Code 2.0

Harold Smith Reeves, 'Property in Cyberspace,' University of Chicago Law Review 63 (1996): 761.

2.

This in the end was not his conclusion. He concluded instead, not that boundaries should not be protected in cyberspace, but rather that the unconventional nature of cyberspace requires that boundaries be set along nontraditional context-specific lines. This conclusion, Reeves asserts, requires the law to understand both the environment of cyberspace and the interests of those who transact in that space; see ibid., 799.

3.

Cf. Yochai Benkler, 'Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain,' New York University Law Review 74 (1999): 354.

4.

Maureen O'Rourke has extended the idea of the technological fences that cyberspace might provide, describing techniques that websites, for example, might use to control, or block, links from one site to another; see 'Fencing Cyberspace: Drawing Borders in a Virtual World,' Minnesota Law Review 82 (1998): 610, 645–47. See, e.g., Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559 (Cal. Ct. App. 1996) (Trespass to chattel claim involving defendant's children hacking plaintiff 's confidential code to make long distance phone calls); Intel v. Hamidi, 30 Cal. 4th 1342 (Cal. 2003) (Trespass to chattels claim involving Hamidi, a former employee, using Intel's employee list-serve to send e-mails to employees); eBay v. Bidder's Edge, 100 F. Supp. 2d 1058 (D. Cal. 2000) (eBay sought to prevent Bidder's Edge, an Internet-based auction aggregation site, from use of an automated query function without eBay's authorization); Register.com v. Verio, 356 F. 3d 393 (2d. Cir. 2004) (Register.com sought to prevent Verio from using its trademark or online databases to solicit business from lists provided on the Register.com website); America Online, Inc. v. IMS, 1998 U.S. Dist. LEXIS 20645 (D. Va. 1998) (America Online alleged that IMS was sending unsolicited bulk e-mail advertisements to its members in violation of the Lanham Act, 15 U.S.C.S 1125).

5.

See, for example, Stephen Breyer, 'The Uneasy Case for Copyright: A Study of Copy right in Books, Photocopies, and Computer Programs,' Harvard Law Review 84 (1970): 281.

6.

There is a ferocious debate about whether these separate forms of regulation — copy right, patent, and trademark — should be referred to together as 'Intellectual Property.' I myself have gone both ways on this question, but currently believe it is harmful not to refer to these distinct bodies of law as 'intellectual property.' Though of course these domains are different, calling them by the same name doesn't necessarily confuse (no one is confused about the difference between a tiger and a kitty cat, even if they're both called 'cats'). More importantly, by not calling them by the same name, we lose a chance to point out inconsistencies in the way these different forms of property are treated. For example, both patent and trademark benefit from significant formalities built into each system; when you notice those formalities are absent from 'copyright,' one is led to wonder why one form of 'intellectual property' is free of formalities, while the other two are not.

7.

Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox (Stan ford: Stanford University Press, 2003) 64, 103: 'Little did I realize at the time that this was all going to have its effect on television and motion pictures and VCRs, and the whole gamut of things which are affected by copyright law, which of course weren't even thought of when we made our move. We were dealing with a fairly simple operation — Xerox. Now it's become horribly complicated.'

8.

'Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights,' U.S. Department of Commerce, 1995; hereafter 'White Paper.' George Smirnoff III ('Copyright on the Internet: A Critique of the White Paper's Recommendation for Updating the Copyright Act and How the Courts Are Already Filling in Its Most Important Shortcoming, Online Service Provider Liability,' Cleveland State Law Review 44 [1996]: 197) criticizes the White Paper's lack of completeness, inconsistencies, and apparent lack of adequate consideration; see also Pamela Samuelson, 'The Copyright Grab,' Wired (January 1996): 134, 136. By contrast, Gary W. Glisson ('A Practitioner's Defense of the White Paper,' Oregon Law Review 75 [1996]: 277) argues that the White Paper is neither a misleading summary of the state of intellectual property law nor a proposal for dramatic changes. For an extensive analysis of the copyright issues raised by cyberspace, see Trotter Hardy, 'Project Looking Forward: Sketching the Future of Copyright in a Networked World,' U.S. Copyright Office final report (1998), available at http://www.copyright.gov/reports/thardy.pdf (cached: http://www.webcitation.org/5J6iVKSro).

9.

For a summary of the changes called for by the White Paper, see Bruce Lehman, address before the Inaugural Engelberg Conference on Culture and Economics of Participation in an International Intellectual Property Regime, reprinted in New York University Journal of International Law and Politics 29 (1996–97): 211, 213–15; 'White Paper,' 17.

10.

The most important such threat is the anticircumvention provision of the Digital Millennium Copyright Act, which makes it a crime (subject to complex exceptions) to manufacture code to circumvent a copyright protection mechanism, even if the use of the underlying material itself would be a fair use; see Pub.L. 105–304, 112 Stat 2877 (1998) (prohibiting the manufacture, importation, or distribution of 'devices, products, components' that 'defeat technological methods of preventing unauthorized use').