include Jefferson, the early Marx, the Legal Realists, and the various proponents (ancient and modern) of classical republicanism. n22 It lacks only a label to give it credibility. For that purpose, Greg Alexander offers "proprietarian" theory; my own preference is for "social-planning theory." n23

To be sure, the boundaries between these four approaches are far from precise. With a little effort, they can be shown to blur. For example, as Alan Ryan has shown, much of Locke's labor-desert argument depends upon recognition of the social advantages of inducing people to labor - and thus incorporates a utilitarian theme. Similarly, while the distinction between the personality and social-planning theories is clear enough in the abstract (the former urges the selection of property rights that help fulfill fundamental individual needs, while the latter seeks to promote a just and attractive culture), the examples of civic virtue and classical republicanism -- as well as many of the issues discussed in the following section -- suggest that they sometimes overlap in practice.

It is not my objective here to sharpen or defend those boundaries. (My sense, in general, is that the four perspectives, though not wholly autonomous, are useful as ideal types - but I will not undertake now to defend that claim.) Rather, the purpose of the foregoing quick sketch of the principal property theories has been to identify - by contrasting it with its main rivals - the methodology that undergirds this essay.
 
 

The fourth approach, to repeat, counsels crafting legal rights in general -- and property rights in particular -- so as to promote a just and attractive culture. Well, then, what are the features of a just and attractive culture? The difficulty of answering that question is, I think, the principal reason the method has not gained more adherents -- and it would be foolhardy to attempt a comprehensive response in a preface to an essay on the internet. But at least a rough sketch is essential to the argument that follows. Set forth below, in very brief form, are the components of the vision -- with emphasis (for obvious reasons) on characteristics that are related to intellectual property. Fuller descriptions of each component may be found in an essay I wrote some years ago on copyright law and in a forthcoming essay on theories of intellectual property. n24

Consumer Welfare. I begin with the proposition -- derived directly from the utilitarian approach -- that, other things being equal, a society whose members are happy is better than one whose members are (by their own lights) less happy. Applied to the field of intellectual property, this guideline urges us to select a combination of rules that will maximize consumer welfare by optimally balancing incentives for creativity with incentives for dissemination and use. That deceptively simple objective n25 does not, however, exhaust the set of appropriate aspirations for the legal system. Rather, in a good society, it would be tempered by a series of goals not reducible to "the greatest good of the greatest number." Those goals are listed below.

A Cornucopia of Information and Ideas. An attractive culture would be one in which citizens had access to a wide array of information, ideas, and forms of entertainment -- wider, perhaps, than an unregulated market in intellectual products might produce. Variety in this sense helps make life stimulating and enlivening. Access to a broad range of intellectual products is also crucial to widespread attainment of two related conditions central to most conceptions of the good life -- namely, self-determination n26 and self-expression -- both by providing persons the materials crucial to self-construction, and by fostering a general condition of cultural diversity, which (in ways best described by John Stuart Mill) enables and compels individuals to shape themselves. n27

A Rich Artistic Tradition. As Ronald Dworkin has persuasively argued, the more complex and resonant the shared language of a culture -- including, above all, its "vocabulary of art" -- the more opportunities it affords its members for creativity and subtlety in communication and thought. n28 As Dworkin suggests, recognition of that fact points toward governmental polices designed to make available to the public "a rich stock of illustrative and comparative collections of art" and, more generally, to foster "a tradition of [artistic] innovation." n29

Distributive Justice. Specification of the ways in which wealth would distributed in a just society would take us very far afield. n30 For present purposes, a much more modest (though not trivial) assertion should suffice: to the greatest extent practicable, all persons should have access to the informational and artistic resources described above.

Semiotic Democracy. In an attractive society, all persons would be able to participate in the process of meaning-making. Instead of being merely passive consumers of cultural artifacts produced by others, they would be producers, helping to shape the world of ideas and symbols in which they live. n31 Active engagement of this sort would help both to sustain several of the features of the good life -- e.g., meaningful work n32 and self-determination -- and to further foster cultural diversity.

Sociability. Recognition of the importance to the good life of self-determination does not point toward a society characterized by radical individualism; on the contrary, it suggests that we strive to cultivate a society rich in opportunities for community. To be willing and able to avail oneself of a range of life choices, one much have a secure sense of self and a capacity for reflection -- attributes most likely to be found in persons grounded in "communities of memory." Moreover, persons' capacity to construct rewarding lives will be enhanced if they have access to a variety of "constitutive" groups - in "real" space and in "virtual" space. n33

Respect. Semiotic democracy does not imply that persons should be free to manipulate the creations of others without any restraints whatsoever. Appreciation of the extent to which self-expression is often a form of self-creation should make people respectful of others' work. n34

There are tensions among some of the goals just canvassed -- for example, between the value of self-expression and the value of respect. But for the most part, I contend, they hang together. They reinforce one another and (if elaborated substantially) would together constitute a coherent picture of an attractive society. Substantiation of that bald assertion is plainly beyond the scope of this essay. But my intention is to offer, not a list of ideals that pull in inconsistent directions, but an integrated vision.

Armed with that (regrettably but inevitably) brief sketch of a set of aspirations, we can return to the problem at hand: the content of the rules that should govern nonpermissive uses of material available in cyberspace.
 

What combination of default intellectual-property rules for the internet and opportunities for contractual modification of those rules would be most likely to advance the vision outlined above? The short answer is that we can't be sure. The internet is changing very fast; we can't be certain what it will look like in a decade or even a year. For that reason, I agree wholeheartedly with those commentators who urge lawmakers to be cautious and not try to impose a permanent, comprehensive regulatory regime on this protean medium. n35

Caution is also consistent with the methodology advocated in this essay. The vision outlined in Part II is nothing more than a sketch -- or, to change metaphors, merely one contribution to an ongoing conversation about the sort of society we wish to live in. The internet is a potentially revolutionary medium -- socially, economically, and politically. Engagement in and with it is likely to alter our values. It is bound to change our senses of how we might implement our existing ideals. And it may well alter the values themselves. We should be open to such possibilities -- and should not foreclose them through premature efforts to impose order on the system.

But being cautious does not mean doing nothing. If we can nudge the system in more attractive directions -- or prevent it from drifting in pernicious directions -- we should do so, always leaving open the possibility that whatever rules we adopt will have to be modified soon. In that spirit, I propose that we move toward a regulatory regime that combines a modest (though not trivial) set of intellectual-property rights for creators with significant (though not unlimited) opportunities for contractual rearrangements of those rights.

The following three sections describe and defend specific components of that composite recommendation. While we are in the midst of those trees, however, it is important not to lose sight of the forest. The overall goal, remember, is to craft a system that, in the aggregate, helps foster a just and attractive society.
 

An important group of lobbyists, government officials, and scholars have argued that the creators and distributors of intellectual products currently enjoy too little protection against nonpermissive uses of their works on the internet. Accordingly, they have urged lawmakers -- in the United States and in the World Intellectual Property Organization -- to tighten up the copyright regime, giving the creators of original forms of expression effective protection against cyberspace "piracy." For example, they commonly advocate more generous interpretations of the terms "copying" and "distribution" (thereby expanding copyright owners' ability to control the manner in which their works are used); increasing the exposure of internet service providers for carrying infringing material; constriction of the kinds of uses of copyrighted works privileged by the fair-use doctrine; and strong proscriptions of encryption-circumventing "black boxes." n36

Most of these reforms are, I suggest, unnecessary and ill-advised -- unnecessary, because the ability of creators to collect money from people who wish to gain access to their creations on the internet can be adequately protected by contractual and technological options (discussed in Part V); ill-advised, because they will unduly impede opportunities for transformative and socially valuable nonpermissive uses of intellectual products (discussed in Part VI). This is not to suggest, however, that we should dispense with all intellectual-property rights on the web. A modest but not insignificant set of entitlements do deserve protection through the default rules. A tentative list of these is set forth below. n37

1. People who intentionally or recklessly post copyrighted material on the internet should be liable for copyright infringement.
2. Creators' moral rights of attribution and disclosure should be respected, but not their interests in integrity or withdrawal.
3. "Framing" should be deemed a form of misappropriation, but "deep linking" and "caching" should not.

There are two legitimate reasons why creators of intellectual products might complain when their works are made available without their permission on the internet. First, and most obviously, nonpermissive posting may threaten their ability to derive revenue from traditional markets for those works. Suppose, for example, that a fan of a popular musician creates a website devoted to that musician and then includes, in the collection of celebratory material, a menu of the musician's (copyrighted) recordings. A visitor to the site can, by clicking on the title of a particular recording, download to her own computer a compressed digital copy of it, which she can then play (for free) through her computer's speakers. If she has a read-write CD-Rom drive, she can use the downloaded files to prepare custom CDs, which she (or her friends or customers) can then play through home audio systems. n38 As the technology for making use of such sites becomes more widely and cheaply available, n39 the construction of sites like this plainly will erode the market for traditional musical recordings. Much the same can be said for the increasingly common practice of posting on the web "bootleg" MPEG copies of (copyrighted) movies. If it spreads, this activity clearly will erode the rental market for videotapes and videodisks -- and thus indirectly impair the revenues that can be collected by movie companies. Unless we curb behavior of these sorts, we run a serious risk of eroding incentives for creativity.

Second, some creators have justified nonmonetary interests in exercising some degree of control over how their works are disseminated. A painter or photographer may feel that the distribution to the world of multiple digital copies of his creations (the appearance of which inevitable deviates somewhat from the originals) degrades his art. A musician who believes that nothing but a live performances can convey the true spirit of his music may feel the same way about bootleg recordings. Similar concerns may be found in the letter, written by Gary Larson to the operator of website featuring his cartoons, in which he pleaded (successfully) with the operator to cease and desist. n40 In short, the values of integrity and respect may be impaired by posting works on the net against the wishes of their creators.

Current copyright law probably proscribes all of the activities discussed above. Certainly the MPEG bootleggers are making "copies" (pr perhaps "derivative works") of the movies when they set up their pirate website -- and thus run afoul the provisions of section 106 of the American Copyright Act and similar provisions in the laws of other countries. But what if the operator of such a site -- say, our hypothetical music fan -- had acquired legitimately the copies of the songs that he places on his hard drive and thereby makes available to the world. In such a case, because he did not engage in any nonpermisvie copying, he might not be deemed to have violated the Copyright Act -- although, presumably, the fans who downloaded the songs from his site would. To ensure that the person who sets up such a site does not slip through the net of liability, the delegates at the recent WIPO Conference in Geneva included a new Article 8 in their Copyright Treaty which, when given teeth through implementing legislation in the member countries, would make clear that authors enjoy the exclusive right to "authoriz[e] any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them." For the reasons suggested above, this adjustment (or clarification) of current law seems wise.

In short, copyright law has an important role to play on the internet in preventing the deliberate uploading of material without the permission of its creators. However, to address that problem, we may not need to apply to this new medium current copyright doctrine in all its glory. Copyright infringement is a strict-liability offense. If a person without permission engages in any of the activities listed in section 106 of the statute, he is exposed to a wide range of serious penalties regardless of his intent or state of mind. Wholesale adoption of this regime would render actionable many activities that pose no significant threat to creators' legitimate interests -- like posting on the web a recording of an interview taken in a café where a Bob Dylan song happens to have been playing in the background. n41 A better system would be one limiting liability to persons who engage in the activities proscribed by section 106 intentionally or with reckless disregard for the copyright status of the works they upload.

A state-of-mind requirement of that sort might also provide a solution to the problem of internet-service-provider (ISP) liability that had bedeviled both courts and commentators. n42 What happens when the subscriber to a service like Compuserve uses the company's facilities to upload -- and thus make available to the world -- infringing material? Should Compuserve (in addition to the individual subscriber) be liable for copyright infringement -- either direct or "contributory"? On one hand, as Niva Elkin-Koren has persuasively argued, imposing liability on ISPs under such circumstances would likely compel them to police the behavior of the customers. The unavoidable crudity of that supervision would, in turn, severely curtail the opportunities generated by the internet for semiotic democracy. On the other hand, enforcement of a rule against unauthorized uploading of copyrighted material would be difficult if ISPs could with impunity knowingly carry infringing material on their servers and ignore the complaints of copyright owners who become aware of infringing conduct. A rough but attractive compromise between these two concerns could be achieved by making the ISPs liable if and only if they intentionally or recklessly carry infringing material -- either by knowingly allowing it to be posted in the first instance or (more likely) by failing to remove it when notified by the copyright owners.

Finally, it should be emphasized that the usual defenses to copyright liability would continue to be available in this context. So, for example, uploading material under circumstances that would, in any other medium, be excused by the fair use doctrine (e.g., uploading short excerpts for the purposes of criticism or parody) would continue to be privileged.

Would such a regime ensure that copyrighted material is never posted on the web without the permission of the owners? Of course not. There would be leakage -- as there is through all of the barriers erected by intellectual-property law. But there is reason to be optimistic that the leakage would not become a flood. Most importantly, in the past few months, technologies capable of detecting wrongful posting of copyrighted material have become widely -- and reasonably cheaply -- available to creators. Those technologies include digital watermarks, digital fingerprinting, search engines that prowl the net looking for infringing material, and bits of code buried in digital works that (like the harp in "Jack and the Beanstalk") alert their owners when they are being copied without permission. n43 Such devices, combined with the severe penalties the Copyright Act provides for willful violations, should be sufficient to keep the leakage to tolerable levels.
 

An artist's "moral rights" are conventionally understood to include the following entitlements: (a) a "right of integrity" (a right not to have one's creations mutilated or destroyed); (b) a "right of attribution" (encompassing the rights to be given credit for one's work, to publish anonymously or pseudononymously, and not to be given credit for a work one did not create); (c) a "right of disclosure" (the right to determine when and how one's work is first released to the public); (d) a "right of withdrawal" (the authority to remove one's works from public circulation -- usually understood to carry with it a duty to indemnify the persons from whose possession it is withdrawn); and (e) a "droit de suite" (the right to collect resale royalties). No legal system in the world currently protects fully all of these entitlements, but European regimes typically shield a much larger subset of them than state or federal law in the United States. n44

Should entitlements of these sorts be protected on the internet? Entitlement (c), the "right of disclosure," seems important for the reasons similar to those explored in the preceding section: It is closely connected with creators' interests in privacy and in controlling the faces they present to the world. n45 Lack of protection for this right would also distort the creative process -- for example, by making creators unduly secretive in order to shield from premature release embryonic forms of their works. n46 Last but not least, recognition of this right is essential to protect a creator's ability to demand compensation from users of their work.

Entitlement (b) -- the "right of attribution" -- seems worthy of protection for a different reason: Permitting an author both to claim credit for work he has produced and to avoid being credited with work he has not produced seems central to the ideal of respect identified in Part II. Many of the same intuitions that underlie our understandings and customary practices concerning plagiarism also rightly make us cringe at the notion that someone could make a copy of an artifact I had posted on the web, copy it, and recirculate it under his own name. Equally worrisome is the notion that someone could copy one of my works, modify it substantially, and then recirculate it with my name still attached to it. If (as seems likely) the largely extralegal sanctions that limit the incidence of plagiarism in other media will have little grip on the internet, we should be chary of curtailing copyright protection so far as to remove all disincentives to engage in such behavior.

A firm defense of moral rights would go further. Shouldn't creators be able to object when their works are mutilated and then recirculated (even without their names attached)? n47 If you have come to regret a work you posted on the net, shouldn't you be able to withdraw it? Perhaps, but the benefits secured through the protection of such rights would be swamped by the concomitant threats to other aspects of the society we wish to promote. Specifically, the resultant curtailment of opportunities for self-expression and semiotic democracy would be severe.

Protection of the right of attribution, fortunately, would have few side-effects of this sort. Little would be lost and much would be gained by requiring net users, when they copied substantial portions of a work, to leave the name of its creator on it. But what if they modified the work sufficiently to make the creator regret the retention of his name? The appropriate norm in that context is less obvious, but the following might work: If person A creates a work, posts a copy on the internet, and indicates in the document itself the URL where it may be found, and person B then modifies the work and makes it available on the net in modified form (either in isolation or as a part of some composite work), then B must not remove A's URL -- i.e., A's indication of a site where an unadulterated version of the work may be found. It would then be A's responsibility to maintain that site. n48

Discussion of the "droit de suite" is postponed -- for reasons that will become apparent -- to Part V, infra.
 

One of the ways in which producers (and compilers) of informational products have sought to make money on the internet has been through the sale of advertisements. In the simplest form of this strategy, newspaper N creates a "homepage" that functions as an index to all of N's services. Links on that page will, when activated, take users to other pages created by N, which contain individual articles. On the index or "home" page, N places advertisements. Internet surfers who visit the site in the traditional fashion go first to the "homepage," see the advertisements, ad are then referred to advertisement-free individual stories. A more complex version of the same strategy entails posting advertisements, not merely on the homepage, but in a frame that surrounds the textual material in all subordinate pages as well. n49

At least three sorts of activities threaten the effectiveness of these strategies. First, X -- a rival of N or simply a party unrelated to N -- can establish in its own homepage links to subordinate pages in N's system. Internet users who gain access to N's system through X's homepage rather than through N's homepage thus miss the first wave of N's advertisements. Second, X may go further, placing advertisements in a frame around its own homepage -- a frame that obscures comparable advertising frames on N's subordinate pages when users link to them. Third, X may organize its system in such a way that it "caches" for substantial periods of time N's homepage -- in other words, stores N's page on X's system. The result is that there will a delay between the time when N changes its advertisements and the time when those changes appear on the version of N's page that users see when they gain access to it through X's page.

N might invoke at least two doctrines in an effort to halt these practices. n50 First, each of these activities might be characterized as "copying" (at least for brief periods of time in the memory of a computer) without permission N's copyrighted material -- and thus deemed to violate the Copyright Act. Second, N might argue that X is "misappropriating" the "hot news" contained in the articles -- which N had gathered through the expenditures of substantial labor and money -- in violation of state unfair-competition law. n51

Should N prevail under either of these theories? We are unlikely to answer that question sensibly by extrapolating from the ways in which copyright law and misappropriation doctrine have been applied in other contexts. (This is especially true with regard to misappropriation, which is a notoriously inconsistent and unpredictable field.) A much more promising strategy would ask whether application of these theories would be likely to promote the set of cultural conditions sketched in Part II.

Because all three of the activities described above would reduce N's revenue (and thus erode N's incentive to construct websites of this sort in the first instance) we should be wary of them -- for the obvious reasons that they would reduce the production of informational works. Unless the availability of these options served other, more important ends, we should interpret one or another of the available doctrines to proscribe them. n52

Do these activities serve other, important ends? With respect to "deep linking" (the first of the activities described above), the answer would seem to be yes. Deep links have two valuable functions: they make it much easier for users of the net to gain access to the sort of material they want and need; and the act of constructing them is an important way which people express themselves and help take control of the meaning of the net. Deep linking, consequently, should be permitted.

With regard to "framing," however, the answer would seem to be no. Neither self-expression nor semiotic democracy would be materially advanced by permitting deep linkers to obscure with their own advertising frames the advertisements on the pages to which they link. It is true that a ban on framing would reduce the incentives for people to set up sites like X's, which in turn would diminish to some degree the ease with which surfers could move around the internet. But this effect seems less substantial and important than the effects of the alternative: eroding N's incentive to create its site in the first instance, and impairing N's ability to control the manner in which its material is presented to viewers. So framing should probably be proscribed.

"Caching" is harder to assess, but the balance seems to tilt slightly in favor of permitting the activity -- partly because of its advantages from users' standpoints (it dramatically reduces the time that a visitor to X's site must wait before seeing N's site) and partly because the threat to N's revenues (and thus N's incentives) seems modest.

It should be emphasized that the judgments ventured in the preceding three paragraphs are tentative, and technological innovations might trump them altogether. n53 They are offered in the hope of modeling a method for addressing such questions, not as definitive answers.
 

The default rules outlined above assign to creators more entitlements than are advocated by "copyright minimalists." An internet organized on the basis of them plainly would not be a "copyright-free zone." On the other hand, the proposed regime falls far short of the package of entitlements advocated by the "copyright maximalists." Very few of the recommendations contained in the now-notorious "White Paper," for example, are included. In addition, in one crucial respect, the proposed system is less protective of creators' interests than current copyright law: It contemplates that users of the net would not be liable for copyright infringement for viewing, downloading, copying, or retransmitting any material they find on the net -- including material posted in contravention of the guidelines set forth in Section A. n54

Why withdraw that seemingly fundamental stick from the bundle of entitlements enjoyed by copyright owners? A facile response is that it is largely infeasible to detect and police putatively infringing behavior of this sort, so copyright owners would not be losing much. (More on this in a minute.) A more serious answer is that the freedom to read, copy, and (with the limited restrictions discussed in Section B, above), transform and share material one finds on the net would go far toward advancing the diverse, stimulating, playful, participatory, and egalitarian society sketched in Part II.

But what about the revenues of creators? If they can't make money on the net, because users can view or copy their creations free of charge, won't they keep their material off the net -- or, worse yet, reduce their levels of production altogether? If they had no alternative way of using the web to raise revenue, that concern would be very serious. The following two sections, however, outline an alternative system for protecting creators' legitimate interests in controlling access to their material -- a system that, compared to the copyright regime, entails fewer transaction costs, greater economic efficiency, a more egalitarian system for regulating access to intellectual products, and greater attention to the cultural values celebrated in this essay.
 
 

The principal claim of the remainder of this essay is that some kinds of contractual or technological rearrangements of the entitlements described in the preceding section should be permitted, but others should be proscribed. This section contains an illustrative set of desirable rearrangements. Part VI describes some that should be disallowed.
 

Let's begin with a relatively easy case. Should Frank be allowed to demand a fee from Grace in return for permitting her to download the novel from his website? It is hard to see why not. Surely, Frank would be permitted to demand from Grace a fee in return for providing her a "hard" copy of the novel. That, after all, is the way novelists (through the intermediation of publishers) ordinarily make money. Allowing Frank to make a similar demand for internet access to his creation would not seem to run afoul any of the values catalogued in Part II. At least provisionally, therefore, we should permit the parties to rearrange their entitlements to this extent.
 

Frank's ability to charge Grace for access to his novel will enable him to generate some income. However, unless he can prevent Grace from producing multiple copies of the novel, his revenue-gathering power will be sharply limited. Grace will buy a single copy, use digital copying technology to make virtually unlimited numbers of copies at minimal cost, and sell (or give) those copies to Frank's potential customers. Witnessing this sequence of events, potential authors who are not independently wealthy or willing to live in garrets will despair. Realizing that they will never be able to recoup the costs of creation (in the form of time, effort, word-processors, and foregone opportunities), they will abandon their craft and become lawyers. The net result is that the world will be deprived of their potential creations.

The social desirability of avoiding this familiar scenario is the primary traditional economic justification for copyright law. The problem with intellectual products, it has often been said, is that they are "public goods." Like lighthouses, they can be enjoyed by unlimited numbers of persons without being "used up," and (partly as a result) it is difficult to prevent persons who have not paid for them from enjoying them. Those circumstances are likely to lead to their underproduction. To avoid that danger, we forbid consumers to reproduce (certain kinds of) intellectual products, thereby enhancing the ability of their creators to charge for access and sustaining the incentives for their creation.

Two considerations, however, suggest that these traditional objectives of copyright law could be achieved more effectively and efficiently through the use of contracts and copy-protection technology. First, technological shields are likely to be far more effective on the net than copyright doctrine. As many observers of the new medium have noted, the ease with which digital materials can (in the absence of technological safeguards) be reproduced, the difficulty of detecting such reproduction, and the strongly anarchic culture of the net, in combination, make piracy rampant. Section IV.A., above, identified some reasons for cautious optimism about our capacity to detect and publish deliberate and large-scale nonpermissive postings of copyrighted material. n55 Barring a technological breakthrough, however, our ability to prevent ordinary users of the net from copying and retransmitting materials they find there is likely to be extremely limited. Copy protection technology -- though surely not absolutely secure -- is far more effective.

Second, transaction costs are likely to be substantially lower if we permit producers to employ the contract/technology strategy rather than limiting them to the copyright. Many of these mechanisms are essentially self-enforcing; consumers are simply unable to make use of the products unless they comply with the producers' conditions. By contrast, the total public and private costs of enforcing copyright laws on the internet -- even if it could be done effectively -- would be very large. To be sure, the contract/technology regime would not be costless; to keep ahead of hackers, producers would be obliged to continue refining their information-protecting technology. But the need to innovate -- and the associated social waste -- could be much reduced through the adoption of anti-circumvention statutes. n56

The benefits of copy protection technology are not unalloyed, however. Liberating creators to use it will likely have two regrettable side effects. First, by using copy protection technology, creators can engross greater power than they are allocated by copyright law, and permitting them to exercise those powers would threaten several of the ideals catalogued in Part II. For example, creators would be able thereby to prevent others from copying portions of their works in order to parody them -- something they most likely cannot do using copyright law. Similarly, a copyright expires at some point (currently, depending on the pertinent jurisdiction, the lifetime of the author plus 50 or 70 years). Many commentators think that term is excessive, but at least it has a limit. Copy protection technology, by contrast, would enable creators to keep their works out of the public domain forever -- thereby both reducing public access to their creations and impeding the ability of other creators to build upon them.

Second, copy protection technology (as noted above) can be employed by the creators of kinds of material that either would not be eligible for copyright at all or would enjoy only "thin" protection. The most important example is databases -- "white-page" telephone directories; compilations of primary legal materials; etc. n57 It is commonly thought that excluding such things from the ambit of copyright is wise, insofar as adequate incentives already exist for their creation. Enabling creators to circumvent that exclusion using technology may thus be socially undesirable.

For the time being, I merely note these drawbacks of permitting creators to substitute technological for legal protection. Whether they can somehow be neutralized I leave to Part VI.
 

From the standpoint of creators (and, I will argue, from the standpoint of society at large) contracts and technology have an additional potential advantage over the copyright regime. To understand it requires a brief foray into the world of microeconomics.

When the creator of an intellectual product for which there are no good substitutes (a decent novel, for example) is awarded a copyright, she becomes a monopolist. In other words, she need no longer fear that, if she charges more for each copy of her work than the marginal cost of producing it, she will be undersold by a rival producer -- because now she (or her licensees) have the exclusive right to make copies of the work. If she wishes to maximize her profits (and, for simplicity, we will assume for the moment that that is her only goal), she will thus charge substantially more than marginal cost. If she has good information concerning the potential demand for her work, she will adopt the strategy indicated in Figure 1:
 

By offering her books at price B, she is able to sell quantity F, yielding the profits represented by the shaded area. Should we be disturbed by the fact that she is able, in this fashion, to make so much money? Not at all. The whole point of intellectual-property protection (for the reasons sketch in the preceding section) is, by holding out to potential creators the chance of earning profits of this sort, to induce them to produce socially valuable things they would otherwise not produce. But adoption of this strategy is not costless. More specifically, it alters the fortunes of consumers in the fashions suggested by Figure 2:
 

Consumers able and willing to pay more than price B for the product (i.e., consumers represented by line OF) plainly are worse off than if they had been able to obtain it for the marginal cost of producing it (price C). Put differently, their consumer surplus (the difference between the value they place on the product and the price they pay for it) has been reduced from zone ACED (rectangle 1 plus triangle 2) to zone ABD (triangle 2). More seriously, consumers represented by line FH (i.e., those who are not able and willing to pay price B) are "priced out of the market" altogether. In the vernacular of economics, the result is a "deadweight loss" in the form of a loss of potential consumer surplus represented by zone DEG (triangle 3). n58

Can't our hypothetical author somehow gain access to the market represented by line FH? Isn't there some way that she could offer her work to poorer (or less eager) consumers without foregoing the profits she makes from the eager buyers? For that matter, can't she contrive some way to charge the very eager consumers (clustered close to the vertical axis on this graph) more than price B? Fine tuning of this sort is known as price discrimination. n59 The current copyright system limits the ability of creators to subdivide markets in this way, primarily through the first-sale doctrine. n60 A marginal consumer, to whom the author sells the product at a low price, may, under current doctrine, resell his copy to an eager consumer for a higher price, thereby depriving the author of the revenue she could have received from the latter. n61 Opportunities for arbitrage of this sort radically limit the author's ability to differentiate among consumers. (Some degree of price discrimination is still possible - typically by segregating the market chronologically. Thus, for example, hardcover editions of novels are typically sold at high prices to eager and wealthy consumers; after the demand for the hard-cover edition has subsided, a paperback edition is made available to less eager consumers for a much lower price. More refined versions of the same technique underlie the seemingly contorted ways in which motion pictures are marketed. n62 But the first-sale doctrine sharply limits the possibilities for non-chronological subdivisions of markets.)

If we permit our hypothetical author to limit access to her work through customized contracts and technology, her ability to engage in price discrimination will increase sharply. n63 The primary reason is that she will be able using such systems to forbid or prevent consumers from reselling the copies they purchase. Once arbitrage has been shut down, all sorts of techniques for subdividing her market become available. She can charge businesses a high price, individual consumers a lower price, and students a still lower price. She can tie prices to the frequency with which each consumer uses the product. She can establish a system of "microcharges" - under which consumers pay a small amount for each bit of information they employ. n64 The economic effects of such techniques are represented in Figure 3:
 

To milk the market to best advantage, the author divides the pool of consumers into segments, and then charges the members of each group what the author thinks they are able and willing to spend. Thus, on the simplified assumptions embodied in Figure 3, she will charge the consumers represented by line 0-U price p, charge consumers U-V price q, charge consumers V-W price r, charge consumers W-X price s, and charge consumers X-Y price t.

By engaging in price discrimination of this sort, our hypothetical author has been able to increase her monopoly profits substantially. (Compare the size of zone 1 in Figure 3 with the size of zone 1 in the Figure 1.) Plainly, that's good from the standpoint of creators. Is that bad from the standpoint of society at large? Not necessarily. Before passing judgment, we should at least consider the impact of her marketing strategies on other parties. Notice that price discrimination has substantially reduced the consumer surplus enjoyed by wealthy and eager buyers (near the Y axis), but has made the product available to a much larger set of consumers, who are now enjoying surpluses of their own. Whether total consumer surplus has increased or decreased is impossible to determine. n65 But we can say with confidence that many more consumers are now benefiting from the author's creation. To rephrase the point in terms consistent with Part II of this essay, price discrimination leads to substantial improvements in distributive justice - better approximation of the ideal of affording all persons access to works of the intellect. n66

Price discrimination has other advantages as well. Notice that triangle 3 in the Figure 3 - representing deadweight losses caused by enabling the author to wield market power - is substantially smaller than triangle 3 in the Figure 2. Moreover, the ratio of the monopoly profits enjoyed by the author to the concomitant deadweight losses (i.e., the ration of zone 1 to triangle 3) is much larger in Figure 3. So what? That means, first of all, that social welfare losses have been reduced. n67 In addition, we are getting much more bang for our buck n68 - a much larger incentive for creative activity per unit of social cost. Such a system of rules, applied to the internet, should move us faster than a copyright-based system in the directions of an informational society and rich artistic tradition.

To summarize the use of contracts and/or technological protections to enable creators to engage in price discrimination would produce the following differences from the current copyright regime:

1. It would enable creators to make more money.
2. It would increase the ratio between the incentives for creativity and the concomitant deadweight losses -- and thus should enhance net consumer welfare.
3. It would increase the likelihood that all persons would have access to works of the intellect.

The considerations reviewed in the preceding section should be sufficient to establish a prima facie case for permitting producers of material on the internet to use contracts and technology to limit the ways in which consumers use their products. Unfortunately, this is not the end of the story. Given the authority to adopt such strategies, producers would be likely to use them in ways we would find less socially beneficial. A good sense of the range of conditions producers would be likely to demand from consumers can be obtained from Mark Lemley's recent essay examining the use of shrinkwrap licenses. Lemley found that the licenses currently used by software manufacturers commonly contain terms of the following sorts:

1. Restraints on resale or rental by the consumer of his copy of the product;
2. Limits on the manufacturers' warranties;
3. Prohibitions on modifying or tampering with the product (including disassembling them or reverse engineering);
4. Prohibitions on uses of the product that would have been permitted by the application of the fair-use doctrine in copyright law;
5. Requirements that the consumer not contest the validity of the producer's copyright or patent;
6. Requirements that the user pay royalties for a period longer than would be permitted by copyright or patent law.

Perhaps we should disallow terms of the latter sort. This section explores that possibility in the following stages: Section A addresses the objections that creators are likely to voice against any limitations on their contractual freedom -- and, in so doing, introduces a set of arguments that can be harnessed in our analysis of the internet. Section B considers various procedural circumstances that might prompt us to be skeptical of some contractual terms. Section C then considers substantive reasons for skepticism. Finally, Section D takes up the difficult question of how we might go about limiting the ways in which contracts and technology can be employed.
 
 

The producers of informational products are likely to raise a hue and cry at the very suggestion of compulsory terms. We created this material, they will say. We could refuse to let anyone have access to it. Why shouldn't we be able to set as we wish the terms on which consumers will be afforded access to it? More broadly, why should we be forced to forego income in order to foster your vision of a just society; at a minimum, shouldn't such burdens be spread to the society at large? n69

The first step in meeting this collection of objections is to dispel the notion that limitations on contractual freedom on the internet would be unprecedented or anomalous. Compulsory terms are ubiquitous in American law. Examples include: implied warranties of merchantability; implied warranties of habitability in residential leaseholds; rent control; minimum-wage laws; maximum-hours legislation; bans on child labor; compulsory terms in insurance policies; manufacturers' strict liability for injuries caused by their products; and protections for mortgagors and the occupants of migrant labor camps. In all of these situations, the parties are not obliged to enter into contractual relations. (The owner of a residential building is not obliged to rent out his apartments; a lawnmower manufacturer is not obliged to sell lawnmowers; an employer is not obliged to hire anyone.) But if they choose to enter into such relations, they must incorporate in their agreements the terms in question, and courts will refuse to honor even explicit, bargained-for, and compensated waivers of those terms.

Mandatory limitations on the forms or uses of technology are equally common. In countless situations, we compel persons who supply certain commodities to the public to include specified features. Seatbelts, airbags, catalytic converters, child-proof caps, warning labels (on cigarettes and drugs), construction features specified by building codes or the ADA, safety features in electrical appliances -- the list is endless. The persons supposedly benefited by such features sometimes would happily do without them, but we refuse to allow manufacturers to omit them, and we usually forbid purchasers to disable them.

Why? What sorts of considerations could justify such severe limitations on the freedom of consenting adults? The rationales fall into six general categories. They are worth reviewing here -- both to suggest the diversity and strength of the arguments for limits on contractual freedom in general and to suggest lines of inquiry when we return our attention to the internet.