Private Ordering in Copyright Law: The Impact on Fair Use Activities on the Internet

Abstract

Private ordering tools such as contracts have always been used in the context of copyright law in order to monetize the rights of the copyright holders. However, the use of networked information technologies like the Internet has brought in a deeper layer of engagement. The higher configurability of such technologies, affords points of regulatory leverage to private parties, allowing them to exercise more pervasive control. Prior to the digital era, it was not practical for (say) a publisher to track down every buyer and bargain with them. In contrast, the cyberspace facilitates such a regime to a much greater degree, since it allows copyright holders easier access to the end-users of their products, thus making the conclusion of a bargain much more feasible. Furthermore, the technology also allows the rights holders to deploy technological protection measures built into the medium of the information (e.g., the e-book), restricting certain actions via code. While this provides the rights holders with an assurance of the protection of their rights, it runs the danger of trespassing on liberties users would generally enjoy under the copyright law framework. The objective of this study is to consider the rising influence of private ordering mechanisms such as contracts and technological protection measures in the copyright framework and the impact it has on the rights and privileges provided by the public ordering framework of copyright. The methodology undertaken for this study is doctrinal in nature.