On Software Regulation

This Article develops a novel analytic framework for the evaluation of regulatory policy in cyberspace, flowing from a reconceptualization of cyberlaw’s central premise: software code as complementary to law rather than its substitute. This approach emphasizes the linkage between law and software; for every quantum of legal-regulatory impact, there is a corresponding equilibria of regulation-bysoftware. The absence of a legal right will stimulate a technological response—and such incentives will moderate with increased rights. Rather than “code is law,” this is “code meets law.” The implications of this methodological shift are explored in the context of the emerging (and intensely controversial) cyberproperty right—defined as the right to exclude others from one’s network resources. The debate over whether (and how, and why) concepts of property rights can be extended to bits stored on web servers, email systems and the like is both deeply intertwined with technology and fundamentally comparative in nature, bringing the importance of understanding the regulatory costs and benefits of software (as compared to law) into sharp relief. The analysis that emerges suggests that, contrary to much of the relevant scholarly literature (and perhaps counterintuitively), the availability of technological mechanisms to replace legal rights likely strengthens, rather than weakens, the case for legal regulation in the form of property rights. At least in this context, a software-centric regulatory approach is dominated by regimes premised on property-backed contractual relationships. Considering the regulatory environment of cyberspace from this perspective may have profound effects on the way we think about the form and function of law online. The nature of cyberspace as particularly sensitive to emerging concerns about the tyranny of software suggests that the online environment might be more suited for a broad property rights regime than has been recognized to date

On Software Regulation

This Article develops a novel analytic framework for the evaluation of regulatory policy in cyberspace, flowing from a reconceptualization of cyberlaw’s central premise: software code as complementary to law rather than its substitute. This approach emphasizes the linkage between law and software; for every quantum of legal-regulatory impact, there is a corresponding equilibria of regulation-bysoftware. The absence of a legal right will stimulate a technological response—and such incentives will moderate with increased rights. Rather than “code is law,” this is “code meets law.” The implications of this methodological shift are explored in the context of the emerging (and intensely controversial) cyberproperty right—defined as the right to exclude others from one’s network resources. The debate over whether (and how, and why) concepts of property rights can be extended to bits stored on web servers, email systems and the like is both deeply intertwined with technology and fundamentally comparative in nature, bringing the importance of understanding the regulatory costs and benefits of software (as compared to law) into sharp relief. The analysis that emerges suggests that, contrary to much of the relevant scholarly literature (and perhaps counterintuitively), the availability of technological mechanisms to replace legal rights likely strengthens, rather than weakens, the case for legal regulation in the form of property rights. At least in this context, a software-centric regulatory approach is dominated by regimes premised on property-backed contractual relationships. Considering the regulatory environment of cyberspace from this perspective may have profound effects on the way we think about the form and function of law online. The nature of cyberspace as particularly sensitive to emerging concerns about the tyranny of software suggests that the online environment might be more suited for a broad property rights regime than has been recognized to date

Exactly Backwards: Exceptionalism and the Federal Circuit

This short essay critically evaluates the current proposals, most closely associated with Dan Burk and Mark Lemley, that the patent law should increasingly become technology-specific - that is, that the law should reflect different rules for different technological areas or industries. I make three points. The first is to point out that descriptive claims of a fundamental technological-exceptionalism (what I call macro-exceptionalism ) in the patent law are not well supported, once one sets aside the small factual variability ( micro-exceptionalism ) built into the legal standards. Second, using empirical data from the development of claim construction jurisprudence and the patterns of en banc proceedings at the Federal Circuit, I argue that the major trends in the patent law run directly counter to macro-exceptionalist claims. Finally, in considering the public policy issues raised by the calls for a judicially created technological-exceptionalism, I conclude that the most successful approach is, indeed, exactly backwards of that suggested by the proponents of technological-specificity in the patent law

The Perfect Storm: Intellectual Property and Public Values

This short conference paper considers how the contemporary discourse surrounding Intellectual property law (especially copyright) may be harming all concerned. That is, because of wildly divergent (and often objectively unsupportable) positions taken by both copyright owners and consumer advocates, the zone of uncertainty in the law has increased. And as uncertainty increases, both sides are hurt. The paper ends with a call for a higher level of discourse, and a query regarding whether all concerned might be better off trading rights for certainty