1997 Pamela Samuelson.

Professor of Law and of Information Management, University of California at Berkeley. Thanks to Robert J. Glushko for his insightful comments on an earlier draft of this Foreword.

1. The program for the symposium is reprinted in the Appendix to this Foreward.

2. For example, an excessively broad scope of copyright protection in the digital environment might impede business models based on linking or indexing material now located on the World Wide Web. See, e.g., Eric Schlachter, The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet, 12 BERKELEY TECH. L.J. 15, 49-51 (1997) (discussing caching and linking).

3. Thanks to Robert J. Glushko for this insight. See also Robert P. Merges, The End of Friction? Property Rights and Contract in the "Newtonian" World of On-Line Commerce, 12 BERKELEY TECH. L.J. 115, 116 (1997).

4. Barlow was the luncheon speaker at the live Symposium. For an article expressing his views on digital copyright issues, see John Perry Barlow, The Economy of Ideas, WIRED, March 1994, at 85.

5. See Mark Stefik, Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us to Rethink Digital Publishing, 12 BERKELEY TECH. L.J. 137 (1997).

6. See Maureen O'Rourke, Copyright Preemption After the ProCD Case: A Market-Based Approach, 12 BERKELEY TECH. L.J. 53 (1997).

7. See Merges, supra note 3, at 23-26.

8. See Niva Elkin-Koren, Copyright Policy and the Limits of Freedom of Contract, 12 BERKELEY TECH. L.J. 93 (1997).

9. See id. at 108-13; Merges, supra note 3, at 125-26.

10. See Julie A. Cohen, Some Reflections on Copyright Management Systems and Laws Designed to Protect Them, 12 BERKELEY TECH. L.J. 161 (1997).

11. Radin pointed out that Bloomingdale's, after all, doesn't need to be situated on Bloomingdale Street in order to be a viable department store business; perhaps the Internet will evolve beyond the model that today would make bloomingdales.com the exclusive property of the store, even if Johnny Bloomingdale wanted it as a site to post his favorite jokes.

12. Schlachter, for example, seems to assume that copyright is the predominate law to apply to digital content (although he also explains why he thinks even it may be less important than many intellectual property lawyers might expect in regulating the distribution of digital content). See Schlachter, supra note 2, at 16-17. O'Rourke clearly expects digital licensing to predominate, see O'Rourke, supra note 6, at 54, whereas Stefik clearly expects technology to prevail, see Stefik, supra note 5, at 138. One could even argue that trademarks will be the chief form of intellectual property in digital commerce because "brand" implies trust. This point is implicitly raised in Schlachter's article in its insistence on the interest of information providers in being attributed as the source of the digital content they distribute. See Schlachter, supra note 2, at 31.

13. See, e.g., O'Rourke, supra note 6, at 83.

14. See, e.g., Merges, supra note 3, at 121,126-7; Elkin-Koren, supra note 8, at 109.

15. See, e.g., Stefik, supra note 5, at 155-56; Cohen, supra note 10, at 179-83.

16. See, e.g., Schlachter, supra note 2, at 34-38; (expressing concern about the social costs of policing digital copyrights); Cohen, supra note 10, at 175-78 (expressing concern about the implications of technological protection for fair use). But see Stefik, supra note 5, at 143 (expressing optimism that trusted systems will make it easier for honest people to pay for works they use).

17. See Schlachter supra note 2, at 31-32; Merges supra note 3, at 127-28; Cohen supra note 10, at 162; Stefik supra note 5.

18. See, e.g., O'Rourke, supra note 6, at 79; Merges, supra note 3, at 128; Cohen, supra note 10, at 172-79; Elkin-Koren, supra note 8, at 106-13.

19. See, e.g., Schlachter supra note 2, at 50-51; Cohen supra note 10, at 187.

20. See, e.g., Cohen supra note 10, at 183-87 (privacy issues raised by copyright management systems).

21. See, e.g., Robert Berring, Chaos, Cyberspace and Tradition: Legal Information Transmogrified, 12 BERKELEY TECH. L.J. 189 (1997)

22. See, e.g., Dan Rosen, Surfing the Sento, 12 BERKELEY TECH. L.J. 213 (1997)

23. See Schlachter, supra note 2.

24. See U.S. DEP'T OF COMMERCE, INFORMATION INFRASTRUCTURE TASK FORCE, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS (Sept. 1995) [hereinafter NII WHITE PAPER].

25. See Schlachter, supra note 2, at 29. At a recent industry conference, Web Market West, I saw a number of demonstrations of this principle. Many firms were working to make sites to which people will want to return, in part because of the presence of others with whom they feel some affinity. The firms' hopes are that not only will people return to the site, but that they will also spend money there.

26. See id. at 31.

27. See id. at 31; NII WHITE PAPER, supra note 24, at 235.

28. See Schlachter, supra note 2, at 50-51.

29. O'Rourke, supra note 6, at 54.

30. See 17 U.S.C. 301 (1994) (requiring an equivalence between a state-created right and one or more of the exclusive rights of copyright before federal preemption of state law can be invoked).

31. See, e.g., ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).

32. See O'Rourke, supra note 6, at 77.

33. ProCD, Inc. v. Zeidenberg, 908 F. Supp. 640, 645 (W.D. Wis.), rev'd, 86 F.3d 1447 (7th Cir. 1996) discussed in O'Rourke, supra note 6, at 77.

34. See id. at 91.

35. See Elkin-Koren, supra note 8, at 102 n.46.

36. See id. at 95.

37. See 17 U.S.C. 107 (fair use), 109 (first sale), 106 (exclusive rights provisions) (1994).

38. Elkin-Koren, supra note 8, at 104.

39. Id. at 100.

40. Id. at 101.

41. See id. at 111-13.

42. See Merges, supra note 3, at 118-20, 126.

43. Id. at 120. While Merges does not explicitly use this example, by extension his article would characterize as a stretch to say that Zeidenberg was bound by the license included with the CD-ROM he purchased when he loaded the CD-ROM on his machine, but it would be breaking contract law to say that anyone who got access to the CD-ROM could be bound to the license terms by using the product. Cf. Elkin-Koren, supra note 8, at 103 (expressing concerns that even a stranger who did not purchase, but found and used, the ProCD CD-ROM could be bound by the license because of the minimal assent that the Pro-CD case seems to require).

44. See Merges, supra note 3, at 126-27.

45. See id. at 126 (citing Robert P. Merges, Intellectual Property and the Costs of Commercial Exchange: A Review Essay, 93 MICH. L. REV. 1570 (1995)). As before, Merges asserts that these should be preempted, although he now qualifies his position in two respects. Id.

46. See, e.g., Wendy J. Gordon, Fair Use as Market Failure: a Structural and Economic Analysis of the Betamax Case and its Predecessors, 82 COLUM. L. REV. 1600 (1982).

47. See Merges, supra note 3, at 132.

48. See id. at 116-17.

49. At the Symposium, I suggested that intellectual property lawyers should become interested in these protection systems because they might very well put these lawyers out of business. See generally Schlachter, supra note 2, at 38-44 (surveying a range of these techniques).

50. See Stefik, supra note 5, at 139-44.

51. See id. Among other things, Stefik shows how this digital property rights language can be used to bring about the technical equivalent of the first-sale rule of copyright law by disabling someone's copy when he or she lends it to a friend and reviving it when the friend's copy has ceased to operate. See id. at 148. As Julie Cohen notes, this action will occur only when a publisher chooses to encode this lending right for its works which the publisher need not do. See Cohen, supra note 10, at 177.

52. See Stefik, supra note 5, at 156. Stefik himself is seeking patents for some of his trusted systems ideas.

53. Cohen, supra note 10, at 182 (quoting Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. REV. 1403, 1408 (1996)). Cohen does not address the question of whether this implies that programmers should be trained in legal rules and only encode that which the law permits.

54. See id. at 183 n.96 (citing Stefik, supra note 5).

55. World Intellectual Property Organization, Provisional Treaty on Protection of Literary and Artistic Works, Arts. 11, 12, 53 PAT. TRADEMARK & COPYRIGHT J. 155 (1997). See generally Pamela Samuelson, The U.S. Digital Agenda at WIPO, __ VA. J. INT'L L. __ (forthcoming 1997).

56. Cohen, supra note 10, at 178.

57. See id. at 163-78.

58. See generally Berring, supra note 21.

59. Id. at 190.

60. See id. at 201.

61. See id. at 202.

62. See id. at 203-09; see also Pamela Samuelson, The Quest For Enabling Metaphors For Law and Lawyering In the Information Age, 94 MICH. L. REV. 2029 (1996).

63. See Rosen, supra note 22, at 213.

64. Id. at 215.

65. See id. at 224-25.

66. See id. at 221-22.

67. Id. at 226, 229.

68. A final tip of the hat to Denise Caruso for pointing out that the term "digital content" commodifies expression and depersonalizes the creator and the cultural context of the work.