Nobody Knows You Are a Dog

Nimmer states that “machinery does not distinguish between a professor and a pilferer”.[1]However, Lessig says Cryptography can be both good and bad, because encryption can serve different ends. It enables freedom from regulation, as it enhances confidentiality, and it can also enable regulation as it enhances identification. Encrypt a message, and only those with the proper key can open and read it.[2] This can leave a bad taste in the mouths of some cyber-libertarians, and why should regulation be necessary at all? “How the code regulates, who the code writers are, and who controls the code writers – these are the questions that any practice of justice must focus in the age of cyberspace”.[3]

The use of contract law as an aid to copyright law in the digital world can erode the very foundations of intellectual property, that is, to reward authors for their creations and further stimulate creative activity in others for the public benefit. When George Washington asked the United States Congress to enact copyright legislation in 1790, he argued that such legislation would increase the national stock of knowledge, and observed that knowledge is  “the surest basis of public happiness”.[4]  It is important to preserve the public domain. We must be able to stand on the shoulders of giants and have a space to create.

Lessig calls encryption technologies or TPM’s the most important technological breakthrough in the last one thousand years.[5] As fast as encryption tries to achieve regulation, technology changes and beats the protection that encryption may offer.[6] What is needed is a balance.

There are some commentators who believe the law, which is currently practiced, cannot resolve the problem that the technology creates.[7] This current practice is to attempt to resolve the dispute through legislation and the courts. These attempts hope to define and re-define intellectual property rights in cyberspace.[8]

John Perry Barlow says that intellectual property law cannot be patched, retrofitted, or expanded to contain the gasses of digitised expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum.[9]

Where to now? Licensing, of course.

[1] Nimmer, M. and Nimmer, D. Nimmer of copyright (looseleaf, Bender, New York), s12A.03[C]

[2] Ibid p. 36

[3] Ibid

[4] Mann, Charles C. “Who will own your next good idea?” (1998) accessed Friday 1 November 2002. p. 3

[5] Lessig, Lawrence. Code and the laws of cyberspace. New York: Basic Books, 1999. p.35

[6] Bowrey, Kathy. LAWS3039 Law and internet cultures. Seminar 13, State Library of NSW, Tuesday 29 October 2002

[7] Bowrey, Kathy. Intellectual property, peer to peer and resistance to regulation. Cyberspace Law and Policy Series: cyberspace regulation: e-commerce and content. Centre for Continuing Legal Education and Baker & McKenzie Cyberspace Law and Policy Centre. Grace Hotel, 24-25 May 2001. p.2 and

Barlow, John Perry. Selling wine without bottles: the economy of mind on the global net. accessed Thursday 19 September 2002. p. 1

[8] Ibid

[9] Barlow, op cit p. 2

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