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18 Cardozo Arts & Ent. L.J. 337 (2000)
Software as Discourse: The Power of Intellectual Property in Digital Architecture

handle is hein.journals/caelj18 and id is 345 raw text is: SEVENTH ANNUAL TENZER LECTURE 1999* SOFTWARE AS DISCOURSE: THE POWER OF INTELLECTUAL PROPERTY IN DIGITAL ARCHITECTURE BRIAN F. FITZGERALD** ABSTRACT As software increasingly facilitates our living, we are drawn more and more to conceptualize software as discourse. While this may sound trite, it is a fundamental point to appreciate. One of the most significant intellectual developments of the latter part of the twentieth century has been the poststruc- turalist writing of thinkers like Foucault, Derrida, and Baudril- lard, who explain the multitude of power relationships we experience in our daily lives, the indeterminacy of law, the con- struction of meaning, and the role of language, or discourse, in the construction of meaning and identity. According to the post-structuralists, we live in an environment constructed from many elements-one of the dominant ones being language, or discourse, which contains inherent biases and tendencies. This philosophy has given rise to the development of identity polit- ics-a space in which arguments are made for and against the construction of identity through language and other circum- * Publisher's Note This Article is adapted from the Seventh Annual Herbert Tenzer Distinguished Lecture in Intellectual Property Law, given at the Benjamin N. Cardozo School of Law, October 14, 1999. The Cardozo Arts & Entertainment Law Journal is proud to publish this Article and thanks the author for his patience and generous assistance during the editorial process. The Journal has verified most of the sources cited in the Article; however, some sources were unavailable, obtainable only in foreign countries, or written in foreign languages. The author stands by the accuracy of the information presented herein. ** BA (GU), LLB (Hons.) (QUT), BCL (Oxon.), LLM (Harv.), Dean of the School of Law, Southern Cross University, Australia: bfitzger@scu.edu.au. My sincere appreciation and heartfelt thanks to Marci Hamilton and Editors Willard Knox, Rebecca Morris, Jessica Stern, and Mark Kravitz from the Cardozo Arts & Entertainment Law Journal for inviting me to give this paper as the Seventh Annual Tenzer Lecture, and to those attending earlier and later presentations of this paper: in October of 1999, at Hamline University Law School, St. Paul, Minnesota; Berkman Centre for Internet and Society, Harvard University Law School; Baker McKenzie Law Offices, Chicago; Norwegian Centre for Computers and Law, Law School, University of Oslo; Institute for Information Law, University of Amster- dam; in particular thanks to David Post, Jonathan Zittrain, Fern Nesson, John Willbanks, Alexander Macgillivray, Ken Salzberg, Joseph Daly, Dennis Ahlburg, Tom Smedinghoff, Sam Kramer, Brian Arbetter, Olav Torvund, Peter Lodrup, Bernt Hugenholtz, and Lode- wijk Asscher; and to those attending a presentation of this paper at the Australian Law and Society Conference in Byron Bay on December 7, 1999, in particular thanks to Anne Fitz- gerald, Larry Lessig, and Scott Beattie. 337

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