Wendy J Gordon and Paul J. Liacos
My topic is structural: identifying what is at stake in utilizing various U.S. legal tools to shelter the public from the restraints on creative use imposed by contracts and by technology.
The United States Constitution provides that federal law is “supreme” over state law. This provides potential for moderating the power of media providers who have been taking advantage of the Net and other new technologies to control the public’s use of intellectual products by means of state contract law. Federal copyright law includes provisions to limit the duration of private ownership, and to place ideas and facts in the public domain. These and similar federal guarantees for the public domain may pre-empt state contract law that purports to validate contracts that impose perpetual protection or contracts that try to restrain the copying of ideas and facts. However, to use pre-emption, one must fairly face the public/private distinction, and the taxonomic issue of how contract and property differ.
Technological modes of control, such as encryption, not only raise these issues, but also pose an additional conundrum: when should governmental power be enlisted to control self-help. On the latter issue, one useful model might be the antitrust laws (which prohibit many kinds of ‘self-help’ by potential monopolists and price fixers). Another useful source of analogy is the rich state and federal range of prohibition on trading in non-commidifiable resources.