© 1999 Kalama Lui-Kwan and Kurt Opsahl.

Symposium Editor, Berkeley Technology Law Journal; B.A., International Relations and China Studies, Boston University, 1995; J.D. candidate 2000, Boalt Hall School of Law, University of California, Berkeley; M.P.P. candidate 2000, John F. Kennedy School of Government, Harvard University.

Research Fellow; J.D. 1997, Boalt Hall School of Law, University of California, Berkeley.

The Conference was jointly organized by the Berkeley Center for Law & Technology and the Berkeley Technology Law Journal, and took place at the University of California at Berkeley on March 5-6, 1999. The authors wish to give special thanks to Professor Pamela Samuelson for her leading role in coordinating the event and for her support in developing this Symposium issue. The authors also wish to thank those who helped to organize the Conference, especially Larry Trask and John Sasson of the Berkeley Center for Law & Technology, Greg Papciak of the Berkeley Technology Law Journal, Pat Murphy of the Institute for Management, Innovation, and Organization, and Mark Lemley of the University of Texas at Austin. The authors are also grateful for the support of John Cioffi, for his excellent summary of the papers presented at the conference; Rachna Dhamija and David Chott for their work on a summary of the background issues; the Conference speakers, who contributed their insight and time to assure the high quality of the content of the Conference and this Symposium issue; the Conference volunteers, for helping to make the two-day event run without any logistical problems; and the editors of the Berkeley Technology Law Journal for the substantial support and time they have committed toward the success of this Symposium issue.

1. See WILLIAM J. CLINTON & ALBERT GORE, JR., A FRAMEWORK FOR GLOBAL ELECTRONIC COMMERCE (1997), available at <http://www.ecommerce.gov/framewrk.htm> [hereinafter FRAMEWORK]. The first two initiatives were Ronald H. Brown, Secretary of Commerce, NATIONAL INFORMATION INFRASTRUCTURE: AN AGENDA FOR ACTION (Dec. 1993), available at <http://metalab.unc.edu/nii/NII-Table-of-Contents.html>, and Bruce Lehman, Patent and Trademark Office, REPORT OF WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS OF INFORMATION INFRASTRUCTURE TASK FORCE, INTELLECTUAL PROPERTY RIGHTS AND THE NATIONAL INFORMATION INFRASTRUCTURE (Sept. 1995), available at <http://www.uspto.gov/web/offices/com/doc/ipnii/> [hereinafter White Paper].

2. The Framework is often referred to as the Magaziner Report, after Ira Magaziner, former Senior Adviser to the President for Policy Development, who was principally responsible for its creation. Magaziner has since resigned, and been replaced by Elliot Maxwell. See Jeri Clausing, Magaziner, Head of U.S. Internet Policy, Plans to Resign, N.Y. TIMES ON THE WEB (Nov. 6, 1998) <http://www.nytimes.com/library/tech/98/11/cyber/articles/07magaziner.html>; Jeri Clausing, Commerce Dept.'s New Point Man on the Net, N.Y. TIMES ON THE WEB (Dec. 11, 1998) <http://www.nytimes.com/library/tech/98/12/cyber/articles/11maxwell.html>.

3. The Framework was recently updated with the U.S. GOVERNMENT WORKING GROUP ON ELECTRONIC COMMERCE, FIRST ANNUAL REPORT (Nov. 1998), available at <http://www.doc.gov/ecommerce/review.htm> [hereinafter FIRST ANNUAL REPORT].

4. Id. at 10.

5. See FRAMEWORK, supra note 1, at 2-3.

6. See id. at 4-21.

7. See WILLIAM J. CLINTON, MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES, (July 1, 1997), available at <http://www.ecommerce.gov/presiden.htm> [hereinafter Presidential Directive on Electronic Commerce].

8. The U.S. Trade Representative is directed to ensure Internet commerce remains tariff-free, the Secretary of Commerce is directed to secure international intellectual property protections, and the Secretary of the Treasury is directed to discourage any new taxes from discriminating against Internet commerce. Other directives aim to protect privacy, ensure security, and promote electronic payment systems, including the creation of an online shopping system for the federal community. See id. See also Sandra Sobieraj, Clinton Issues 'Hands Off' Policy on Internet Commerce, N.Y. TIMES ON THE WEB (July 2, 1997) <http://www.nytimes.com/library/cyber/week/070297commerce.html>.

9. FRAMEWORK, supra note 1, at 2.

10. For a survey of responses to the Framework, see Sobieraj, supra note , and Jeri Clausing, Critics Question U.S. Policy on Electronic Commerce, NY TIMES ON THE WEB (June 15, 1998) <http://www.nytimes.com/library/tech/98/11/biztech/articles/30net.html>. The primary incentive to self-regulate is the 'threat' of government regulation. See, e.g., FRAMEWORK, supra note 1, at 14 ("[I]f effective privacy protection cannot be provided [by self-regulation], we will reevaluate this policy.").

11. See Jeri Clausing, Internet Commerce Study Stresses Self-Regulation, N.Y. TIMES ON THE WEB (Nov. 30, 1998) <http://www.nytimes.com/library/tech/98/11/biztech/articles/30net.html>.

12. The full title of the Conference was The Legal and Policy Framework for Global Electronic Commerce: A Progress Report. For an overview of the Conference, see Berkeley Center for Law & Technology, Electronic Commerce Conference (visited Apr. 10, 1999) <http://www.sims.berkeley.edu/bclt/ecom/>. The authors would like to recognize the generous support of the following Conference sponsors: The School of Information Management and Systems, UC Berkeley; The Haas School of Business, UC Berkeley; BRIE (Berkeley Roundtable on the International Economy), UC Berkeley; Institute for Management, Innovation, and Organization, UC Berkeley; The IBM Institute for Advanced Commerce; The Fisher Center for Management & Information Technology; Cisco Systems, Inc.; The American Bar Association, Science & Technology Section.

13. FRAMEWORK, supra note 1, at 3.

14. See FIRST ANNUAL REPORT, supra note 3, at 10-13.

15. Pub. L. No. 105-304, 112 Stat. 2860 (1998).

16. See Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised, 14 BERKELEY TECH. L.J. * (1999).

17. Id. at *.

18. See Mark A. Haynes, Commentary: Black Holes of Innovation in the Software Arts, 14 BERKELEY TECH. L.J. * (1999).

19. Id. at *.

20. See id. at *.

21. See id.

22. 17 U.S.C. 901-914 (1984).

23. See Haynes, supra note 18, at *.

24. Robert P. Merges, As Many as Six Impossible Patents Before Breakfast: Property Rights for Business Concepts, 14 BERKELEY TECH. L.J. * (1999).

25. Until the recent State Street decision, patents on business concepts and other abstractions were simply not permitted. Merges explores the importance of business concept patents and, more specifically, whether they contribute any value in excess of their cost to society. See, e.g., Gottschalk v. Benson, 409 U.S. 63 (1972); State St. Bank & Trust Co., Inc. v. Signature Fin. Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998).

26. See Merges, supra note 24, at *.

27. See id. at *.

28. See id. at *.

29. Id. at *.

30. See id. at *.

31. See id. at *.

32. See id.

33. A. Michael Froomkin, Of Governments and Governance, 14 BERKELEY TECH. L.J. *, at * (1999).

34. Id. at *.

35. Froomkin sits on a Panel of Experts charged with assisting WIPO on its contribution to the Internet Domain Name Process, and has written extensively on the proposal.

36. For more information on the WIPO Internet Domain Name Process, see World Intellectual Property Organization, Internet Domain Name Process (visited Apr. 7, 1999) <http://wipo2.wipo.int/>.

37. See Froomkin, supra note 33, at *.

38. See Maureen A. O'Rourke, Progressing Towards a Uniform Commercial Code for Electronic Commerce or Racing Towards Nonuniformity?, 14 BERKELEY TECH. L.J. * (1999).

39. Id. at *.

40. See U.C.C. Article 2B (Feb. 1, 1999 Draft). Since that draft, the National Conference of Commissioners on Uniform State Laws ("NCCUSL") and the American Law Institute ("ALI") have decided to table U.C.C. Article 2B, and promulgate the legal rules for computer information transactions for adoption by states as the Uniform Computer Information Transactions Act. See ALI-NCCUSL joint press release, NCCUSL to Promulgate Freestanding Uniform Computer Information Transactions Act-ALI and NCCUSL Announce that Legal Rules for Computer Information Will Not Be Part of UCC (Apr. 7, 1999) <http://www.2BGuide.com/docs/040799pr.html>.

41. See, e.g., articles published in a dual symposium of the California Law Review and the Berkeley Technology Law Journal in January 1999 and December 1998 respectively.

42. O'Rourke, supra note 38, at *.

43. Kerry Lynn Macintosh, The New Money, 14 BERKELEY TECH. L.J. * (1999).

44. Id. at *.

45. See id.

46. See id. at *.

47. Id. at * (citing FRAMEWORK, supra note 1, 2).

48. Jane Kaufman Winn, Clash of the Titans: Regulating the Competition Between Established and Emerging Electronic Payment Systems, 14 BERKELEY TECH. L.J. * (1999).

49. See id. at *.

50. See id. at *-*.

51. See id. at *.

52. See id. at *.

53. See id. at *.

54. David Forst, Old and New Issues in the Taxation of Electronic Commerce, 14 BERKELEY TECH. L.J. * (1999).

55. Id. at *.

56. See id. at *.

57. See id.

58. See id. at *.

59. Id at *.

60. Id. at *.

61. See Howard Shelanski, The Speed Gap: Broadband Infrastructure and Electronic Commerce, 14 BERKELEY TECH. L.J. * (1999).

62. See id. at *.

63. Id. at *.

64. See id. at *.

65. See Mark Lemley, Standardizing Government Standard-Setting Policy for Electronic Commerce, 14 BERKELEY TECH. L.J. * (1999).

66. See id. at *.

67. Id. at * (quoting FRAMEWORK, supra note 1, 6).

68. Id. at *.

69. Id. at *.

70. For more information on the IETF, see Internet Engineering Task Force, IETF Overview (visited Apr. 8, 1999) <http://www.ietf.org/overview.html>.

71. See Lemley, supra note 65, at *-51.

72. Id. at *.

73. See id. at *.

74. See Lawrence Lessig, The Limits in Open Code: Regulatory Standards and the Future of the Net, 14 BERKELEY TECH. L.J. * (1999).

75. See id. at *.

76. See id. at *.

77. See id. at *.

78. See Lessig, supra note 74, at *.

79. See Joel R. Reidenberg, Restoring Americans' Privacy in Electronic Commerce, 14 BERKELEY TECH. L.J. * (1999).

80. See id. at *-*.

81. See id. at *.

82. Id. at 4; see also Acxiom Direct Media, Mailing Lists and More! (visited Apr. 8, 1999) <http://www.directmedia.com/>.

83. Id. at *.

84. See id. at *.

85. See id. at *.

86. Id. at *.

87. Id. at *.

88. See id.

89. See, e.g., FRAMEWORK, supra note 1, at 2.

90. Samuelson, supra note 16, at *.

91. See id. at *.

92. See id. at *.

93. FRAMEWORK, supra note 1, at 3.

94. See William Landes & Richard Posner, An Economic Analysis of Copyright Law, 28 J. OF LEGAL STUD. 325, 326 (1989); Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 TEX. L. REV. 989, 997-98 & n.32 (1997).