Chapter 1 Answer guidance to end of chapter questions

The world of bits
  1. John Perry Barlow argues that the valuable content that the law always protected is being separated from the traditional carrier, where the law gave protection. This move from atoms to bits is affecting traditional property values, and undermines our traditional legal enforcement models.

    Write a reply to Barlow explaining why your think he is right or wrong.

To answer this question I would expect the student to discuss in order:

  1. The distinction between atomic and digital property.
  2. The traditional role of property law in protecting atomic property.
  3. The nature of intangible property in particular its nonrivalrousness.
  4. The traditional role of intellectual property law in protecting intangible property.
  5. Barlow’s argument from The Economy of Ideas that intellectual property rights attach to carrier media not content.
  6. To address whether they agree this thesis and to address what the law should do about it.
  1. If bits have no economic value should lawyers be part of the battle to give bits monetary value through the application of legal structures?

To answer this question I would expect the student to discuss in order:

  1. The key to answering this question is to establish whether or not it is true that bits have no monetary value.
  2. The thesis of the question is that as bits are simply 1 or 0 they are of no economic value.
  3. The alternate is to think of bits like atoms (see Negroponte). Individually without economic value but once “worked” into a product of value.
  4. Address the concept of nonrivalrousness and address Jefferson’s claim that intangibles such as ideas should not be subject to property.
  5. Reconceptualise the question by thinking of products of bits (digital music, video etc). We have for many years protected the fruits of the mind (patents and copyrights).
  6. Clearly bits can have value – why pay for iTunes content. As Barlow notes though there is no carrier for this content. This makes legal protection (and the role of lawyers) essential. 
  1. Discuss the challenge posed by technological convergence. Is this a challenge of policy, technology, or law? What role should lawyers play in the convergence debate?

To answer this question I would expect the student to discuss in order:

  1. The first requirement is that the student describes accurately technological (or digital platform) convergence. It should be distinguished from media convergence and as a starting point I would expect the student to discuss Sola Pool’s definition from The Technologies of Freedom.
  2. Challenges of convergent technologies: Copyright challenges, privacy challenges. Are these challenges of technology, society, culture or law?
  3. Discuss the role of lawyers against the backdrop of the discourse seen in the chapter. The Johnson & Post “Law without Borders” argument suggests convergence in particular may limit the role of lawyers.

Discuss the role of law in regulating what is effectively a technology issue. Students who have read chapter 4 may wish to bring into the analysis Lawrence Lessig’s thesis that law and technology (or architecture) make up two sides of a four-sided regulatory framework alongside norms and markets. According to this thesis technology and law are two different forms of governance or regulation and as such it is arguable that to seek to regulate a technological convergence through legal means is therefore flawed. 

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