See John Perry Barlow, 'The Economy of Ideas,' Wired (March 1994), 129; see also John Perry Barlow, 'Papers and Comments of a Symposium on Fundamental Rights on the Information Superhighway,' Annual Survey of American Law 1994 (1994): 355, 358. Barlow argues that 'it is not so easy to own that which has never had any physical dimension whatsoever,' unlike traditional forms of property. 'We have tended to think,' he adds, 'that copyright worked well because it was physically difficult to transport intellectual properties without first manifesting them in some physical form. And it is no longer necessary to do that.'
See Mark Stefik, 'Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us to Rethink Digital Publishing,' Berkeley Technology Law Journal 12 (1997): 137; Mark Stefik, 'Trusted Systems,' Scientific American (March 1997): 78; Mark Stefik, 'Letting Loose the Light: Igniting Commerce in Electronic Publication,' in Stefik, Internet Dreams, 220–22, 226–28.
See Joel R. Reidenberg, 'Governing Networks and Rule-Making in Cyberspace,' Emory Law Journal 45 (1996): 911.
See Mark Stefik, 'Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us to Rethink Digital Publishing,' Berkeley Technology Law Journal 12 (1997).
In 'Shifting the Possible' (142–44), Stefik discusses how trusted printers combine four elements — print rights, encrypted online distribution, automatic billing for copies, and digital watermarks — in order to monitor and control the copies they make.
Stefik, The Internet Edge , 91.
Sony v. Universal Studios, Inc., 464 U.S. 417, 432 (1984).
See David Hackett Fischer, Albion's Seed: Four British Folkways in America (New York: Oxford University Press, 1989), 765.
See American Legal Realism, edited by William W. Fisher III et al. (New York: Oxford University Press, 1993), 98–129; John Henry Schlegel, American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995). For a nice modern example of the same analysis, see Keith Aoki, '(Intellectual) Property and Sovereignty: Notes Toward a Cultural Geography of Authorship,' Stanford Law Review 48 (1996): 1293.
See Fried, The Progressive Assault on Laissez-Faire, 1–28; see also Joel P. Trachtman ('The International Economic Law Revolution,' University of Pennsylvania Journal of International Economic Law 17 [1996]: 33, 34), who notes that many realists and critical legal theorists have asserted that 'private law' is an oxymoron.
Judges have also made this argument; see Lochner v. New York, 198 US 45, 74 (1905) (Justice Oliver Wendell Holmes Jr. dissenting).
This is the epistemological limitation discussed in much of Friedrich A. von Hayek's work; see, for example, Law, Legislation, and Liberty, vol. 2 (Chicago: University of Chicago Press, 1978).
Boyle, Shamans, Software, and Spleens, 174.
I am hiding a great deal of philosophy in this simplified utilitarian account, but for a powerful economic grounding of the point, see Harold Demsetz, 'Toward a Theory of Property Rights,' American Economics Review 57 (1967): 347.
