1998 Julie E. Cohen.

Visiting Assistant Professor, Georgetown University Law Center (Fall 1998); Visiting Assistant Professor, University of Michigan Law School (Spring 1999); Assistant Professor, University of Pittsburgh School of Law. Internet: <cohen@law.pitt.edu>. I thank Harry Flechtner, Steve Goldberg, Kate Heidt, Avery Katz, Mark Lemley, Larry Lessig, Jerry Reichman, M. Douglas Scott, and Bill Vukowich for their valuable comments and suggestions and Steven Serdikoff and Richard DeCristofaro for research assistance. I appreciate David Friedman's attention to my work.

1. See U.C.C. 2B-102(a)(27) (Aug. 1, 1998 Draft). As defined in Article 2B, "informational rights" encompass "all rights in information created under laws governing patents, copyrights, mask works, trade secrets, trademarks, publicity rights, or any other law that permits a person, independently of contract, to control or preclude another person's use of the information on the basis of the rights holder's interest in the information." Id.

Unless otherwise noted, all citations to 'Article 2B' or 'proposed Article 2B' in this article refer to the July 24-31, 1998 Proposed Draft. Current and previous drafts of proposed Article 2B, together with other official documents from the drafting process, are available online via the National Council of Commissioners on Uniform State Laws' Web page collection of draft uniform laws, maintained by the Biddle Law Library at the University of Pennsylvania Law School. See National Council of Commissioners on Uniform State Laws, Drafts of Uniform and Model Acts, (last modified Oct. 21, 1998) <http://www.law.upenn.edu/library/ulc/ulc.htm#ucc2b>. Correspondence and other documents submitted by interested parties during the drafting process are also available on the Web. See Carol A. Kunze, The 2B Guide (last modified Nov. 1, 1998) <http://www.2BGuide.com/>.

2. See U.C.C. 2B-208 (July 24-31, 1998 Draft) (validating mass market standard-form license terms); id. 2B-310 (authorizing licensors to implement electronic regulation of performance); id. 2B-715 (authorizing licensor self-help following cancellation of a covered agreement).

3. See id. 2B-208, Reporter's Notes 3-4, 2B-310, Reporter's Note 1, 2B-715, Reporter's Note 3; see also U.C.C. Article 2B, Preface at 9 (July 24-31, 1998 Draft) ("Article 2B does not create contract law here-it merely provides a more coherent base for contracting."); Raymond T. Nimmer, The Relation Between Contract and Intellectual Property Law, 13 BERKELEY TECH. L.J. 827, 829 (1998).

4. See U.C.C. 2B-105, Reporter's Notes 2-3; see also id. 2B-105, Reporter's Notes 7-8; Nimmer, supra note 3, at *. For a different characterization of Article 2B's approach to the relationship between contract and copyright, see David F. McGowan, Free Contracting, Fair Competition, and Article 2B: Some Reflections on Federal Competition Policy, Information Transactions, and "Aggressive Neutrality," 13 BERKELEY TECH. L.J. * (1998).

5. See, e.g., ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1454 (7th Cir. 1996); Brief of Amicus Curiae Software Publishers Association in Support of Plaintiff-Appellant, ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (No. 96-1139); Information Indus. Ass'n, Comments of the Information Industry Association on Article 2B and Prof. Charles McManis' Proposed Amendment to Section 2B-308 (July 18, 1997) <http://www.infoindustry.org/ppgrc/doclib/grdoc010.htm>; Copyright Comm., Ass'n of Am. Publishers, Contractual Licensing, Technological Measures and Copyright Law (visited Nov. 11, 1998) <http://www.publishers.org/home/abouta/copy/licensing.htm>; see also Robert W. Gomulkiewicz & Mary L. Williamson, A Brief Defense of Mass Market Software License Agreements, 22 RUTGERS COMPUTER & TECH. L.J. 335 (1996); Holly K. Towle, Electronic Transactions and Contracting, in SECOND ANNUAL INTERNET LAW INSTITUTE 515 (PLI, 1998).

6. Currently, self-help repossession is authorized in certain circumstances by U.C.C. Articles 2A and 9, which govern leases and secured transactions respectively. See U.C.C. 2A-525 (1990), U.C.C. 9-503 (1972). The standards that govern self-help repossession under Articles 2A and 9 are derived from the pre-U.C.C. common law. See infra text accompanying notes 45-54.

7. See, e.g., John Perry Barlow, The Economy of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital Age, WIRED, Mar. 1994, at 85; JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY 35-41 (1995); Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 301, 381-90 (1998); J. Bradford DeLong & A. Michael Froomkin, The Next Economy?, in INTERNET PUBLISHING AND BEYOND: THE ECONOMICS OF DIGITAL INFORMATION AND INTELLECTUAL PROPERTY (Deborah Hurley et al. eds., forthcoming 1998); Esther Dyson, Intellectual Value, WIRED, July 1995, at 136.

8. See, e.g., WIPO Copyright Treaties Implementation Act: Hearing on H.R. 2281 Before the Subcomm. on Telecommunications Trade & Consumer Protection of the House Comm. on Com., 105th Cong. (1998) [hereinafter H.R. 2281 Commerce Hearing] (statement of Robert W. Holleyman, II, President, The Business Software Alliance); Copyright Legislation: Hearings on H.R. 2281 Before the Subcomm. on Cts. and Intell. Prop. of the House Comm. on the Judiciary, 105th Cong. (1997) [hereinafter H.R. 2281 Judiciary Hearings] (statements of Robert W. Holleyman, II, President, The Business Software Alliance; Allee Willis, on behalf of Broadcast Music, Inc.; Tom Ryan, CEO, SciTech Software, Inc., on behalf of the Software Publishers' Ass'n; Gail Markels, General Counsel and Senior Vice President, Interactive Digital Software Ass'n; and Allen R. Adler, Vice President for Legal and Governmental Affairs, Association of Am. Publishers); National Information Infrastructure: Hearing on S. 1284 Before the Senate Comm. on the Judiciary, 104th Cong. (1996) [hereinafter S. 1284 Hearing] (testimony of Kenneth R. Kay, Executive Director, Creative Incentive Coalition); Copyright Protection on the Internet: Hearings on H.R. 2441 Before the Subcomm. on Cts. and Intell. Prop. of the House Comm. on the Judiciary, 104th Cong. (1996) [hereinafter H.R. 2441 Hearing] (statements of Barbara A. Munder, Senior Vice President, The McGraw-Hill Companies, Inc.; Frances W. Preston, President and CEO, Broadcast Music, Inc.; Jack Valenti, Chairman and CEO, Motion Picture Ass'n of Am., Inc.; and the Association of Am. Publishers); see also WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS, U.S. DEP'T OF COMMERCE, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS 10-12 (1995) [hereinafter NII WHITE PAPER].

9. See Jon Bing, The Contribution of Technology to the Identification of Rights, Especially in Sound and Audio-Visual Works: An Overview, 4 INT'L J.L. & INFO. TECH. 234 (1996); CHRISTOPHER BURNS, INC., COPYRIGHT MANAGEMENT AND THE NII: REPORT TO THE ENABLING TECHNOLOGIES COMMITTEE OF THE ASSOCIATION OF AMERICAN PUBLISHERS (1996); Charles Clark, The Publisher in the Digital World, in INTELLECTUAL PROPERTY RIGHTS AND NEW TECHNOLOGIES: PROCEEDINGS OF THE KNOWRIGHT '95 CONFERENCE 85 (Klaus Brunnstein & Peter Paul Sint eds., 1995; Daniel J. Gervais, Electronic Rights Management Systems (ERMS): The Next Logical Step in the Evolution of Rights Management (visited Nov. 13, 1998) <http://www.copyright.com/>; Daniel J. Gervais, Electronic Copyright Management Systems (ECMS): From Rights Trading to Electronic Publishing (visited Nov. 13, 1998) <http://www.copyright.com/>; Mark Stefik, Shifting the Possible: How Digital Property Rights Challenge Us to Rethink Digital Publishing, 12 BERKELEY TECH. L.J. 138 (1997); MARK STEFIK, Letting Loose the Light: Igniting Commerce in Electronic Publication, in INTERNET DREAMS: ARCHETYPES, MYTHS, AND METAPHORS 219 (1996); PETER WAYNER, DIGITAL COPYRIGHT PROTECTION (1997); Robert Weber, Digital Rights Management Technologies, <http://www.ncri.com/articles/rights_management/ifrro95.html>. See generally Julie E. Cohen, A Right to Read Anonymously: A Closer Look at "Copyright Management" in Cyberspace, 28 CONN. L. REV. 981, 983-87 (1996) (describing capabilities of digital rights management systems).

10. See Weber, supra note 9, 3.1.1; see also CHRISTOPHER BURNS, INC., supra note 9, at 17-21, 31-35; Stefik, Shifting the Possible, supra note 9, at 140-44; STEFIK, Letting Loose the Light, supra note 9, at 228-38.

11. For information provider testimony in support of legislation, see H.R. 2281 Commerce Hearing, supra note 8; H.R. 2281 Judiciary Hearings, supra note 8; S. 1284 Hearing, supra note 8; H.R. 2441 Hearing, supra note 8; see also NII WHITE PAPER, supra note 8. Legislation designed to protect digital rights management systems was enacted this year. See Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998). For discussion of its provisions, see infra note 201.

12. See, e.g., 17 U.S.C. 107 (1994) (fair use doctrine, which allows, inter alia, reuse of protected expression for purposes of criticism, classroom or research use, and parody), 108 (1994) (library copying privileges), 109(a) (1994) (limitation of exclusive distribution right to first sale of copy for most works), 110 (1994) (public performance and display exemptions for nonprofit activities and organizations), 302 (1994) (duration of copyright protection).

13. See 17 U.S.C. 102(b) (1994); Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-50 (1991); Jessica Litman, The Public Domain, 39 EMORY L.J. 965, 993 (1990).

14. See Feist, 499 U.S. at 349-50. Even for those compilations that incorporate original expression in the selection or arrangement of the underlying data, copyright protection extends only to those aspects and not to the data itself. 17 U.S.C. 103(b) (1994). See generally 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT 3.04[B][2] (46th rel. 1998).

15. See infra Part V.A. Compare International News Serv. v. Associated Press, 248 U.S. 215 (1918) (recognizing a common law cause of action for misappropriation of uncopyrightable news content), with 17 U.S.C. 301(a) (1994) (preempting "equivalent" state-created rights in subject matter of copyright). On the appropriate role of data misappropriation law within the interstices of federal copyright law, see National Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 852-54 (2d Cir. 1997); see also United States Golf Ass'n v. St. Andrews Sys., 749 F.2d 1028, 1037-38 (3d Cir. 1984) (articulating a narrow basis for the misappropriation tort).

There may soon exist federal protection for uncopyrightable databases and their contents. Database protection bills were introduced in both houses of Congress in 1998. See Collections of Information Antipiracy Act, H.R. 2652, 105th Cong. (1997); Collections of Information Antipiracy Act, S. 2291, 105th Cong. (1998). The House bill was incorporated into the Digital Millenium Copyright Act, which passed the House on July 29, 1998. See Digital Millenium Copyright Act, H.R. 2281, 105th Cong., Title V. However, the Senate-approved version of the Digital Millenium Copyright Act did not include database protection. See Digital Millenium Copyright Act, S. 2037, 105th Cong. Because the Senate has yet to hold hearings on database protection, the database provisions were removed from the final version of the bill. See Digital Millenium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998). Whether and to what extent such protection would be inconsistent with the constitutional origins of and limits to federal copyright protection are unresolved questions. Cf. infra Part V.A (discussing constitutional preemption of state laws that confer property-like protection on uncopyrightable material).

16. See UNIF. TRADE SECRETS ACT 1 (1985); RESTATEMENT (THIRD) OF UNFAIR COMPETITION 39, 43 (1995); Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 157 (1989); Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 476 (1974).

17. See, e.g., ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1454 (7th Cir. 1996); Brief of Amicus Curiae Software Publishers Association in Support of Plaintiff-Appellant, ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (No. 96-1139); Information Indus. Ass'n, supra note 5; Copyright Comm., Ass'n of Am. Publishers, supra note 5; see also Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine, 76 N.C. L. REV. 557, 609-11 (1998). Many other commentators disagree, and argue that copyright does and should displace at least some types of contract restrictions. See, e.g., Cohen, supra note 7, at 322-28; Julie E. Cohen, Some Reflections on Copyright Management Systems and Laws Designed to Protect Them, 12 BERKELEY TECH. L.J. 161, 181-82 (1997); Niva Elkin-Koren, Copyright Policy and the Limits of Freedom of Contract, 12 BERKELEY TECH. L.J. 93, 107-10 (1997); Dennis S. Karjala, Federal Preemption of Shrinkwrap and On-Line Licenses, 22 U. DAYTON L. REV. 512, 525-33 (1997); Robert A. Kreiss, Accessibility and Commercialization in Copyright Theory, 43 U.C.L.A. L. REV. 1, (1995); Mark A. Lemley, Beyond Preemption: The Federal Law and Policy of Intellectual Property Licensing, 87 CALIF. L. REV. 111 (forthcoming 1999); Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. CAL. L. REV. 1239 (1995); 1 NIMMER & NIMMER, supra note 14, 3.04[B][3]; David A. Rice, Public Goods, Private Contract, and Public Policy: Federal Preemption of Software License Provisions Against Reverse Engineering, 53 U. PITT. L. REV. 543 (1992); see also infra Part V.

18. Compare, e.g., ProCD, 86 F.3d at 1451-53 (holding shrinkwrap license valid and enforceable because consumer could have returned the product before using it if he did not wish to accept the terms), with, e.g., Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991) (holding that shrinkwrap license terms disclosed after product had been exchanged for payment did not become part of the bargain between the parties). It is worth noting that despite the enormous amount of attention and discussion devoted to the ProCD decision, far more courts have held later-disclosed license terms unenforceable. See Lemley, Beyond Preemption, supra note 17, at 120, n.20 (collecting cases).

19. See, e.g., Business Software Alliance, Software Publishers Ass'n & Info. Indus. Ass'n, Article 2B (July 15, 1998) <http://www.2BGuide.com/docs/amemo981.html>; Information Indus. Ass'n, supra note 5; Business Software Alliance, Information Indus. Ass'n & Silicon Valley Software Indus. Coalition, Article 2B (July 14, 1998) <http://www.2BGuide.com/docs/amtng98.html>; see also Business Software Alliance, Policy Issues: Response to Comments on Draft of UCC Article 2B by Consumers Union (July 17, 1997) <http://www.2BGuide.com/docs/bsacun.html >; Software Publishers Ass'n, Article 2B, Uniform Commercial Code: Exploding the Myth that the Draft is Unbalanced (July 15, 1997) <http://www.2BGuide.com/docs/span.html >. See generally Cem Kaner, Restricting Competition in the Software Industry: Impact of the Pending Revisions to the Uniform Commercial Code (last modified Nov. 11, 1998) <http://www.badsoftware.com/nader.htm> (describing information provider involvement in Article 2B drafting process). Although the more "traditional" copyright industries have supported digital rights management vociferously in other contexts, see supra notes 8, 11, they have not all been as enthusiastic about Article 2B as a whole. See, e.g., Letter from Simon Barsky, Senior Vice President and General Counsel, Motion Picture Ass'n, to Carlyle Ring, Jr., Chair, Article 2B Drafting Committee (Apr. 29, 1998) <http://www.2BGuide.com/docs/conn0429.html> (expressing reservations about Article 2B and suggesting that the scope of the project be narrowed to include only computer software and electronic information products). But see Association of Am. Publishers, supra note 5 (expressing support for the Article 2B project).

20. See U.C.C. 2B-208, 2B-310 (July 24-31, 1998 Draft). On the significance of the "license" characterization, see David A. Rice, Digital Information as Property and Product: U.C.C. Article 2B, 22 U. DAYTON L. REV. 621, 624-26, 632-34 (1997).

21. Section 2B-310 provides:

Section 2B-310. Electronic Regulation of Performance.

(a) In this section, "restraint" means a program, code, device, or similar electronic or physical limitation that restricts the use of information.

(b) A party entitled to enforce a limitation on use of information which does not depend on a breach of contract by the other party may include a restraint in the information or a copy of the information and use that restraint if:

(1) a term of the agreement authorizes use of the restraint;

(2) the restraint prevents uses of the information which are inconsistent with the agreement or with informational rights which were not granted to the licensee;

(3) the restraint prevents uses of the information after expiration of the stated duration of the contract or a stated number of uses; or

(4) the restraint prevents use when the contract terminates, other than on expiration of a stated duration or number of uses, and the licensor gives reasonable notice to the licensee before further use is prevented.

(c) Unless authorized by a term of the agreement, this section does not permit a restraint that affirmatively prevents or makes impracticable a licensee's access to its own information in the licensee's possession by means other than by use of the licensor's information or informational rights.

(d) A party that includes or uses a restraint pursuant to subsection (b) or (c) is not liable for any loss caused by its authorized use of the restraint.

(e) This section does not preclude electronic replacement or disabling of an earlier copy of information by the licensor in connection with delivery of a new copy or version under an agreement to electronically replace or disable the earlier copy with an upgrade or other new information.

U.C.C. 2B-310 (July 24-31, 1998 Draft).

22. Id. 2B-310(b)(1). On its face, this provision is unremarkable. However, when read in conjunction with section 2B-208, which validates standard-form terms that consumers have had the opportunity to review (whether or not they actually did so), it raises troubling questions. Whether mass market licensees should be deemed to have consented to provisions for automatic, self-enforcing electronic regulation is discussed infra Part IV.

23. U.C.C. 2B-310(b)(2)-(3) & Reporter's Note 5 (July 24-31, 1998 Draft).

24. Id. 2B-310(b)(2).

25. Id. 2B-310, Reporter's Note 2.

26. Id. 2B-105(a) ("A provision of this article which is preempted by federal law is unenforceable to the extent of that provision."); Id. 2B-105, Reporter's Note 1 ("When or whether federal law controls is not an issue of state law. State law, including the U.C.C., cannot alter federal policy and the balance it may entail. Article 2B does not intend to do so.").

27. Id. at 10-12; id. 2B-105, Reporter's Notes 3-4. It is difficult to imagine that the drafters would have included detailed provisions authorizing electronic private ordering if they believed that such agreements would be preempted. See also Nimmer, supra note 3, at 845-51.

28. See U.C.C. 2B-105, Reporter's Note 3 (July 24-31, 1998 Draft); McGowan, supra note 4, at 1195-1214 (explicating the drafters' vision of "neutrality"); David Nimmer et al., The Metamorphosis of Contract into Expand, 87 CALIF. L. REV. 17, 41-42 (forthcoming 1999) (analyzing Article 2B's "neutrality myth").

29. Section 2B-715 provides:

Section 2B-715. Right to Possession and to Prevent Use.

(a) Upon cancellation of a license, the licensor has the right:

(1) to possession of all copies of the licensed information in the possession or control of the licensee and any other materials pertaining to that information which by contract were to be returned or delivered by the licensee to the licensor; and

(2) to prevent the continued exercise of contractual and informational rights in the licensed information.

(b) Except as otherwise provided in Section 2B-714, a licensor may exercise its rights under subsection (a) without judicial process only if this can be done:

(1) without a breach of the peace; and

(2) without a foreseeable risk of personal injury or significant damage to information or property other than the licensed information.

(c) In a judicial proceeding, a court may enjoin a licensee in breach of contract from continued use of the information and the informational rights and may order that the licensor or an officer of the court take the steps described in Section 2B-627.

(d) A party has the right to an expedited judicial hearing on prejudgment relief to enforce or protect its rights under this section.

(e) The right to possession under this section is not available to the extent that the information, before breach of the license and in the ordinary course of performance under the license, was so altered or commingled that the information is no longer identifiable or separable.

(f) A licensee that provides information to a licensor subject to contractual use restrictions has the rights and is subject to the limitations of a licensor under this section with respect to the information it provides.

U.C.C. 2B-715 (July 24-31, 1998 Draft). Section 2B-714 permits an access contract provider to discontinue access in the event of a material breach. Id. 2B-714.

30. U.C.C. 2A-525 (1990); U.C.C. 9-503 (1972). For discussion of the legal standards governing self-help repossession, as developed in the contexts of Articles 2A and 9, see infra Part III.A-B.

31. U.C.C. 2B-715(b)(1) (July 24-31, 1998 Draft).

32. See id. 2B-702(a).

33. Id. 2B-715(b)(2). Because the "breach of the peace" standard has been applied to prohibit injury to persons or property, the Reporter's Notes to previous drafts correctly characterized these additional restrictions as a mere "clarifying step." See, e.g., U.C.C. 2B-716, Reporter's Note 1 (Apr. 15, 1998 Draft). The most recent version of the Reporter's Notes represents, instead, that this language places "more restrictions" on self-help than under sections 2A-525 and 9-503. U.C.C. 2B-715, Reporter's Note 3 (July 24-31, 1998 Draft).

34. See, e.g., U.C.C. 2B-716 (Apr. 1, 1998 Draft).

35. Id. 2B-716(a).

36. Id.

37. Id. 2B-715(b), 2B-716(a). On the question whether the "breach of the peace" standard that limits physical repossession is an appropriate measure of the harms threatened by electronic regulation and repossession, see infra Part III.

38. See, e.g., U.C.C. 2B-716 (Feb. 1998 Draft).

39. U.C.C. 2B-715, Reporter's Note 3 (Aug. 1, 1998 Draft).

40. See id. 2B-208. Under section 2B-208, the terms of a mass market license are valid and enforceable if the license manifests assent to the license prior to use of the licensed information, whether or not the licensee actually reviewed the license terms. Id. 2B-208(a). If the first opportunity to review the terms occurs after payment and the licensee does not wish to manifest assent, the licensee is entitled to rescission and a refund. Id. 2B-208(b).

41. At the same time, the drafters have eliminated defenses that might have been raised by licensees, such as section 2-403's provision for the unenforceability of property rights against a bona fide purchaser for value, on the ground that they are inconsistent with licensors' federal intellectual property rights. Id. at 15.

42. See David D. Friedman, In Defense of Private Orderings, 13 BERKELEY TECH. L.J. *, *-54 (1998). For example, the license for a work might allow only one user at a time, and the software in which the work is encoded might enforce this restriction by preventing a second user from opening the work if it detects that the work is already in use. As long as the second user cannot defeat the restriction by tampering with the encoding software-a possibility discussed further in Part VI-the circumstances that would constitute a breach cannot occur.

43. See U.C.C. Article 2B, Preface at 10-12 (July 24-31, 1998 Draft); id. 2B-105, Reporter's Notes 3-4; Nimmer, supra note 3, at *-50, *-70, *-84.

44. As used in this essay, "consumers" includes both individuals and other entities that purchase (or "license") creative and informational works through the retail mass market. Although Article 2B defines "consumers" to include individuals only, this broader definition is consistent with Article 2B's distinction between mass market and non-mass market transactions:

In the retail mass market, and in many non-retail transactions, most modern transactions are standardized. An information provider defines the terms under which its information products are made available to the retail marketplace and end users in that marketplace elect to either acquire or not acquire [sic] the information on these terms. The transactions are anonymous in that the information provider does not restrict those to whom the information is given except based on the licensee's willingness to agree to terms and to pay the applicable license fee.

U.C.C. 2B-208, Reporter's Note 2 (July 24-31, 1998 Draft).

45. See JAMES J. WHITE & ROBERT S. SUMMERS, UNIFORM COMMERCIAL CODE 912-13 (4th ed. 1995) (characterizing "breach of the peace" standard as based on whether the creditor sought to enter peaceably or threatened force, and whether the debtor consented to entry or opposed it).

46. See id. at 913 & n.5.

47. See id. at 913 & n.4.

48. See U.S. CONST. amends. IV, XIV; Wolf v. Colorado, 338 U.S. 25, 28 (1949) (characterizing Fourth Amendment guarantee of privacy as "implicit in 'the concept of ordered liberty'" established by Fourteenth Amendment's due process clause, but holding that exclusionary rule is not constitutionally-mandated as to states) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)), overruled by Mapp v. Ohio, 367 U.S. 643, 654-57 (1961) (expanding due process-based guarantee to include exclusionary rule).

49. U.C.C. 2A-525 (1990); U.C.C. 9-503 (1972); see WHITE & SUMMERS, supra note 45, at 912 ("The drafters knowingly chose this well-worn phrase, and did not define it anew. Accordingly the numerous pre-Code cases are still good law."); see also BARKLEY CLARK, THE LAW OF SECURED TRANSACTIONS UNDER THE UNIFORM COMMERCIAL CODE 4.05[2][b][i] (3d ed. 1993 & Supp. 1998). Compare, e.g., Chrysler Credit Corp. v. Koontz, 661 N.E.2d 1171, 1173-74 (Ill. App. Ct. 1996) (upholding repossession of car parked in debtor's front yard), and Wade v. Ford Motor Credit Co., 668 P.2d 183, 187 (Kan. Ct. App. 1983) (upholding repossession of car parked in debtor's driveway), with Laurel Coal Co. v. Walter E. Heller & Co., 539 F. Supp. 1006, 1007 (W.D. Pa. 1982) (holding repossession unlawful where repossessors cut chain used to lock debtor's premises), and Morris v. First Nat'l Bank & Trust Co., 254 N.E.2d 683, 686 (Ohio 1970) (holding repossession unlawful where debtor's son confronted repossessors and stopped protesting only when he was physically surrounded).

Similar balancing principles exist in landlord-tenant law, another area in which both parties may be said to have "property"-like interests in the subject matter of the dispute. Cf. Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 993 (1982) (delineating a theory of property rights based on "personhood" interests and arguing that rental tenants should be recognized as having property interests in their homes); MARGARET JANE RADIN, CONTESTED COMMODITIES 108-12 (1996) (incorporating housing-related interests into a broader theory of "human flourishing"). Early English common and statutory law accorded landlords broad rights to eject tenants and distrain their personal property to satisfy unpaid rent obligations. See Special Project, Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 VAND. L. REV. 845, 938-41, 946-49 (1984). However, later courts and legislators gradually restricted the permissible scope of landlord self-help. See id. at 940-41, 947-49. Contemporary American landlord-tenant law is increasingly hostile to self-help eviction of any kind. Many states prohibit self-help repossession outright, and most that allow it impose a strict "breach of the peace" standard. See id. at 950-53; ROGER A. CUNNINGHAM ET AL., THE LAW OF PROPERTY 6.80, at 403-04 (2d ed. 1993). Instead, all states have created summary eviction procedures designed to afford tenants notice and an opportunity to appear before a judge. See RESTATEMENT (SECOND) OF PROPERTY: LANDLORD AND TENANT 14.1-.3 (1977); CUNNINGHAM ET AL., supra, 6.79, at 400-01; see, e.g., Berg v. Wiley, 264 N.W.2d 145, 150-51 (Minn. 1978). In addition, recognizing that tenants who fail to make rent payments may have justification, most states allow tenants to raise defenses, such as the implied warranty of habitability, for consideration by the court. See CUNNINGHAM ET AL., supra, 6.79, at 401.

50. Salisbury Livestock Co. v. Colorado Cent. Credit Union, 793 P.2d 470, 474 (Wyo. 1990) (quoting Cottam v. Heppner, 777 P.2d 468, 472 (Utah 1989)); cf. Stone Mach. Co. v. Kessler, 463 P.2d 651, 654 (Wash. Ct. App. 1970) ("To constitute a 'breach of the peace' it is not necessary that the peace be actually broken ¼ nor is actual personal violence an essential element of the offense."). See generally Jean Braucher, The Repo Code: A Study of Adjustment to Uncertainty in Commercial Law, 75 WASH. U. L.Q. 549, 572-91 (1997) (summarizing case law on self-help repossession); CLARK, supra note 49, 4.05[2][b][i] (same).

51. See CLARK, supra note 49, 4.05[2][b][i], at 4-82 ("A security agreement that purports to waive breach of the peace in advance is not worth the paper it is written on."). As Clark explains, courts have implied this limitation even though Article 9 does not forbid waiver of the right against breach of the peace. See id. Arguably, this restricts the parties' freedom to contract for terms of their own choosing. For discussion of the theoretical and practical difficulty of applying notions of "consent" to mass market, standard-form contract terms, see infra Part IV.

52. UNIF. CONSUMER CREDIT CODE art. 5, 5-112 & cmt. 1 (1974) ("It is necessary ¼ to make it clear that dwellings cannot be entered absent the consent of the occupants except under the supervision of the court."); see AM. JUR. 2D Desk Book Item No. 282 (1992) (summarizing adoption of uniform laws by jurisdiction).

The U3C is not an isolated instance of pro-consumer liberalization. In particular, a number of states have exempted, completely or partially, consumer sales from Article 2's provisions allowing disclaimers of warranty. See, e.g., CONN. GEN. STAT. ANN. 42a-2-316 (West 1990 & Supp. 1998); MASS. GEN. LAWS ANN. ch. 106, 2-316(a) (West 1990); MINN. STAT. ANN. 325.954 (West 1966 & Supp. 1998); WASH. REV. CODE ANN. 62A-2-316 (West 1995); see also Magnuson-Moss Warranty Act, 15 U.S.C. 2301-2310 (1994) (establishing federal minimum standards for warranty protection of tangible consumer products).

53. In a U3C jurisdiction, this question would exist as to private property other than dwellings.

54. Compare, e.g., K.B. Oil Co. v. Ford Motor Credit Co., 811 F.2d 310, 315 (6th Cir. 1987) (upholding repossession of truck being serviced by used truck dealer after misrepresenting to dealer that debtor had consented), Thompson v. Ford Motor Credit Co., 550 F.2d 256, 258 (5th Cir. 1977) (upholding repossession from garage after misrepresenting to garage employees that debtor had consented), and Cox v. Galigher Motor Sales Co., 213 S.E.2d 475, 479 (W. Va. 1975) (upholding repossession made after telling the debtor that truck was being taken to have repairs performed), with, e.g., Chrysler Credit Corp. v. McKinney, 38 U.C.C. Rep. Serv. (CBC) 1409 (Ala. 1984) (invalidating repossession made after luring debtor to leave car with dealership for repairs), rev'd on reh'g and remanded on other grounds, 456 So. 2d 1069 (Ala. 1984) and Ford Motor Credit Corp. v. Byrd, 351 So. 2d 557 (Ala. 1977) (invalidating repossession made by luring debtor to a meeting to continue good-faith settlement discussions). See generally Braucher, supra note 50, at 587-91 (discussing cases and concluding that they "leave confusion about what sorts of tricks are impermissible"); CLARK, supra note 49, 4.05[2][b], at 4-85 to 4-86, 4-88 to 4-89 (observing that "a little stealth is all in the game of repossession," but describing some cases finding impermissible "chicanery"); ALPHONSE M. SOUILLANTE & JOHN R. FONSECA, THE MODERN LAW OF COMMERCIAL PRACTICES 1368-69 (Supp. 1997) (observing that consent gained by trickery is not meaningful, but that "[t]he majority of cases liberally interpret what 'breach of the peace' means in favor of the creditor").

55. See Peter H. Lewis, Conspiracy Buffs See Things to Worry About in Microsoft's Electronic Software Registry, N.Y. TIMES, June 19, 1995, at D3.

56. See RESTATEMENT (SECOND) OF TORTS, 652B (1977); id. 652B (listing decisions recognizing this tort theory from 31 states and the District of Columbia). See generally ANITA L. ALLEN, UNEASY ACCESS: PRIVACY FOR WOMEN IN A FREE SOCIETY 57-61 (1988) (discussing the sources and rationales for the concept of privacy rights in one's home). Similarly, the U3C represents a judgment that nonconsensual intrusion into a private home, whether or not violent, is objectionable in its own right. See supra note 52 and accompanying text.

57. See U.C.C. 2B-715(b)(2) (July 24-31, 1998 Draft).

58. See id. 2B-715(e) (prohibiting repossession if licensor's information is so commingled with licensee's information that separation is infeasible), 2B-715(f) (according repossession rights to licensee who provides information to licensor subject to use restrictions). Neither restriction would appear to apply to word processing files containing documents created by licensees. Cf. U.C.C. 2B-310(c) (July 24-31, 1998 Draft) (excluding from the definition of authorized "electronic regulation of performance" restrictions that interfere with a licensee's access to his or her own information "by means other than by use of the licensor's information or informational rights"). By contrast, a creditor who takes personal property of the debtor during a repossession-such as tools or other belongings left in the trunk of a car-must return the property quickly or pay conversion damages for loss of use. See CLARK, supra note 49, 12.05[3][b].

59. See, e.g., Sheldon W. Halpern, Rethinking the Right of Privacy: Dignity, Decency, and the Law's Limitations, 43 RUTGERS L. REV. 539, 541 n.12 (1991); JULIE C. INNESS, PRIVACY, INTIMACY, AND ISOLATION 56-69 (1992); Jerry Kang, Information Privacy in Cyberspace Transactions, 50 STAN. L. REV. 1193, 1202-03 (1998).

60. They might do so indirectly-if, for example, a licensor attempted to prevent use of its products to inform or facilitate such decisions. However, this type of privacy violation probably could not be accomplished without a concurrent invasion of informational or spatial privacy interests.

61. For discussion of the privacy concerns and other concerns raised by monitoring intellectual activities, see Cohen, supra note 9, at 994-1019. For more general discussion of informational privacy issues, see Kang, supra note 59; see also Friedman, supra note 42 at *, *-64.

62. See Friedman, supra note 42, at *, *-64.

63. See RESTATEMENT (SECOND) OF TORTS 652B cmts. c-d (1977).

64. Cf. Jeffrey Reiman, Driving to the Panopticon, 11 SANTA CLARA COMPUTER & HIGH TECH. L.J. 27, 32 (describing the level of privacy enjoyed by individuals as a function of both formal (legal) and material (physical) conditions).

65. Cf. Cohen, supra note 7, at 398-402 (arguing that technology both constitutes and is constituted by social values and institutions); Lawrence Lessig, Governance 5-9 (Aug. 23, 1998 Draft) (arguing that choices about the technical architectures of cyberspace are, inevitably, also choices about the regularity of cyberspace behavior) <http://cyber.law.harvard.edu/works/lessig/NY_q_d2.pdf>.

66. Compare, e.g., Marks v. Bell Tel. Co., 331 A.2d 424, 431 (Pa. 1975) (holding that secret taping of conversations in police station holding room not actionable as invasion of privacy because recordings were not actually replayed and were routinely erased several weeks after being made), with, e.g., Amati v. City of Woodstock, 829 F. Supp. 998, 1010-11 (N.D. Ill. 1993) (holding that secret taping of conversations actionable as invasion of privacy whether or not anyone actually listened to the recordings, because "[o]ne would never obtain the full benefits accorded to a private place if he or she reasonably believed someone would or could be listening"), Harkey v. Abate, 346 N.W.2d 74, 76 (Mich. Ct. App. 1983) (holding that see-through panels above stalls in women's bathroom at roller skating rink constituted invasion of privacy whether or not panels actually were used to view plaintiffs), and Hamberger v. Eastman, 206 A.2d 239, 243 (N.H. 1965) (holding that listening device installed by landlord in tenants' bedroom constituted invasion of privacy whether or not landlord ever used it).

67. See, e.g., Marks, 331 A.2d at 433 (Pomeroy, J., concurring in the result) ("The tort of intrusion is designed to protect an individual, not against what other human beings think of him, but rather against the very act of interference with his seclusion."); Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, in PHILOSOPHICAL DIMENSIONS OF PRIVACY: AN ANTHOLOGY 156, 165 (Ferdinand David Schoeman, ed. 1984) ("The fundamental fact is that our Western culture defines individuality as including the right to be free from certain types of intrusions. This measure of personal isolation and personal control over the conditions of its abandonment is of the very essence of personal freedom and dignity ...."); Thomas Scanlon, Thomson on Privacy, 4 PHIL. & PUB. AFF. 315, 317 (1975) ("The interests to which an account of privacy must refer thus include, in addition to specific interests in not being seen, overheard, etc., broader interests in having a zone of privacy in which we can carry out our activities without the necessity of being continually alert for possible observers, listeners, etc."); cf. Stanley v. Georgia, 394 U.S. 557, 565-66 (1969) (holding that the First Amendment protects "the right to satisfy [one's] intellectual and emotional needs in the privacy of [one's] own home"); MARGARET JANE RADIN, REINTERPRETING PROPERTY 56-63 (1982) (arguing that property rights in the home are a necessary constituent of individual personhood); Claudia W. Tuchman, Note, Does Privacy Have Four Walls? Salvaging Stanley v. Georgia, 94 COLUM. L. REV. 2267, 2283-84 (1994) (characterizing constitutionally-protected privacy as "the right of an individual to conduct a private life free from state interference").

Fourth Amendment protection against unreasonable searches and seizures serves similar values. See, e.g., Boyd v. United States, 116 U.S. 616, 630 (1885) ("It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property ...."); see also Michael Adler, Cyberspace General Searches, and Digital Contraband: The Fourth Amendment and the Net-Wide Search, 105 YALE L.J. 1093, 1108-13 (1996) (emphasizing importance of the home as a zone of autonomy).

68. Technically, of course, the licensor and the consumer "agreed" to the restrictions; for discussion of whether it makes sense to treat these restrictions as the subject of genuine mutual consent, and why it might not, see infra Part IV.

69. According to the Restatement view, even telephone calls may constitute intrusion upon seclusion, depending on the circumstances. See RESTATEMENT (SECOND) OF TORTS, 652B cmt. b, illus. 5 (1977).

70. See, e.g., CAL. PUB. UTIL. CODE 779, 779.1 (West Supp. 1998); CONN. GEN. STAT. ANN. 16-262d (West 1988 & Supp. 1998); N.H. REV. STAT. ANN. 363-B:1 (1995); N.Y. PUB. SERV. LAW 47-32 (McKinney 1989). Public utilities in general are heavily regulated. Thus, taking seriously an argument that information providers are "like" public utilities is unlikely to lead us to a model law that emphasizes "freedom of contract."

71. U.C.C. 2A-523(1), (3)(a) (emphasis added), 2A-525(2), (3) (1990).

72. U.C.C. 9-503 (1972).

73. See CLARK, supra note 49, 4.02[1]; 9 WILLIAM D. HAWKLAND ET AL., UNIFORM COMMERCIAL CODE SERIES 9-503:1, at 667-69 (1997); WHITE & SUMMERS, supra note 45, 25-2, at 902. When events of default are not specifically defined, courts will require failure of payment or other clearly "material" breach to justify repossession. See, e.g., Bankwest, N.A. v. Groseclose, 535 N.W.2d 86 (S.D. 1995); Stillwell Welding Co. v. Colt Trucking, 741 P.2d 598 (Wyo. 1987); CLARK, supra note 49, 4.02[1].

74. See CLARK, supra note 49, 4.02[2][a], at 4-9.

75. See id. at 4-8 to 4-9, 4-13.

76. See id. 4.02[2][a], at 4-12.

77. See id. 4.02[3], 12.05[1][b]-[c]. Each of the above judicially-developed limitations is informed by the general duty of good faith required by U.C.C. section 1-203. In general, however, " 1-203 does not support a cause of action where no other basis exists under the U.C.C." CLARK, supra note 49, 4.02[4], at S4-18; see also id. 4.02[2][b], at 4-11 (citing U.C.C. 1-208 (1995)) (noting that 1-203 does not limit the use of demand notes, which by definition may be called for any reason or no reason). Article 2B appears to follow the same approach.

78. UNIF. CONSUMER CREDIT CODE art. 5, 5-109, -110, -111(a) (1974); see CLARK, supra note 49, 12.05[1][a].

79. See U.C.C. 2B-310 & Reporter's Note 3 (July 24-31, 1998 Draft). Arguably, Article 2B's provision for the unenforceability of unconscionable terms offers a way out of this difficulty. See id. 2B-110. It is unlikely, however, that this is the result the drafters intended.

80. See U.C.C. 2B-702, 2B-715 (July 24-31, 1998 Draft).

81. See American Computer Trust Leasing v. Jack Farrell Implement Co., 763 F. Supp. 1473 (D. Minn. 1991) (rejecting tort claims for electronic deactivation because plaintiff's contract with software vendor gave vendor the right to deactivate software if plaintiff failed to make payments), aff'd on other grounds sub nom. American Computer Trust Leasing v. Boerboom Int'l, Inc., 967 F.2d 1208 (8th Cir. 1992); Clayton X-Ray Co. v. Professional Sys. Corp., 812 S.W.2d 565 (Mo. Ct. App. 1991) (affirming award of punitive damages against software vendor that deactivated software, even though plaintiff was liable to vendor for failing to pay vendor's bill, because vendor had no "legal right" to deactivate software); Franks & Son, Inc. v. Information Solutions, No. 88-C-1474E (N.D. Okla. Dec. 23, 1989), 1989 Cptr. Indus. Litig. Rep. (Andrews) 8927-35 (Jan. 23, 1989) (rejecting software vendor's argument that U.C.C. Article 9 authorized deactivation of software because, inter alia, contract did not disclose deactivation code's existence); see also Werner, Zaroff, Slotnick, Stern & Askenazy v. Lewis, 588 N.Y.S.2d 960 (N.Y. Civ. Ct. 1992) (affirming punitive damages award against software consultant who secretly included code that caused plaintiff's software to shut down, in the hope that plaintiff would offer him a service contract to fix the problem, and noting that consultant had "no right" to include the deactivation code); Art Stone Theatrical Corp. v. Technical Programming & Sys. Support, Inc., 549 N.Y.S.2d 789 (N.Y. App. Div. 1990) (holding that vendor that removed essential software code from plaintiff's system pending resolution of contract dispute could not claim benefit of general release agreement negotiated while code was being withheld if plaintiff could prove duress). Perhaps the most well-known case involving electronic self-help repossession, Revlon v. Logisticon, Inc., No. 70533 (Cal. App. Dep't Super. Ct. filed Oct. 22, 1990), settled before the court could rule on plaintiff's contract and tort claims. See Gary J. Edwards, Self-Help Repossession of Software: Should Repossession Be Available Under Article 2B of the U.C.C.?, 58 U. PITT. L. REV. 763, 778-79 (1997).

82. U.C.C. 2B-310, Reporter's Notes; id. 2B-715, Reporter's Notes.

83. See supra note 40. As discussed infra Part V.C., the Supreme Court has held that private self-help repossession activity does not implicate constitutional due process protection. Even if that rule holds for the self-help authorized by Article 2B, a threshold level of notice to the consumer might be required as a matter of sound commercial policy.

84. See U.C.C. 2B-109(b)-(c) (July 24-31, 1998 Draft) (defining "material" breach to include any conduct likely to cause substantial harm; any conduct substantially likely to cause substantial deprivation of an expected benefit; failure to perform an "essential element" of the contract; the cumulative effect of nonmaterial breaches; and anything else defined in the contract as material).

85. See U.C.C. 9-102 (1972).

86. Consider, for example, a license authorizing the customer to adapt and debug, but not materially alter, a copyrighted software program.

87. See 17 U.S.C. 107, 117 (1994); Acuff-Rose Music, Inc. v. Campbell, 510 U.S. 569 (1994).

88. The licensee may have a First Amendment defense as well. See infra Part V.B.

89. Thus, for example, self-help might be reasonable in the case of a licensee who makes and distributes multiple copies of a covered work outside an academic or research setting, but unreasonable in the case of a licensee who makes one or two copies, or who distributes multiple copies within an academic or research setting. Cf. 17 U.S.C. 107 (1994) (listing education and research among uses of copyrighted works that are likely to be fair); Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417 (1985) (holding home videotaping of broadcast programming for personal viewing purposes to be a fair use).

90. See ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1453 (7th Cir. 1996) ("Terms of use are no less a part of 'the product' than are the size of the database and the speed with which the software compiles listings. Competition among vendors, not judicial revision of a package's contents, is how consumers are protected in a market economy."); Friedman, supra note 42, at *-64; Nimmer, supra note 3, at *-54.

91. See Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach (Sept. 20, 1998 Draft) <http://cyber.harvard.edu/works/lessig/LNC_Q_D2.PDF>. On the remedial significance of this distinction, see infra Part VI. As the existence of tort law demonstrates, product design also has never been exempt from public policy limits.

92. Section 2B-715 would authorize suit for any personal injury that might result. See U.C.C. 2B-715 (July 24-31, 1998 Draft).

93. I am indebted to James Davis of the Xerox Palo Alto Research Center for inspiring this train of thought.

94. Or, still more frighteningly, that electronic regulation of sofa use would be wholly legitimate.

95. Cf. Trotter Hardy, The Ancient Doctrine of Trespass to Web Sites, 1996 J. ONLINE L. art. 7 (1996); Trotter Hardy, Property (and Copyright) in Cyberspace, 1996 U. CHI. LEGAL F. 217 (1996).

96. This argument is considered further infra Part IV.

97. See supra text accompanying notes 13-14 (discussing public-domain status of facts, ideas, and functional principles). "Informational rights" in noncopyrightable works are even narrower. See supra text accompanying notes 14-16 (discussing data misappropriation law and copyright preemption).

98. Common law rights against trespassers are not and never have been absolute. One may not, for example, use deadly force against a trespasser unless one's own life is threatened. See, e.g., Katko v. Briney, 183 N.W.2d 657 (Iowa 1971). And one may trespass on another's property to save one's own life. See, e.g., Vincent v. Lake Erie Transp. Co., 124 N.W. 221 (Minn. 1910). (A trespasser under these circumstances will be held responsible for damages, if any, but that is a separate question. See id. at 222.)

99. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988); JACK H. ARCHER ET AL., THE PUBLIC TRUST DOCTRINE AND THE MANAGEMENT OF AMERICA'S COASTS (1994); Kathryn R. Heidt, Cleaning Up Your Act: Efficiency Considerations in the Battle for the Debtor's Assets in Toxic Waste Bankruptcies, 40 RUTGERS L. REV. 819, 860 (1988) ("The concept here is that there are certain rights in the public that cannot be conveyed by the state."); cf. Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711 (1986) (describing the origins of and justifications for common law doctrines that vest collective property rights in the "unorganized" public). I am indebted to Dan Burk for suggesting this analogy.

100. See, e.g., Mas v. Perry, 489 F.2d 1396 (5th Cir. 1974); Hamberger v. Eastman, 206 A.2d 239 (N.H. 1965); Harkey v. Abate, 346 N.W.2d 74 (Mich. Ct. App. 1983).

101. For further discussion of the origins and errors of this "control theory" of property, see Cohen, supra note 7, at 343-53.

102. See ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1454 (7th Cir. 1996); Bell, supra note 17, at 588-89 n.142; Friedman, supra note 42, at *-57; Maureen O'Rourke, Copyright Preemption After the ProCD Case: A Market-Based Approach, 12 BERKELEY TECH. L.J. 53, 83-87 (1997).

103. See ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS 186-93 (2d ed. 1997) (describing requirements for a perfectly-functioning market); cf. DeLong & Froomkin, supra note 7 ("[T]oday's purchaser of, say, a suite of software programs is faced with needs and constraints that a metric designed to explain the market for pins may leave us poorly prepared to understand.").

104. See Cohen, supra note 7 at 322-28; Rice, supra note 17, at 564-65.

105. See Cohen, supra note 7 at 322-28; Victor P. Goldberg, Institutional Change and the Quasi-Invisible Hand, 17 J.L. & ECON. 461, 483-85 (1974); William T. Vukowich, Lawyers and the Standard Form Contract System: A Model Rule That Should Have Been, 6 GEO. J. LEGAL ETHICS 799, 800-11 (1993); cf. Goldberg, supra note 15, at 484-91 (characterizing the legal institution of the standard form as a societal decision to delegate most commercial rulemaking to private firms). To the contrary, as Vukowich notes, purveyors of standard forms often simply refuse to allow consumers to review the fine print before concluding the transaction. Vukowich, supra, at 806-07. Article 2B would validate this practice, creating obvious practical difficulties for even the most determined comparison shoppers. See U.C.C. 2B-111, 2B-112(b)-(c) & Reporter's Notes 2, 5 (July 24-31, 1998 Draft) (allowing disclosure of terms after purchase but prior to use of the product).

106. See supra text accompanying notes 21-24.

107. In a sense, the notion of a spectrum of theoretical argument is inapposite; as I and others have demonstrated, there is substantial overlap between the two "endpoints." See Cohen, supra note 7, at 322-34, 343-53 (arguing that libertarianism and neoclassical economic theory proceed from the same set of normative premises); Gillian K. Hadfield, The Economics of Copyright: An Historical Perspective, 38 COPYRIGHT L. SYMP. (ASCAP) 1, 41-45 (1988) (same); Mark A. Lemley, Romantic Authorship and the Rhetoric of Property, 75 TEX. L. REV. 873, 896-98 (1997) (same); Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 310 n.109 (1996) (same). See generally C. Edwin Baker, The Ideology of the Economic Analysis of Law, 5 PHIL. & PUB. AFF. 3, 33 (1975) (discussing the convergence of Chicago-style utilitarian and libertarian justifications for market ordering).

108. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 102-03 (1972) (White, J., dissenting).

109. See Edwards, supra note 81, at 786; Henry Gitter, Self-Help Remedies for Software Vendors, 9 SANTA CLARA COMPUTER & HIGH TECH. L.J. 413 (1993); Esther C. Roditti, Is Self-Help a Lawful Contractual Remedy?, 21 RUTGERS COMPUTER & TECH. L.J. 341 (1995); Pamela Samuelson, Embedding Technical Self-Help in Licensed Software, 40 COMM. ACM 13, 16 (Oct. 1997) ("Licensors of software or other information ¼ will generally invoke self-help to destroy the licensed property rather than to preserve its value for resale to another customer.").

In a relative sense, some consumers may end up subsidizing others' uses, in that the prices charged them may be greater than they otherwise would have been. It is appropriate to consider whether these relative subsidies, or quasi-subsidies, represent good policy in a system intended to promote the production and distribution of this particular type of public good. But that is a very different question. See infra text accompanying notes 142-47.

110. The routinely-invoked threat of piracy following loss of control of digital works is overstated, as it is far from clear that every pirated copy represents a lost sale. See, e.g., David M. Hornik, Combating Software Piracy: The Softlifting Problem, 7 HARV. J.L. & TECH. 377, 390 (1994). Moreover, other sanctions (in particular, social norms) work to constrain the kinds of unauthorized distribution that represent significant market threats. Cf. Michael J. Madison, "Legal-Ware": Contract and Copyright in the Digital Age, FORDHAM L. REV. (forthcoming 1999) (discussing the importance of social norms, or "conventions," in determining the practices of copyright users); Michael J. Meurer, Price Discrimination, Personal Use and Piracy: Copyright Protection of Digital Works, 45 BUFFALO L. REV. 845 (1997) (treating the "markets" for piracy and unauthorized personal use as factually and conceptually distinct).

111. See supra Part III.B.

112. William W. Fisher III, Property and Contract on the Internet, 74 CHI.-KENT L. REV. (forthcoming 1998); see also Meurer, supra note 110, at 869-80.

113. For examples of both cases, see ProCD v. Zeidenberg, 86 F.3d 1447, 1449-51 (7th Cir. 1996).

114. See Robert E. Scott, Rethinking the Regulation of Coercive Creditor Remedies, 89 COLUM. L. REV. 730 (1989). Scott's work addresses the economic justifications for self-help generally; as far as I am aware, he has not written about self-help in the particular context of Article 2B.

115. See id. at 744-49.

116. Id. at 750-51.

117. Id. at 763-64.

118. See id. at 764-65. In fact, I am not willing to accept Scott's argument in its entirety, but that is a subject for another occasion.

119. Id. at 765; see supra text accompanying notes 21-24.

120. See Scott, supra note 114, at 782-86. Ultimately, Scott concludes that fairness-based justifications for prohibiting creditor self-help are illusory because consumers who pay their debts bear the costs. Id. At most (and again), this argument might support electronic self-help rights in cases of nonpayment. With regard to behavioral restrictions, particularly those aimed at copyright user privileges, it is unpersuasive. In the context of copyright, arguments from redistribution ignore the possibility that the decision to accord user privileges, with the understanding that these privileges may affect prices, represents a societal judgment that a regime of limited author-owner control is best-suited to promoting creative progress and public access to creative and informational works. See Cohen, supra note 7, at 383-90. Without more information, the fact that consumers "bear the costs" of copyright's user privileges does not tell us which regime is better.

121. See infra text accompanying notes 142-147.

122. Randy E. Barnett, The Sound of Silence: Default Rules and Contractual Consent, 78 VA. L. REV. 821, 831-55, 860-73 (1992).

123. See id. at 855-59, 875-97.

124. See, e.g., Robert D. Cooter, Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant, 144 U. PA. L. REV. 1643 (1996). But see Eric A. Posner, Law, Economics, and Inefficient Norms, 144 U. PA. L. REV. 1697 (1996) (arguing that the norms developed by close-knit communities may also be inefficient).

125. See Madison, supra note 110. See generally Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943 (1995) (exploring the complex interrelation of norms and law); Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903 (1996) (same).

126. See ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES 169 (1991); Lewis A. Kornhauser, Are There Cracks in the Foundations of Spontaneous Order?, 67 N.Y.U. L. REV. 647, 652-55 (1992); Kerry Lynn Macintosh, Liberty, Trade, and the Uniform Commercial Code: When Should Default Rules Be Based on Business Practices?, 38 WM. & MARY L. REV. 1465 (1997); see also Cooter, supra note 124, at 1684-85.

127. Cf. Macintosh, supra note 126, at 1534-40.

128. See, e.g., Edward Rubin, Efficiency, Equity, and the Proposed Revision of Articles 3 and 4, 42 ALA. L. REV. 551, 562-69 (1991) (arguing that the provisions of Articles 3 and 4 of the U.C.C. that allocate the entire loss from forged checks to consumers, consistent with banking industry practice, are inefficient because banks are in the best position to develop procedures for reducing the risk of loss); Macintosh, supra note 126, at 1525-34 (same).

129. See Jessica Litman, The Exclusive Right to Read, 13 CARDOZO ARTS & ENT. L.J. 29 (1996); Madison, supra note 110; Lloyd L. Weinreb, Fair's Fair: A Comment on the Fair Use Doctrine, 103 HARV. L. REV. 1137, 1152-53 (1990). See generally Cooter, supra note 124, at 1664-65 (discussing methodological issues that attend the identification of norms).

130. See U.C.C. 2-104(1) (1994) (defining "merchant"); Ingrid Michelsen Hillinger, The Article 2 Merchant Rules: Karl Llewellyn's Attempt to Achieve the Good, the True, the Beautiful in Commercial Law, 73 GEO. L.J. 1141 (1985); Zipporah Batshaw Wiseman, The Limits of Vision: Karl Llewellyn and the Merchant Rules, 100 HARV. L. REV. 465 (1987).

131. See, e.g., U.C.C. 9-307(2) (1972) (providing that a buyer for value of consumer goods for personal, family, or household use takes the goods free of any security interest, even if perfected, as long as the buyer is unaware of the security interest); id. 9-505(1) (providing that if a secured party repossesses consumer goods from a debtor who has paid at least 60% of the price or loan amount, the secured party must resell the goods within 90 days or be liable to the debtor for conversion); see also supra note 52 and accompanying text (discussing additional protections afforded in some states by the Uniform Consumer Credit Code, as well as state and federal modifications to Article 2's rules governing warranties for tangible consumer products). And, as one might expect, a debate has raged over whether such protections are economically efficient, and whether there might be other reasons for retaining them even if they are not. See Elizabeth Warren, Making Policy with Imperfect Information: The Article 9 Full Priority Debates, 82 CORNELL L. REV. 1371 (1997).

132. See U.C.C. 2B-208, Reporter's Note 2 (July 24-31, 1998 Draft); supra note 44; see also Braucher, supra note 50, at 558 ("Consumer protection appropriately also applies to what I call 'quasi consumers'-sole proprietorships and small businesses without the sophistication and resources to use legal counsel regularly."); Hillinger, supra note 130, at 1184 (suggesting that a consumer-nonconsumer distinction would be more appropriate for Article 2); Wiseman, supra note 130, at 471, 522-24 (same).

133. See supra text accompanying note 58.

134. Cf. Goldberg, supra note 105, at 476-81 (observing that it is only logical for participants in markets to seek to enhance their profits by altering existing institutions to their advantage).

135. See, e.g., Frank H. Easterbrook & Daniel R. Fischel, The Corporate Contract, 89 COLUM. L. REV. 1416 (1989); Friedman, supra note 42, at *-58. See generally Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 YALE L.J. 87, 89-90 (1989) (collecting sources).

136. See Ayres & Gertner, supra note 135.

137. See, e.g., DANIEL W. BROMLEY, ECONOMIC INTERESTS AND INSTITUTIONS: THE CONCEPTUAL FOUNDATIONS OF PUBLIC POLICY 65-66 (1989); Samuel Bowles & Herbert Gintis, The Political Economy of Contested Exchange, in RETHINKING POWER 196, 221 (Thomas Wartenburg ed., 1992); Cohen, supra note 7, at 362-70.

138. See O'Rourke, supra note 102, at 83-87 (suggesting this approach for contract terms that alter the copyright balance). Ayres and Gertner term this a "penalty default" approach because it penalizes the more informed party (here, the licensor) for failure to disclose information by applying a default rule that is undesirable from that party's perspective. See Ayres & Gertner, supra note 135, at 97-98. This is the model chosen, for example, for U.C.C. 2-316, which requires express disclaimer of the implied warranty of merchantability. As noted above, a number of states and the federal government have concluded that the penalty default model for 2-316 provides inadequate consumer protection. See supra note 52.

139. See ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449-50 (7th Cir. 1996) (outlining a similar strategy); O'Rourke, supra note 102, at 62-63 (discussing the efficiencies available to information providers as a result of price discrimination). Since most consumers in the real world operate under budget constraints, this would not necessarily mean that consumers did not value the absence of electronic monitoring and self-help.

140. It is for this reason that leading scholars have for decades described this regime as one of "private legislation." See Goldberg, supra note 105, at 468 n.15, 484-91; Friedrich Kessler, Contracts of Adhesion-Some Thoughts About Freedom of Contract, 43 COLUM. L. REV. 629 (1943); Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV. 1173 (1984); W. David Slawson, Standard Form Contracts and Democratic Control of Law-Making Power, 84 HARV. L. REV. 529, 538-42 (1971); Vukowich, supra note 105, at 800-11; cf. Robert P. Merges, Intellectual Property and the Costs of Commercial Exchange: A Review Essay, 93 MICH. L. REV. 1570, 1611-13 (1995) (offering a narrower definition based on antitrust-style market power). For a more detailed discussion of the distribution and exercise of "bargaining power" in the mass market for creative and informational works, see Cohen, supra note 7, at 356-77.

141. See Ayres & Gertner, supra note 135, at 88-89 (discussing economic justifications for immutable rules).

142. See, e.g., Baker, supra note 107, at 32-41; BROMLEY, supra note 137, at 75-83 (demonstrating that different initial distributions of entitlements will generate different market equilibria, and arguing that it is incoherent to speak of the "efficient" outcome while ignoring policy considerations that affect the initial distribution); ANDREAS A. PAPANDREOU, EXTERNALITY AND INSTITUTIONS 200-04, 225 (1994).

143. See Cohen, supra note 7, at 382-98 (describing the shared external benefits conferred by the public law of copyright and the nonmarket values implicated in decisions about the appropriate regime of rights in creative and informational works).

144. See id. at 335-44; see also Mark A. Lemley, The Economics of Improvement in Intellecutual Property Law, 75 TEX. L. REV. 989, 1048-68 (1997).

145. See Cohen, supra note 7, at 384-87; see also Lemley, supra note 144, at 1056-58.

146. See Cohen, supra note 7, at 384-90. User privileges that increase the accessibility of creative and informational works also contribute to the creation of a shared basis for social discourse and the development of a rich and robust public sphere independent from government contol. See id. at 384-87, 394-98; Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 347-64 (1996); cf. C. Edwin Baker, Giving the Audience What It Wants, 58 OHIO ST. L.J. 311, 350-66 (1997) (describing shared external benefits and costs produced by mass media products). These shared social benefits also must be included in any assessment of the total value generated by creative and informational works.

147. See Cohen, supra note 7, at 387-90.

148. 17 U.S.C. 301(a) (1994); see supra notes 15-17 and accompanying text.

149. See Rice, supra note 17, at 602-04.

150. See, e.g., Cohen, supra note 7, at 322-28; Cohen, Some Reflections, supra note 17, at 181-82; Elkin-Koren, supra note 17, at 107-10; Dennis S. Karjala, Federal Preemption of Shrinkwrap and On-Line Licenses, 22 U. DAYTON L. REV. 511, 528-33 (1997); Robert P. Merges, Intellectual Property and the Costs of Commercial Exchange: A Review Essay, 93 MICH. L. REV. 1570, 1611-13 (1995); see also Jane C. Ginsburg, Copyright, Common Law, and Sui Generis Protection of Databases in the United States and Abroad, 66 U. CIN. L. REV. 151, 166-70 (1997) (agreeing that the rights created by mass market contracts approach property rights, but suggesting that copyright policy supports allowing such contracts in the case of uncopyrightable databases).

151. See U.S. CONST. art. VI, cl. 2; Gade v. National Solid Waste Management Ass'n, 505 U.S. 88, 108 (1992); Felder v. Casey, 487 U.S. 131, 138 (1988).

152. Compare Freightliner Corp. v. Myrick, 514 U.S. 280, 288 (1995) ("The fact that an express definition of the pre-emptive reach of a statute 'implies' ¼ that Congress did not intend to pre-empt other matters does not mean that the express clause entirely forecloses any possibility of implied pre-emption."), with Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992) ("When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a 'reliable indicium of congressional intent with respect to state authority,' ¼ 'there is no need to infer congressional intent to pre-empt state laws from the substantive provisions' of the legislation.") (citations omitted).

153. See Myrick, 514 U.S. at 288.

154. Indeed, Congress' codification of the first sale doctrine, under which the initial sale of an object embodying a copyrighted work exhausts the copyright owner's right to control the further disposition of that object, suggests just the opposite. See 17 U.S.C. 109(a) (1994).

155. See Goldstein v. California, 412 U.S. 546, 560 (1973).

156. Compare Aronson v. Quick Point Pencil Co., 440 U.S. 257, 262 (1979) (allowing enforcement of a contract requiring ongoing royalty payments for the right to use a trade secret that had subsequently fallen into the public domain, but noting that the two-party agreement did not prevent others from copying the technology) and Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 475-76 (1974) (allowing state law protection of trade secrets, but noting that the protection afforded by trade secrecy laws is substantially less complete), with Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989) (striking down state statute that prohibited a commonly-used method of reverse engineering unpatented boat hulls), Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 230 (1964) (holding that states may not use their unfair competition laws to confer perpetual protection on functional but unpatentable product features), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 237 (1964) (same). See generally Howard B. Abrams, Copyright, Misappropriation, and Preemption: Constitutional and Statutory Limits of State Law Protection, 1983 SUP. CT. REV. 509.

157. U.S. CONST. art. I, 8, cl. 8.

158. See Graham v. John Deere Co., 383 U.S. 1, 6 (1966) (holding that Intellectual Property Clause prohibits Congress from "enlarg[ing] the patent monopoly without regard to the innovation, advancement, or social benefit gained thereby," and from "issu[ing] patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available"); Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-50 (1991) (holding that Intellectual Property Clause requires originality as a prerequisite for copyright, and therefore bars protection for facts and ideas).

159. See Feist, 499 U.S. at 349-50 (holding denial of copyright protection for facts constitutionally compelled); Baker v. Selden, 101 U.S. 99, 103-104 (1879) (holding methods of operation protectable, if at all, only under the patent system, and indicating that the Intellectual Property Clause informs this result); The Trade-Mark Cases, 100 U.S. 82, 93-94 (1879) (holding that Intellectual Property Clause does not authorize grant of exclusive rights in trademarks).

160. See U.S. CONST. art. I, 8, cl. 3 (Commerce Clause); 15 U.S.C. 1051, 1058, 1125 (1994) (authorizing federal registration of and/or protection for trademarks, trade dress, and other designators of product origin used in connection with goods or services in interstate commerce).

161. See, e.g., Railway Labor Executives Ass'n v. Gibbons, 455 U.S. 457, 468-69 (1982) (holding that Congress may not invoke the commerce power to enact bankruptcy legislation that violates the Bankruptcy Clause's uniformity requirement).

162. See Marci A. Hamilton, The Dormant Copyright Clause, 66-70 (1998) (draft unpublished manuscript, on file with author); David L. Lange, The Intellectual Property Clause in Contemporary Trademark Law: An Appreciation of Two Recent Essays and Some Thoughts About Why We Ought to Care, 59 LAW & CONTEMP. PROBS. 213, 225-44 (Spring 1996); Malla Pollack, Unconstitutional Incontestability? The Intersection of the Intellectual Property and Commerce Clauses of the Constitution: Beyond a Critique of Shakespeare Co. v. Silstar Corp., 18 SEATTLE U. L. REV. 259, 313-20 (1995).

163. Thus, the rule of Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946), does not apply here. See id. at 419-27 (holding that commerce power encompasses congressional authorization for states to discriminate against interstate commerce).

164. See Goldstein v. California, 412 U.S. 546, 560 (1973); Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 482-83 (1974) (citing Goldstein). For criticism of the Goldstein decision, see Abrams, supra note 156, at 527-30.

165. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-50 (1991) (reasoning that the constitutionally-granted copyright power requires that facts, ideas, and the like remain in the public domain as building blocks for subsequent creators to use); Graham v. John Deere Co., 383 U.S. 1, 9 (1966) (reasoning that constitutionally-granted patent power requires that insufficiently innovative advances remain in the public domain, because of the high social cost of monopoly when weighed against "the inherent free nature of disclosed ideas"); Abrams, supra note 156, at 579; Lange, supra note 162, at 225-44; David Lange, Copyright and the Constitution in the Age of Intellectual Property, 1 J. INTELL. PROP. L. 119, 130-34 (1993); L. Ray Patterson, Copyright Overextended: A Preliminary Inquiry into the Need for a Federal Statute of Unfair Competition, 22 U. DAYTON L. REV. 385, 394-95 (1992); cf. Pollack, supra note 162, at 313-20.

166. In allowing states to afford their own forms of protection for potentially protectable works, the Court noted that states may have special interests in particular innovations, and that the framers granted intellectual property powers to Congress because they believed that a state-by-state patchwork of protection would be ineffective. See Goldstein, 412 U.S. at 556-58. Abrams, in particular, has raised serious objections to this reasoning. See Abrams, supra note 156, at 527-30. Even taken at face value, however, it does not justify allowing state-level protection that applies (via choice-of-law clauses) extraterritorially, and is so effective that it frustrates the federal scheme. Cf. Paul J. Heald, Comment, Unfair Competition and Federal Law: Constitutional Restraints on the Scope of State Law, 54 U. CHI. L. REV. 1411 (1987) (arguing that federal trademark and unfair competition law should preempt extraterritorial application of state unfair competition law via multistate injunctions). Just as the states have not reserved the power to frustrate Congress' commerce authority, they also have not reserved the power to frustrate its intellectual property authority, but only the right to adopt limited forms of protection that supplement federal incentives to innovate.

167. See New York Times Co. v. Sullivan, 376 U.S. 254, 264-65 (1964) (holding that Alabama libel law violated First and Fourteenth Amendments as applied to critics of a public official's conduct); Cohen, supra note 9, at 1020-21; cf. Cohen v. Cowles Media Co., 501 U.S. 663, 668 (1991) (holding that enforcement of promissory estoppel claim constituted state action).

168. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555-60 (1985); Lange, supra note 162, at 239-40; see also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575-76 (1994).

169. Cf. Bernstein v. United States Dep't of State, 922 F. Supp. 1426, 1429 (N.D. Cal. 1996) (holding that computer source code is speech protected by the First Amendment).

170. As a facially content-neutral law that burdens speech, Article 2B would need to undergo "heightened" or "intermediate" scrutiny. See Turner Broad. Sys. v. FCC, 114 U.S. 2445, 2469 (1994); see also Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 740-53 (1996) (applying Turner scrutiny to content-based legislation allowing private cable operators to prohibit "patently offensive" programming on leased channels). For an idea of how the analysis might go, see Cohen, supra note 9, at 1024-28. Briefly, it is difficult to imagine a government interest "substantial" enough to justify wholesale contractual displacement of core First Amendment rights of comment and criticism, and easy to imagine ways in which Article 2B might be tailored to prevent that result.

171. See Connecticut v. Doehr, 509 U.S. 1 (1991); Mitchell v. W.T. Grant & Co., 416 U.S. 600, 615-20 (1974); Fuentes v. Shevin, 407 U.S. 67, 96 (1972); see also Mathews v. Eldridge, 424 U.S. 319, 339-49 (1976) (setting forth a three-part balancing test for determining the level of procedural protection to be afforded prior to a state-ordered deprivation of property). The exact amount of "process" that should be required before a court-ordered seizure of information products is a matter for debate. Doehr suggests that due process requires a hearing when the facts alleged to support the seizure are not readily susceptible of documentary proof. See Doehr, 509 U.S. at 13-15. This is likely to be the case when fair use is claimed, since the challenged use must be considered in light of the totality of the circumstances. Doehr also suggests that exigent circumstances might justify granting a seizure based only on an ex parte judicial hearing, and affording the debtor a post-deprivation hearing. See id. at 16-18. As discussed above, intangible collateral generally does not raise the same exigency concerns as physical, rivalrous collateral. See supra notes 107-10 and accompanying text. Finally, the Doehr Court did not reach the question whether the Due Process Clause requires that the party seeking the seizure post a bond. See id. at 18. But see id. at 18-21 (plurality) (arguing that a bond is constitutionally required).

172. 436 U.S. 149 (1978).

173. See, e.g., Paul Brest, State Action and Liberal Theory: A Casenote on Flagg Brothers v. Brooks, 130 U. PA. L. REV. 1296 (1982).

174. The capture of the Article 2B drafting process has been alleged by numerous observers. See, e.g., Gail Hillebrand, The Uniform Commercial Code Drafting Process: Will Articles 2, 2B and 9 Be Fair to Consumers?, 75 WASH. U. L.Q. 69 (1997) (arguing that the U.C.C. drafting process systematically disadvantages consumer interests); Kaner, supra note 19 (describing information providers' role in the Article 2B drafting process); Consumer Project on Technology, Protest Page on: Uniform Commercial Code Article 2B (visited Nov. 7, 1998) <http://www.cptech.org/ucc/ucc.html>.

175. See Larry E. Ribstein & Bruce H. Kobayashi, An Economic Analysis of Uniform State Laws, 25 J. LEGAL STUD. 131 (1996); Alan Schwartz & Robert E. Scott, The Political Economy of Private Legislatures, 143 U. PA. L. REV. 595 (1995); Robert E. Scott, The Politics of Article 9, 80 VA. L. REV. 1783 (1994).

It is perhaps unsurprising that initial efforts to integrate the insights of public choice theory and the legal understanding of the public-private distinction have been in the area of antitrust. See Mark A. Lemley & David McGowan, Antitrust Immunity: State Action and Federalism, Petitioning and the First Amendment, 17 HARV. J.L. & PUB. POL'Y 293 (1994); John S. Wiley, Jr., A Capture Theory of Antitrust Federalism, 99 HARV. L. REV. 713, (1986). Under the antitrust laws, the NCCUSL probably would be considered analogous to a private standard-setting organization, with the result that the state-action immunity doctrine would not shield from judicial scrutiny efforts to coopt the standard-setting process. See, e.g., Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988); Lemley & McGowan, supra note 175, at 308-13.

176. See, e.g., Brest, supra note 173; Morton J. Horwitz, The History of the Public/Private Distinction, 130 U. PA. L. REV. 1423 (1982); Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction, 130 U. PA. L. REV. 1349 (1982).

177. See Cohen, supra note 9, at 1022-23; cf. Flagg Bros., 436 U.S. at 162 n.12 ("This is not to say that dispute resolution between creditors and debtors involves a category of human affairs that is never subject to constitutional constraints."). This is doubly so for mass market information providers, whose boilerplate "agreements" operate as quasi-legislative regimes. See supra note 140 and accompanying text.

178. See supra notes 151-173 and accompanying text. Ordinarily, these will be mass market license terms, for the reasons suggested supra notes 111-126 and accompanying text; however, I do not intend to suggest that terms in negotiated licenses may never be subject to preemption.

179. See supra Part II.

180. Fair use, the idea-expression distinction, and preemption traditionally have been raised (and conceived) as defenses to claims of infringement. See, e.g., 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT, 13.03[B][2]-[4], 13.05, p. 13-149 (46th rel. 1998).

181. The simplest and best way to restore the balance that copyright law was designed to establish would be to set better ground rules-including some immutable rules, see supra text accompanying note 141-for digitally-mediated transactions in creative and informational works. The Article 2B drafting committee could acknowledge the implications of electronic private ordering of "informational rights" and exercise its power more responsibly. See, e.g., J.H. Reichman & Jonathan A. Franklin, Privately Legislated Intellectual Property Rights: The Limits of Article 2B of the U.C.C. 26-45 (Apr. 10, 1998) (draft unpublished manuscript, on file with author) (advocating the inclusion of a "public interest unconscionability" provision to protect "the public interest in education, science, research, technological development and the preservation of competition"); see also U.C.C. 2B-105(b) & Reporter's Note 3 (July 24-31, 1998 Draft) (noting the introduction and adoption of a similar motion at the NCCUSL's July 1998 Annual Meeting, but implementing the public policy limitation in substantially watered-down form). Instead, the drafters have elected an empty and disingenuous formalism that pleads lack of jurisdiction to address the preemption issue even as it assiduously undermines federal interests. See U.C.C. 2B-105, Reporter's Note 3 (July 24-31, 1998 Draft); id. at 10-12. Alternatively, Congress could impose limits on techno-contractual displacement of copyright. See, e.g., Digital Era Copyright Enhancement Act, H.R. 3048, 105th Cong. (1997) (rendering unenforceable "non-negotiable license terms" that abrogate fundamental copyright policy, as expressed in statutory limitations on copyright protection). Thus far, however, Congress has failed to do so; instead, it too has deferred substantially to private ordering, electing not to confront the conflict brewing between digital standard forms and traditional (and constitutionally-mandated) copyright principles. See Digital Millennium Copyright Act, Pub. L. No. 105-304, 3, 112 Stat. 2860 (1998); infra note 200. Even if Congress were to act to restore the balance, however, the new rules still would need to be interpreted and enforced. Thus, the procedural considerations discussed in the text would remain vitally important.

182. U.C.C. 2B-310(d) (July 24-31, 1998 Draft); see id. 2B-715.

183. See U.C.C. 2B-706 (July 24-31, 1998 Draft) (fraud), 2B-709 (damages), 2B-711 (specific performance), 2B-713 (right to continue use), 2B-714 (right to discontinue use); see also id. 2B-208(b) (right to refund if mass market license terms are unacceptable), 2B-616 (same right extended to licensees who acquire information products from a distributor). Article 2B also provides, however, that the license agreement may limit the available remedies "to return of, or delivery to the other party [of] all copies of the information and refund of the contract fee." Id. 2B-703(a).

184. See U.C.C. 2B-715 (July 24-31, 1998 Draft).

185. See Edward L. Rubin, The Code, the Consumer, and the Institutional Structure of the Common Law, 75 WASH. U. L.Q. 11 (1997); see also Braucher, supra note 51, at 557-60.

186. See Rubin, supra note 185, at 21-42.

187. See Braucher, supra note 51, at 557-60.

188. See Rubin, supra note 185, at 58-60 (recommending public enforcement of consumer claims); id. at 33 ("For the last twenty years, federal legislation involving commercial relationships between merchants and consumers has routinely provided for attorney's fee and court cost awards to prevailing consumer plaintiffs."); id. at 41 ("A statutorily liquidated amount, or a mechanical rule by which damages can be calculated without proving actual loss, will lower litigation costs significantly in cases of this nature."); Braucher, supra note 51, at 559 (advocating statutory "specificity concerning what acts are prohibited" and "a remedy that provides a prize worth the trouble and expense of pursuing a lawsuit"); id. at 613-14 (recommending conversion damages as a "minimum statutory penalty" for wrongful repossession that would not be offset against the debt still owing).

189. 15 U.S.C. 45(a)(1) (1994). See generally EDWIN S. ROCKEFELLER, DESK BOOK OF FTC PRACTICE AND PROCEDURE 53-58 (3d ed. 1979) (delineating sources of and limits on FTC jurisdiction).

190. Currently, the Magnuson-Moss Warranty Act covers only warranties relating to "tangible personal property." 15 U.S.C. 2301(1) (1994). The Act and its associated FTC regulations establish requirements for the contents of warranties, including clear and comprehensible disclosure of terms and procedures for asserting claims, and mandate minimum substantive standards for warranty protection. See id. 2301-10; 16 C.F.R. 700 et seq.

191. See supra Part III.B (discussing notice and overbreadth issues).

192. Rubin, supra note 185, at 54.

193. Jane C. Ginsburg, Copyright Without Walls: Speculations on Literary Property in the Library of the Future, 42 REPRESENTATIONS 53, 63-64 (1993). Ginsburg appears to believe, however, that these occasions should be rare. See id. at 63-65.

It is worth noting that patent licensees have similar rights. See Lear, Inc. v. Adkins, 395 U.S. 653, 676 (1969) (invalidating contract terms purporting to estop licensee from challenging patent validity).

194. Electronic mail from Larry Lessig, Professor, Harvard Law School, to recipients of list CO-E-CONF (Nov. 8, 1996) (on file with author) (proceedings of 25-person online focus group convened by the United States Copyright Office, as part of its "Project Looking Forward," to discuss the future course of Internet technology and its implications for copyright); see also Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach (Sept. 20, 1998 Draft) <http://cyber.law.harvard.edu/works/lessig/LNC_Q_D2.PDF>; Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. REV. 1403 (1996).

195. See Lessig, Zones, supra note 194, at 1408 ("One obeys these laws as code not because one should; one obeys these laws as code because one can do nothing else .... In the well implemented system, there is no civil disobedience.").

196. See Lessig, The Law of the Horse, supra note 194, at 25-27.

197. Indeed, section 2B-310 says as much. See U.C.C. 2B-310(b)(2) & Reporter's Note 2 (July 24-31, 1998 Draft) ("This Section distinguishes between active and passive electronic devices .... [A] passive device merely precludes acts that constitute a breach.").

198. Even if the federal courts were to conclude that Article 2B does not conflict with federal copyright law, for that matter, consumers would still have other legitimate First Amendment and privacy-based grounds for objecting to some of its more intrusive remedies. For discussion of these grounds, see Cohen supra note 9. It appears that Congress agrees with this analysis. See Digital Millennium Copyright Act, Pub. L. No. 105-304, 3, 112 Stat. 2860 (1998) (enacting new section 1201 of the Copyright Act, but specifying in section 1201(i) that individuals may tamper with rights management systems to prevent the collection of personally-identifying information).

199. This argument was first set forth in an online discussion group convened by the United States Copyright Office in November 1996. See Electronic mail from Professor Julie Cohen, University of Pittsburgh School of Law, to recipients of list CO-E-CONF (Nov. 8, 1996) (on file with author). I am indebted to Larry Lessig for naming it the "Cohen Theorem." Electronic mail from Professor Lawrence Lessig, Harvard Law School, to recipients of list CO-E-CONF (Nov. 11, 1996) (on file with author); Lawrence Lessig, Tyranny in the Infrastructure, WIRED, May 1997, at 96.

200. I would be remiss not to note that there will soon be additional risks. Congress recently enacted legislation prohibiting this particular form of civil disobedience. See Digital Millenium Copyright Act, Pub. L. No. 105-304, 3, 112 Stat. 2860 (1998). The anti-tampering provisions are subject to a two-year moratorium while the Librarian of Congress assesses their impact on fair use, and to ongoing oversight thereafter. See id. Efforts to amend the bill to make fair use an outright defense to a charge of tampering with or circumventing digital rights management systems were unsuccessful. The analysis in this article suggests, however, that such a defense may be constitutionally mandated. See supra Part V.A-B.

201. It is true that most individuals lack the skills needed to hack rights management code. If such hacking is lawful, though, skilled individuals will be able to sell their services to others. Cf. Cohen, supra note 9, at 1029-30 (arguing that individuals who hack rights management code to preserve constitutionally-protected rights of anonymity will have standing to assert their customers' rights). If the consequences of this "universal private ordering" are unacceptable, other avenues for preserving the copyright balance remain available. See supra note 181.