By Julie E. Cohen ^†

ABSTRACT

The proposed draft of Article 2B grants broad rights to enforce electronically contract provisions governing access to and use of digital works. Purveyors of digital works may engage in electronic self-help following breach of contract, and may also elect to foreclose unauthorized uses ex ante, via electronic "regulation of performance." This Article examines these provisions in light of existing law authorizing self-help repossession of tangible chattels, leading academic justifications for self-help repossession, and federal copyright law and policy. It concludes that the provisions authorize an unprecedented degree of intrusion into private homes and offices, that they lack a sound theoretical basis, and that their adoption would threaten constitutionally-mandated limits on copyright protection. It concludes, further, that the law should afford users of digital works rights of electronic self-help where necessary to preserve the copyright balance.

TABLE OF CONTENTS

I. INTRODUCTION 1090

  II. ELECTRONIC FENCING AND SELF-HELP UNDER ARTICLE 2B 1092

  III. DOCTRINE: SELF-HELP, TRESPASS, AND THE RIGHTS OF PERSONS 1101

  A. SELF-HELP AND PRIVATE SPACES 1102

B. SELF-HELP, NOTICE AND "MATERIALITY" 1110

C. SELF-HELP IN TIME 1115

IV. THEORY: CONSENT, EFFICIENCY, AND NORMS 1118

  V. THE U.C.C., COPYRIGHT, AND THE PUBLIC-PRIVATE DISTINCTION 1128

  A. PREEMPTION AND THE "DORMANT INTELLECTUAL PROPERTY CLAUSE" 1129

B. SPEECH HARMS AND THE FIRST AMENDMENT 1133

C. PRIVATE ENFORCEMENT AND DUE PROCESS 1134

D. PRIVATE INTERESTS AND PUBLIC ACTS 1135

VI. RESTORING THE BALANCE: THE CASE FOR LICENSEE SELF-HELP 1137

  VII. CONCLUSION

I. Introduction

A new wind is blowing in copyright law. For centuries, authors and their assignees have relied primarily on federal copyright law to define and protect their legal rights. Suddenly, that may be about to change. New developments in digital technology offer copyright owners the tantalizing possibility of near-absolute control of their creative and informational content, even after its delivery to end users, via self-enforcing digital contracts. Copyright owners, along with purveyors of other (noncopyrightable) informational content, envision using these contracts to secure-and redefine-their "informational rights."¹ Within this vision of private ordering and technological self-help, contract law rather than copyright law is paramount. Limits on information ownership set by the public law of copyright are conceived as optional restrictions that can be avoided using appropriate contractual language.

Proposed Article 2B of the Uniform Commercial Code (U.C.C.) is designed to play a central role in the restructuring of information law along contract-based lines. Information providers hope that Article 2B will establish, as background principles of commercial law, rules that will enable them to implement their vision of self-enforcing private ordering.² The drafters of Article 2B characterize these rules as broadly consistent with the existing framework of commercial law.³ They suggest, further, that the private agreements reached under such a regime can coexist with federal copyright law without disrupting the balance it seeks to establish.⁴ Information providers agree, and argue that, in any case, such agreements lie beyond copyright's preemptive reach.⁵ This article examines those assertions. It concludes that the provisions of Article 2B threaten a substantial departure from the existing law of self-help, and that this departure cannot be justified by reference either to doctrine or to theory.⁶ Moreover, copyright law and policy point the other way, toward affording self-help rights to users of copyrighted works.

Part II of this article describes the emerging digital "rights management" technologies and traces the history of the provisions of Article 2B that are designed to authorize or facilitate their implementation. Although the most recent draft of Article 2B appears to moderate one of these provisions, issues that earlier drafts had resolved in favor of electronic private ordering will now confront courts. Parts III and IV explore, respectively, the doctrinal foundations of self-help under the U.C.C. and more theoretical models advanced by legal scholars, and conclude that none of the common justifications for commercial private ordering supports according information providers the broad powers of self-help that they claim as a matter of right. To the contrary, Article 2B's self-help provisions raise important problems that the drafters have failed to address. In Parts V and VI, I evaluate the proposed law and emerging practice of electronic self-help against the backdrop of copyright law and policy. Part V examines the role of the public-private distinction in mediating between copyright and contract, and argues that Article 2B is not merely a neutral background for private bilateral agreements, but a public act of social ordering that is flatly inconsistent with copyright and First Amendment principles. Part VI argues that licensees, not licensors, should be accorded rights of electronic self-help when necessary to preserve the balance that the Copyright Act is intended to establish.

II. Electronic Fencing and Self-Help under Article 2B

For information providers, digital networks represent both a promise and a threat. Computer networks eliminate or minimize many of the costs associated with product distribution, and make it possible for small businesses to serve national or even global markets. However, digitized information is easily copied, and networks also minimize the costs of distributing unauthorized copies. Information providers have expressed fears that by making their products available in digital form, they may destroy their own markets. Scholars and industry commentators dispute these predictions of total disaster, and argue that the economic principles that determine profitability in markets in tangible commodities do not necessarily apply to markets in intangibles.⁷ Nonetheless, information providers have stated a reluctance to experiment with digital distribution without additional legal and technological protection against unauthorized copying.⁸

Happily for information providers, digital technologies also offer a solution to their perceived problem. The same technologies that can be used to propagate information can also build fences around it. Together with technology experts, information providers are developing secure packaging and delivery software designed to prevent purchasers and third parties from making unauthorized uses of digital content.⁹ As envisioned by the copyright and information industries, these "rights management systems" will be "capable of detecting, preventing, and counting" almost every conceivable use of a digital work.¹⁰ In addition, these industries lobbied heavily for nearly three years for legislation that would prohibit tampering with or circumventing these systems.¹¹

Unhappily for consumers, however, digital rights management regimes will enable information providers to appropriate far more protection against copying and distribution than intellectual property law now provides. Copyright law allows some reuse of protected expression under a variety of exceptions designed to serve the public interest, and allows any reuse after the term of copyright protection has expired.¹² Copyright also does not attach to facts, ideas, or functional principles; instead, it treats these materials as public domain "building blocks" for future works.¹³ Many compilations of information consist largely of such public domain material and are protected only minimally, if at all, by copyright.¹⁴ The common law tort of data misappropriation provides some protection for uncopyrightable facts, but cannot protect against all copying, since the Copyright Act expressly preempts state-created rights that are "equivalent" to the rights afforded under copyright law.¹⁵ Trade secrecy law protects only information that is not generally known or readily ascertainable, and allows discovery of protected information by reverse engineering and other "proper means."¹⁶ In short, legal protection against unauthorized copying and distribution is incomplete, and is so by design.

Information providers conceive digital rights management systems as self-enforcing contracts, and argue that copyright law does not displace private bargains that alter the distribution of rights and privileges as between the parties.¹⁷ However, courts have differed on the validity, as a matter of contract law, of "shrinkwrap" licenses that purport to restrict the uses of information products based on terms packaged with the product and revealed to the customer after purchase.¹⁸ Accordingly, many information providers have supported efforts to draft a new Article 2B of the Uniform Commercial Code to establish different ground rules for transactions in software, information, and other intangible intellectual products.¹⁹ Among other things, proposed Article 2B is intended to validate self-enforcing shrinkwrap (or "clickwrap") licenses-including mass market standard forms-implemented via digital rights management regimes.²⁰

Proposed Article 2B implements this regime of electronic private ordering primarily through two provisions. Section 2B-310, which applies to performance of the contract, allows "electronic regulation of performance" by either party in specified circumstances.²¹ First, section 2B-310 permits electronic regulation if expressly authorized by a term in the license agreement.²² However, section 2B-310 goes on to create a list of exceptions that virtually swallows this express disclosure rule. The license need not disclose electronic regulation that merely implements a stated temporal or quantitative restriction on use, or enforces "informational rights which were not granted to the licensee."²³ Nor must it disclose electronic regulation that "prevents uses of the information which are inconsistent with the agreement"-apparently, even if copyright law or other applicable "informational rights" law would allow such uses.²⁴

Effectively, section 2B-310 would allow information providers to contract around copyright law without disclosing that fact to users. The Reporter's Notes to section 2B-310 make only oblique mention of copyright preemption. They assert that the provision simply represents "[t]he basic principle ¼ that a contract can be enforced."²⁵ Proposed Article 2B does contain another provision, section 2B-105, that acknowledges the possibility of copyright preemption of particular contract terms; in the accompanying Reporter's Notes, the drafters disclaim jurisdiction to make specific recommendations about preemption.²⁶ Nonetheless, both the Reporter's Notes and the prefatory memorandum accompanying Article 2B make clear their belief that even mass market contracts that are inconsistent with copyright are not necessarily invalid for that reason.²⁷ The drafters describe Article 2B's approach to the question of federal preemption as one of "neutrality"; under this vision, it appears, contract may extend wherever it is not expressly prohibited by Congress or the federal courts.²⁸

Section 2B-715, which applies in the event of a breach by the licensee justifying cancellation of the agreement, governs "self-help repossession" by the licensor.²⁹ Unlike section 2B-310, which has no analogue in the current U.C.C., section 2B-715 is expressly modeled after section 2A-525, which authorizes self-help repossession of leased property by the lessor, and section 9-503, which authorizes self-help repossession of secured collateral by the holder of the security interest.³⁰ Like sections 2A-525 and 9-503, section 2B-715 allows self-help repossession following cancellation if possible "without a breach of the peace."³¹ Cancellation, in turn, requires a material breach or express contractual authorization.³² In addition, section 2B-715 adds the express requirement that the repossession not create "a foreseeable risk of personal injury or significant damage to information or property other than the licensed information."³³

The most recent draft of Article 2B is silent on the question of electronic self-help repossession-or, more precisely, since nothing physical need be reclaimed, electronic self-help deactivation or depossession-of licensed information products. This was not always so. In previous drafts, Article 2B contained a special provision expressly authorizing electronic self-help repossession.³⁴ Section 2B-716 (now omitted) established additional procedural requirements for electronic self-help in cases involving licensed software "material to the licensee's business."³⁵ Such material could be repossessed or "depossessed" electronically only if the licensor first gained physical possession of a copy (subject to the "breach of the peace" limitation) or if the license authorized the repossession and the licensor gave at least ten business days' notice.³⁶ By implication, licensed information consisting of "informational content," or used for personal rather than business purposes, was subject to electronic repossession without physical possession and without notice of any kind, as long as no "breach of the peace" occurred.³⁷

During its short life, proposed section 2B-716 was enormously controversial. The drafting committee itself was deeply divided on the question of electronic self-help, so much so that for a time section 2B-716 existed in two versions, a majority version allowing electronic self-help and a minority version prohibiting it except to the extent expressly authorized by other law.³⁸ The new section 2B-715 simply steers clear of the entire controversy without resolving any of the issues that former section 2B-716 raised. The Reporter's Notes state that the draft "takes no position on whether self-help can be pursued through electronic means."³⁹ This abrupt retrenchment leaves to the courts the task of interpreting the "breach of the peace" and "material breach" limitations in the context of digitally-mediated transactions in creative and informational works.

Together with other provisions of Article 2B that validate mass market "licenses,"⁴⁰ sections 2B-310 and 2B-715 would give information providers enormous power to alter the balance of creator rights and user privileges established by the Copyright Act.⁴¹ This is true even though section 2B-715 now leaves unanswered the question of electronic self-help following cancellation. As Professor Friedman correctly recognizes, the most effective electronic self-help is the kind covered by section 2B-310-so-called "electronic regulation of performance" that simply forecloses potential breach at the outset.⁴² As the technologies of electronic regulation become more sophisticated, a separate right of electronic "repossession" is of less moment. As I have noted, the drafters of Article 2B nonetheless characterize sections 2B-310 and 2B-715 as entirely consistent with the existing framework of commercial law, and indicate their belief that the regimes of private ordering authorized by Article 2B would not violate copyright law or other law or policy.⁴³ The remainder of this article evaluates those contentions.

III. Doctrine: Self-Help, Trespass, And The Rights Of Persons

Both the common law and the U.C.C. have traditionally afforded rights of self-help to vendors and creditors. However, both bodies of law limit the right to enter private property to repossess goods, allowing such entry only when the circumstances indicate consent, or at least acquiescence. Judged against these limits, Article 2B sanctions a degree of intrusion into private homes and offices that is unprecedented. It also authorizes self-help in a much broader range of circumstances, including those in which licensee conduct, although defined as breach, is privileged by the public law of copyright. To a far greater extent than existing law, Article 2B elevates the rights of mass market vendors over those of consumers and rights in "informational property" over the rights of persons to security and autonomy within private spaces.⁴⁴ Whether and to what extent this approach is warranted depends on how "intrusion" is conceived and on the purposes that self-help and the legal standards governing it are thought to serve.

Before digital technologies made remote or prospective self-help possible, self-help repossession necessarily entailed physical recovery of disputed goods following an alleged breach of contract. The law of self-help thus has been, until now, the law of physical, ex post repossession of chattels, which in turn has focused heavily on the likelihood of physical violence. Courts considering these cases have not explained, because they have not needed to, whether the judicially-developed "breach of the peace" standard is only designed to minimize the likelihood of physical violence and harm to persons and property, or is (or should be) more broadly concerned with preventing nonconsensual intrusion-and if so, what kinds of nonconsensual intrusion count. Because the universe of possible transgressions with respect to leased and secured chattels is relatively narrow, they also have not explored whether in other circumstances the law might or should impose substantive limits on the sorts of dereliction that justify self-help behavior. Finally, they have not considered whether standards developed to govern self-help following cancellation should apply to self-enforcing "regulation of performance" ex ante. Article 2B's proposed extension of self-help privileges to encompass electronic repossession and prospective self-help requires answers to all three sets of questions.

A. Self-Help and Private Spaces

The physical self-help tactics employed at the dawn of the consumer credit era created risks of physical violence and raised questions about debtors' rights to security against trespass and other intrusions. To minimize these concerns, courts developed rules that allowed self-help repossession only if it could be accomplished without a breach of the peace.⁴⁵ Although courts created exceptions to the law of trespass to accommodate a perceived need for self-help repossession of chattels kept on private property, they used the "breach of the peace" standard and the concept of noncoerced consent to cabin these exceptions. Thus, creditors could enter private property to recover chattels sitting in plain view in a yard or driveway, if the debtor offered no resistance.⁴⁶ They could not, however, break into a debtor's home or business premises, or use or threaten force to gain entry if permission to enter was refused.⁴⁷ Only the state could enter a private home or office against the owner's will, and then only within the limits established by due process principles.⁴⁸

The rules governing self-help repossession under Articles 9 and 2A of the U.C.C., which expressly incorporate the "breach of the peace" standard, mirror those developed under the common law.⁴⁹ Creditors may enter upon private property, but their ability to do so is severely restricted. "'The two primary factors considered in making th[e] determination are the potential for immediate violence and the nature of the premises intruded upon.'"⁵⁰ Although many contracts expressly authorize creditors to enter private premises to effectuate repossession, courts have read the breach of the peace limitation into these clauses, as well.⁵¹ In the eleven states that have adopted the Uniform Consumer Credit Code ("U3C") as a modification to Article 9, moreover, the creditor may not enter a dwelling "unless the consumer voluntarily surrenders possession of the collateral to the creditor."⁵² Courts in non-U3C jurisdictions have not specified what constitutes permissible entry, and why, in situations not involving overt force or threats of force.⁵³ Generally speaking, courts in non-trespassory repossession cases have allowed some forms of deceit and trickery and prohibited others, and have justified both kinds of results by reference to the relationship between force, consent, and the likelihood of harm.⁵⁴

How should the ancient "breach of the peace" standard and its associated concern with protecting private spaces be understood in connection with virtual, nonrepossessory self-help? Is the touchstone nonconsensual intrusion, or is the objection to nonconsensual intrusion simply that it threatens violence? Plainly, the nonviolent nature of electronic self-help-not to mention electronic "regulation" of performance-does not negate its invasiveness from the consumer's perspective. The widespread outrage that greeted rumors of a "registration wizard" in Microsoft's Windows software, which purportedly reported back to Microsoft via the Internet on the contents of users' hard drives, suggests that individuals also assess intrusion in other ways.⁵⁵ (Imagine, for example, that a team of high-tech repo men had just used a transporter device to "beam" your sofa out of your living room and back to the furniture store. It would be difficult for the creditor to convince you that no intrusion had occurred.) The law of privacy agrees that intrusion need not be violent to be actionable; nonconsensual "intrusion upon seclusion" is actionable without regard to the intruder's use of force.⁵⁶ Assessing the degree of intrusion allowable as a matter of commercial law, therefore, requires us to do more than simply weigh the risk of physical injury to persons or property against the licensor's countervailing proprietary rights.

The fact that section 2B-715 also prohibits self-help repossession in situations presenting a risk of injury to information, independent of any injury to persons or tangible property, indicates some recognition that physical harm is not the only kind of harm threatened by unilateral acts of private enforcement.⁵⁷ Article 2B makes clear, however, that the drafters are far more concerned with intangible harms to commercial interests than with intangible harms to individuals. Thus, section 2B-715 includes special protections for the licensee whose trade secrets become entangled with information "belonging to" the licensor, but includes no such protections for the licensee whose diary or great American novel meets a similar fate.⁵⁸ The Reporter's Notes to sections 2B-310 and 2B-715 do not even acknowledge that the law of privacy exists, or that "privacy" is a state or characteristic that has independent value for individuals and for society.

Determining whether and how privacy concerns should influence the law of electronic self-help requires defining the interests that "privacy" protects and the senses in which it is subject to invasion. Volumes have been written on this subject, and the exact provenance of privacy is still unsettled. For purposes of this article, however, it is sufficient to note that privacy is broadly acknowledged as having decisional, informational, and spatial dimensions.⁵⁹ Plainly, the self-help rights provided by Article 2B do not directly implicate privacy concerns related to intimate personal decision-making.⁶⁰ Self-help might entail collection and revelation of information about an individual licensee's activities. The privacy implications of such monitoring are clear, and are thoroughly treated elsewhere; I will not repeat that analysis here.⁶¹ My concern here is with the new kind of self-help that digital technologies allow-self-help that consists solely of "dumb," hard-wired prevention of unauthorized conduct. Although this kind of self-help does not appear to raise informational privacy concerns, that does not end the inquiry.⁶² Whether such self-help implicates privacy in the spatial sense remains to be considered.

The common law of privacy protects only those expectations of privacy that are "reasonable."⁶³ One possible understanding of "reasonableness" in the context of assertedly private spaces is that the state of the art of self-help technology determines (and limits) the expectations of privacy that consumers can reasonably have. This is not entirely far-fetched; technology plays an important role in shaping privacy-related rules and norms.⁶⁴ Yet if reasonable expectations are defined solely by the limits of technological possibility, privacy has a bleak future. Individuals' legal entitlement to privacy will simply recede as the technologies of intrusion advance. This approach also rests on an important, and misguided, assumption concerning the unidirectional nature of technological progress. Technology can evolve in privacy-destroying or privacy-protecting ways. The actual path of technological evolution will depend on many factors, including the priorities of stakeholders and the processes by which stakeholders are identified and consulted.⁶⁵ To say that electronic self-help is legitimate because it is possible ignores the degree to which both "privacy" and "technology" are normative as well as positive constructs-functions of the laws and mores of society as well as the laws of physics.

Another possible interpretation of "reasonableness," suggested by cases involving alleged intrusion upon seclusion via remote listening and viewing devices, is that an intrusion into private space is actionable only if it renders the space accessible, or potentially so, to a human observer.⁶⁶ This answer also is unsatisfactory, however, because it depends, ultimately, on informational privacy concerns. Privacy protects certain spaces not only to shield personal behaviors from observation by others, but also to preserve a zone of autonomy from interference by others.⁶⁷ Freedom from observation means little without freedom from outside control. Because autonomy interests may be violated even if informational interests are not, whether a human observer gleans any direct information from an autonomy-destroying intrusion is irrelevant. It is worth noting, too, that "dumb" intrusions are not divorced from human agency, but only separated from it in time. In a sense, the intrusion (or at least its but-for cause) occurred much earlier, when the licensor determined that consumers in their private homes and offices would be allowed to take certain actions but not others.⁶⁸

It is true that "dumb" self-help is a different kind of intrusion than that caused by human perception. Yet to characterize it as "merely" a communication surely would go too far. A dinnertime telemarketing phone call may annoy, but a spurned telemarketer cannot turn off software that happens to be running on a personal computer in one's study, or deny access to copies of digital works stored there. Electronic self-help is a communication that suspends or restricts preexisting access to stored digital information; as such, it is qualitatively different than an unwanted telephone call that has no further effect.⁶⁹

Telephone, electric, and gas companies supply a somewhat closer parallel. These entities have the undisputed power to disconnect service to private homes and offices. However, they do not have the power to reach inside the home or office and disable lawfully acquired products, such as lamps, stoves, and telephones, merely because they require electricity, gas, or telephone wire to function. In addition, public utilities' power to exercise self-help is limited in other ways. The telephone company may not disconnect a consumer for making fun of the company, nor for taking apart the telephone to try to build a better one; it may do so only for nonpayment, and only after providing notice and a grace period.⁷⁰ In contrast, section 2B-310 and (depending on judicial interpretation) possibly section 2B-715 authorize intrusion into private individuals' homes, offices and computer systems for a wide variety of misconduct, without prior notice, as a matter of routine business practice. Thus, to decide whether the intrusions-by-communication authorized by Article 2B are reasonable based on a public utility analogy, we also must consider whether their subject matter justifies their scope.

B. Self-Help, Notice and "Materiality"

Self-help historically has been understood, and rightly so, as a drastic remedy. For this reason, existing commercial law requires that the range of conduct that will trigger self-help behavior be clearly defined. For leases, the language of Article 2A sets these initial limits. A lessor of tangible property may engage in self-help only if the lessee "wrongfully rejects or revokes acceptance of goods or fails to make a payment when due or repudiates" all or part of the contract, or otherwise "substantially impairs" its value.⁷¹ The language of Article 9, in contrast, is relatively open-ended; it allows self-help repossession by the holder of a security interest upon the debtor's "default."⁷² Because Article 9 does not define "default," courts have required that the events alleged as default be defined as such in the security agreement.⁷³ Moreover, courts in a number of states have cabined contractual events of default by imposing objective limits on "catchall" belief-in-insecurity clauses;⁷⁴ by restricting the use of insecurity-acceleration clauses and requiring clear notice of acceleration in all relevant documents;⁷⁵ by limiting the use of demand clauses if the contract also contains enumerated events of default;⁷⁶ and by applying principles of estoppel to bar repossession or acceleration by creditors in some circumstances notwithstanding the contract language.⁷⁷ In U3C jurisdictions, these restrictions are codified; a creditor may not accelerate the debt, but instead must afford both notice and an opportunity to cure the deficient installment(s), and may proceed with self-help repossession only upon objective evidence of "significant impairment of the prospect for payment or realization on the collateral."⁷⁸ These restrictions are designed to mitigate the severity of the self-help remedy by ensuring that self-help will not follow minor or debatable infractions, and by alerting consumers to the kinds of conduct that create risk.

Measured against existing law and practice, the self-help provisions of proposed Article 2B require much less advance notice, and authorize self-help in an even broader range of circumstances. Section 2B-310, in particular, allows electronic regulation of any behavior considered inconsistent with the contract, without contractual notice in many cases.⁷⁹ In contrast, although the Article 2B drafting committee had previously approved post-cancellation self-help provisions without any materiality restriction, the new version of section 2B-715 requires either that the breach be "material" or that the license expressly define it as grounds to cancel.⁸⁰ Even these restrictions, however, do very little to bring Article 2B in line with the existing law of self-help repossession.

First, as described above, existing law requires written notice of the possibility of electronic self-help in all cases, not just some. This is true for electronic self-help as well. Every court that has considered a challenge to electronic self-help repossession of licensed software has indicated that in view of its drastic nature, electronic self-help requires prior contractual authorization.⁸¹ The Reporter's Notes to sections 2B-310 and 2B-715 do not mention these decisions at all.⁸² The omission is hard to fathom. Given the severity of the consequences and the inability of most consumers to evade them, lack of written notice of the possibility of electronic self-help is simply unfair. (If a creditor considered itself entitled to "beam" your sofa out of your living room, or to prevent you from installing new cushion covers, you almost certainly would prefer to know this up front.) It is worth noting, too, that none of the cases concerning electronic self-help has involved a non-negotiated, mass market contract; thus, no court was required to consider whether the "notice" afforded consumers by standard-form provisions is enough to validate electronic self-help. It is at least an open question whether the severity of the remedy justifies heightened notice requirements.⁸³

Second, even apart from the issue of notice, the self-help rights afforded by Article 2B are extremely broad. In part, this is the result of specific drafting decisions; even section 2B-715's materiality restriction is virtually meaningless because Article 2B's definition of "material" breach is so broad that it encompasses almost any breach.⁸⁴ In part, however, it is a consequence of the open-ended nature of "informational rights" as conceived by licensors and the Article 2B drafting committee. Both Article 2A and Article 9 inherently concern a narrower range of potential transgressions than Article 2B. The typical Article 2A lease or Article 9 security agreement is concerned only with behaviors that bear on the debtor's financial soundness or on the availability of the collateral to satisfy the debt.⁸⁵ In practice, a default most often will consist of failure to make required payments. Article 2B, in contrast, contemplates a seemingly limitless range of restrictions on the uses that licensors may make of creative and informational works, and appears to contemplate electronic enforcement of most such restrictions-which, in turn, exacerbates the notice problem still further. An expansive conception of breach need not, however, automatically translate into an expanded scope for self-help. At minimum, before adopting this robust conception of private ordering, we should weigh its merits and demerits and consider other possible approaches.

Affording licensors such broad powers of self-help is enormously problematic, for several reasons. First, the determination of breach (or, as in section 2B-310, behavior "inconsistent with" the license) is not always as clear-cut as sections 2B-310 and 2B-715 imply. Deciding whether a consumer has failed to pay is relatively easy; for other license provisions, however, the determination of breach may require resolution of difficult questions of fact or law.⁸⁶ Appointing the licensor judge, jury, and executioner on these questions seems singularly unwise. Second, the alleged inconsistency or breach may consist of conduct that copyright law permits. A licensee might trigger digital policing mechanisms while trying to fix bugs in licensed software, or using the licensed information to create a classroom handout or critical commentary.⁸⁷ In such a case, the licensee has a defense-copyright preemption-that is unavailable to the person who simply has failed to pay for goods received, and the outcome may turn-as the drafters themselves note-on the resolution of difficult questions of federal law.⁸⁸

One obvious solution to the overbreadth problems in sections 2B-310 and 2B-715 is to authorize self-help only for the same kinds of misconduct that have traditionally warranted it: failure to pay and other conduct that substantially impairs the value of the covered property based on an objective standard.⁸⁹ In the case of section 2B-715, courts could simply interpret "materiality" this way. Neither approach appears to have occurred to the drafters, for reasons that also are self-evident: such restrictions would diminish Article 2B's utility as a vehicle for private ordering of rights in information. Yet at the same time, the drafters' decision to impose some sort of materiality restriction, however vague, on self-help under section 2B-715 suggests a recognition, however murky, that wholly unrestrained private ordering might be bad policy. A narrow understanding of "materiality" makes the most sense, both in terms of fairness to consumers and in terms of broader societal concerns about the rule of law. Section 2B-310, however, contains no express materiality restriction, and as we have seen, there are other significant differences between the self-help powers conferred by section 2B-310 and those conferred by 2B-715. Thus, to finish the project undertaken in this Part, we must consider the drafters' implicit assumption that "regulation of performance" ex ante is fundamentally different than "self-help" ex post.

C. Self-Help in Time

Sections 2B-715 and 2B-310 diverge markedly with regard to materiality and notice; this suggests that the drafters see an important difference between the two types of self-help. This difference follows fairly straightforwardly from the libertarian notion of freedom of contract. From this perspective, it is conceivable that wholly unfettered rights of "repossession," or post-breach self-help, might unacceptably blur the line between the rule of law and the state of nature. A central purpose of the social contract, after all, is to eliminate the chaos and uncertainty that would arise in a society without formal systems of dispute resolution. Electronic regulation, however (or so the argument goes), invokes the law of the market, not the law of the jungle. "Regulation of performance" is simply a high-tech way of describing the licensor's right to determine the features of its product. The restrictions become part of the product, which consumers can take or leave.⁹⁰

The freedom of contract argument for unfettered electronic regulation of performance is simple and elegant-and breathtakingly sophomoric. First, it conflates choice with submission and product capabilities with control of behavior. Your vacuum cleaner cannot fly, or clean your oven, and you have no particular right to one that can. However, except in special cases governed by the patent laws, within private spaces you may use or modify a lawfully-acquired vacuum cleaner in any way you see fit. There might be questions about liability for injuries arising from unintended uses, but that is a separate matter well within the scope of existing contract and tort law concerning warranties, warnings, and disclaimers. Second, the freedom-of-contract argument conflates digital code with "contract," and calls the result a purely private form of ordering exempt from public policy limits-although "contract" is not and never has been exempt from such limits.⁹¹ Section 2B-310 sanctions the control of people, not products; it negates agency, and calls the result freedom.

Theory aside, consider (again) your living room sofa. Suppose, first, that the purchase agreement states that no more than three people may sit on the sofa at a time. When a fourth person (say, perhaps, the small child of an adult sofa-sitter) attempts to join the others, the sofa vanishes, dumping its erstwhile occupants onto the floor. This is repossession, swift and (largely) bloodless.⁹² Now suppose, instead, that the child's approach activates an invisible force field, such that the child may not sit while all three adults remain. There is no repossession (the sofa remains) and no loss of "use" (as defined by the licensor), but only regulation of use. There is little risk of physical injury, and little need for invasion of privacy in the informational sense. Yet I suspect most readers will feel that from the standpoint of personal autonomy within a space hitherto conceived as private, there is not much difference between the two scenarios.⁹³ Article 2B stands for the proposition that intellectual property is different enough from sofas that licensors can, with straight faces, propound and demand acceptance of precisely the latter sort of regime.⁹⁴

Is there any consideration that might justify broader rights of private ordering and self-help repossession, and a correspondingly restricted sense of individual autonomy, as to information products than as to tangible articles of commerce? The answer, according to the drafters of Article 2B, seems to be that unauthorized use is reconceived as an invasion of the information provider's "property" interests in the work, as distinct from the particular copy the licensee happens to possess.⁹⁵ It is true that intellectual property and sofas are not entirely the same-sofas are not public goods, and cannot be costlessly copied-but the need to prevent market-destroying appropriation is a very different sort of argument, and it is far from clear that it justifies the full range of autonomy-destroying practices that section 2B-310 would allow.⁹⁶ Moreover, the fact that the licensor may have "informational rights" in the licensed subject matter also cuts the other way, because "informational rights" are limited by law in ways that rights in chattels are not. A copyrighted work is not "property" in the same sense as land or consumer goods, because the public has protectable interests in certain public-domain aspects of copyrighted works at the outset.⁹⁷

Even the common law of property historically has recognized certain public rights of access to or across the property of another.⁹⁸ Most closely analogous is the public trust doctrine, which preserves a right of access across privately-owned land when necessary to reach beaches and other areas that the law considers to be commonly-owned.⁹⁹ Similarly, the exceptions and exclusions in copyright law preserve public access to the linguistic, cultural, and scientific commons. The common law of property also recognizes public rights of privacy while on the property of another; for example, landlords may not use listening devices or trick mirrors to spy on their tenants, or install viewing devices in public restroom stalls.¹⁰⁰ In short, the fact that something is "property" does not, without more, confer on its owner rights of absolute, unqualified control.¹⁰¹ The scope of permissible private ordering of others' behavior within private spaces should be a subject of conversation for society generally, not a unilateral decision for information providers.