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1997 Wis. L. Rev. 865 (1997)
Copyright and Its Substitutes

handle is hein.journals/wlr1997 and id is 881 raw text is: ADDRESS COPYRIGHT AND ITS SUBSTITUTES PAUL GOLDSTEIN* The Kastenmeier Lecture Present directions in the distribution of literary and artistic works over digital networks promise to alter the role of copyright in the common law world, and author's right in the civil law world. There is little doubt that electronic contracts and digital encryption will soon join copyright and author's right as institutional bridges between authors and their audiences. Readers, listeners, and viewers will use their computers not only to select a new or favorite book, record, or film from a vast digital storehouse, but also to contract electronically with the work's owner over the terms of use. Digital encryption will prevent those who have not bought a disencryption key from taking works out of the digital storehouse. The single most important question that electronic contracts and digital encryption raise for lawmakers is whether these new mechanisms should be brought within copyright's ambit. Contracts and encryption today exist entirely outside of copyright; they are substitutes for, not supplements to, copyright. The fact that contract and encryption are autonomous systems, that each could function perfectly in a world that never knew a copyright or an author's right, implies that, without legal intervention, their treatment of literary and artistic production will be unconstrained even by copyright's most central precepts-a durationally limited term, the idea-expression distinction, the fair use defense. Electronic contracts and digital encryption present a challenge to societies accustomed to having the conditions of their culture mediated by copyright or author's right. Copyright and author's right have as their heartbeat that a culture advances on the shoulders of its antecedents, and most if not all doctrines of copyright and author's right aim to mediate between past rights and future rights. But none of these doctrines, nor the pulse that drives them, has an integral place in contracts or in encryption. * Lillick Professor of Law, Stanford University. An earlier version of this paper was presented as the 1997 Kastenmeier Lecture at the University of Wisconsin Law School, 25 September 1997.

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