Document Type


Publication Title

Houston Law Review



Publication Date



internet, intellectual property, rulemaking


This article argues that the technological attacks on intellectual property are a movement against democratically chosen intellectual property rules. They form a basic challenge to the rule of law and to the control of the rules wired into the network. In making this argument, the Article first maintains that intellectual property rights have an important public function in democracy in that they mark political, economic, and social boundaries. Next, the Article shows that the public law, as enacted by governments, has reallocated intellectual property rights to adapt to the information economy. While many aspects of this new allocation of rights have been controversial, these decisions nevertheless emanate from public authorities. The Article then analyzes the rejection of those rules by technologists and their fight to take control of rulemaking. In essence, the technical community seeks to replace the state's decision on public intellectual property law with the community's own private preferences in subversion of democratic choices. The Article concludes with several predictions and prescriptions.