Code 2.0

26.

For a wonderfully clear introduction to this point, as well as a complete analysis of the law, see Robert P. Merges et al., Intellectual Property in the New Technological Age (New York: Aspen Law and Business, 1997), ch. 1.

27.

Thomas Jefferson, letter to Isaac Mcpherson, August 13, 1813, reprinted in Writings of Thomas Jefferson, 1790–1826, vol. 6, edited by H. A. Washington (1854), 180–81, quoted in Graham v. John Deere Company, 383 US 1, 8–9 n.2 (1966).

28.

For the classic discussion, see Kenneth J. Arrow, 'Economic Welfare and the Allocation of Resources for Invention,' in The Rate and Direction of Inventive Activity: Economic and Social Factors (Princeton, N.J.: Princeton University Press, 1962), 609, 616–17.

29.

For a powerfully compelling problematization of the economic perspective in this context, see Boyle, 'Intellectual Property Policy Online,' 35–46. Boyle's work evinces the indeterminacy that economics ought to profess about whether increasing property rights over information will also increase the production of information.

30.

Some insist on calling this 'property'; see Frank H. Easterbrook, 'Intellectual Property Is Still Property,' Harvard Journal of Law and Public Policy 13 (1990): 108.

31.

This is the message of Justice Stephen Breyer's work on copyright, for example, 'The Uneasy Case for Copyright.'

32.

See Eldred v. Ashcroft, 537 U.S. 186 (2003).

33.

For an extensive and balanced analysis, see William M. Landes and Richard A. Posner, 'An Economic Analysis of Copyright Law,' Journal of Legal Studies 18 (1989): 325, 325–27, 344–46. These authors note that because ideas are a public good — that is, an infinite number of people can use an idea without using it up — ideas are readily appropriated from the creator by other people. Hence, copyright protection attempts to balance efficiently the benefits of creating new works with the losses from limiting access and the costs of administering copyright protection; copyright protection seeks to promote the public benefit of advancing knowledge and learning by means of an incentive system. The economic rewards of the marketplace are offered to authors in order to stimulate them to produce and disseminate new works (326). See also Richard Posner, Law and Literature (Cambridge, Mass.: Harvard University Press, 1998), 389–405; William M. Landes and Richard Posner, The Economic Structure of Intellectual Property Law (Cambridge, Mass.: Harvard University Press, 2003), 8–9.

34.

These limits come from both the limits in the copyright clause, which sets its purposes out quite clearly, and the First Amendment; see, for example, Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340, 346 (1991).

35.

The 'first sale' doctrine was developed under 27 of the former Copyright Act (17 USC [1970]) and has since been adopted under 109(a) of the present Copyright Act; see United States v. Goss, 803 F2d 638 (11th Cir 1989) (discussing both versions of the Copyright Act).

36.

Europeans like to say that 'moral rights' have been part of their system since the beginning of time, but as Professor Jane C. Ginsburg has shown with respect to France, they are actually a nineteenth-century creation; see 'A Tale of Two Copyrights: Literary Property in Revolutionary France and America,' Tulane Law Review 64 (1990): 991.

37.

Daniel Benoliel, 'Technological Standards, Inc.: Rethinking Cyberspace Regulative Epistemology,' 92 California Law Review 1069, 1114 (2004).

38.

See Universal Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).

39.

Stefik, The Internet Edge, 99–100.