Journal of Information, Law and Technology
Assessing the Justification for Rights Management Systems
Alan Cunningham
Herchel Smith Research Fellow, Queen Mary Intellectual Property
Research Institute, University of London
a.cunningham@qmul.ac.uk
This is a refereed article published on: 30 November 2004.
Citation: Cunningham, ' Assessing the Justification for Rights Management Systems’,
2004 (3) The Journal of Information, Law and Technology (JILT).<
http://www2.warwick.ac.uk/fac/soc/law2/elj/jilt/2004_3/cunningham/>
Abstract.
This paper utilises the work of Carl Menger in an attempt to (a) objectively understand and
define the information management practice that is commonly described by nomenclature
such as DRM, and, more importantly, (b) utilise the knowledge gained through such a process
in order to question the justification that appears to support the use of the practice. The moral
philosophy of David Hume is also utilised in aiding the suggestion that the practice is
unjustified.
Keywords: Digital Rights Management, Law, Economics, Moral Philosophy.
1. Introduction
A techno-legal practice has emerged in response to difficulties encountered by copyright
holders in effecting the distribution and sale of their works in the digital and distributed
communicative environment. The practice is a commingling of existing conceptual legal force
with actual technological protection. It thus allows the distribution and sale of digital
copyright works to be undertaken in accordance with both the legal rights of the right holder
and, more importantly, in accordance with (or, in spite of) the technological reality of the
digital
and
distributed
communicative
environment.
The purpose of this paper is to undertake a summary exploration and assessment of the
justificationary aspects of this practice. The ultimate objective of such is to illustrate that the
practice is potentially unjustified as a result of its application of legal doctrine as conceptual
bedrock. To achieve this, i suggest that the practice utilises and relies upon certain systems of
management (or, legal doctrine) which are typically used in order to address the economic
problems of disparity between the wants and needs of any given society, and the amount (or
availability) of goods able to satisfy such wants and needs. I further suggest that the
justificationary difficulty with such use of legal doctrine in this case is that it is in violation of
an important concept: that any such use can only be properly justified when it accommodates
the circumstances in which it is used. In the case of the aforementioned use of doctrine by this
practice, certain circumstances are not properly accommodated. I hope to conclude that the
circumstances are in fact explicitly ignored and that the practice is rather utilising law as a
self –justificationary concept in order to protect the vested interests of copyright holders.
2. Isolating the Objectives of the Practice
The first step in assessing the justification of the practice is a considered understanding of
what the practice is. In order to understand a practice one must determine the objectives of
that practice. Such a determination is very much an exercise in abstractions, because the
objectives are the very essence of a practice, the absolute core of the practice and, usually,
universal to any specific substantiation of the practice in actuality. The determination of the
objectives in this paper will follow this methodology of abstraction to core elements,
establishing what it considers to be the universal, or generic, objectives of the practice of
rights management. There are a number of resultant benefits in undertaking such a process.
First, creating such an objective understanding of the practice removes the need for
subsequent ponderous lists of technologies involved in the practice. Instead of pointing to
specific technical examples, one can refer to the most important element in an understanding
of any practice: what it wants to achieve. From a jurisprudential perspective this is far more
beneficial than any administrative list of technologies. Specific technologies change quickly,
but the fundamental purpose of any technology is mundanely static and therefore a much
more useful benchmark for subsequent understanding and criticism of any practice.
In addition to these general analytical benefits, there is a benefit specific to the topic of the
paper. In outlining the universal objectives of the practice, as discussed above, the paper will
be provided with an initial illumination of some of the economic principles that are
instrumental in later suggesting that the practice is unjust. This results because the
illumination of these economic principles is a central part of beginning to appreciate the core
objectives of the practice. Why? The practice is evidently a reaction to certain problems posed
by certain circumstances. These problems are economic problems. Economic theory therefore
allows one to understand the problem and understand the reaction to the problem (rights
management), which is the beginning of understanding the objectives of the practice. The
economic theory utilised for this purpose will also allow us to understand why the practice
might be unjustified.
2.1 Some Instrumental Economic Theory
The subject of this paper, the practice of rights management, is a response to certain
problematic circumstances for right holders. These circumstances are technological
circumstances. Specifically, the practice is required as a response to the economic effect of
changes in the technological circumstances of society. What is this economic effect? The
central economic effect is an erasure of an historic quantitative relationship between the
amount of informational goods available and the amount of need or want for informational
goods. This relationship was an implicit aspect of expressing information by historic
technologies of information use; new technologies have subverted it. An understanding of this
concept of the quantitative relationship between wants and needs is central in initially
determining the objectives of the practice, since the practice is a reaction to its erasure. Such
an understanding is also beneficial in appreciating the larger argument of this paper, because,
as shall be illustrated, the existence of a quantitative relationship is instrumental in any
properly justified use of legal doctrine as a system of economic management. Any removal of
it therefore creates difficulties for those who rely on such legal doctrine.
The economic theory utilised in this paper is certain specific aspects of the work of Austrian
economist Carl Menger that he outlined in his Grundsatze (Menger; 1994). I want to
concentrate on, ultimately, two aspects of this work. The first, and more important, is the
concept of the quantitative relationship as already mentioned, and the second is some smaller
aspects
of
his
general
theory
of
value.
First, the quantitative relationship. Menger isolated this concept while outlining his general
theory of the good, so it is useful to explain that in some detail first. Menger began, simply,
by suggesting that things, general actual or ideational objects, can be placed in a causal
connection with the satisfaction of needs, and that such things can be considered useful
things. Here, Menger is reflecting the ‘great principle’ that states that ‘all things are subject to
the law of cause and effect’ , for if one passes from a state of need to a state of satisfaction,
certain causes must exist to explain this change. As such, any thing that can explain any
change in the satisfaction of needs is the cause of this change, and a useful thing for society.
Useful things, however, can also be transformed. They can become goods. However, a useful
thing can only become a good if it satisfies certain criteria. First, a human need must exist for
the useful thing. Second, such properties must exist that allow the useful thing to be brought
into causal connection with the satisfaction of the need. Third, there must be knowledge of
this connection. Finally, there must be command of the thing sufficient to direct it to
satisfying the need. Useful things that satisfy these criteria become goods, those things that
have most potential for useful interaction with the needs of society, because society is aware
of their effect in satisfying needs (aware of the causal connection) and also has the power to
direct the useful things to this end. Goods, however, nonetheless exist in a precarious
situation. Admittedly, they can satisfy needs and admittedly, societies eternal concern is the
continuing satisfaction of its needs. However, the problem is that there is no surety
surrounding this historic situation.
Why not? There are two problems, both of which act to transform the mere ‘good’ into
something quite different. The first is the concept of time and future needs. For example, if
society only made attempts to maintain goods so that they could only satisfy their immediate
needs, that would be a very unsustainable and unsatisfactory situation1. As Menger has
written, ‘if we suppose the inhabitants of a country to be entirely without stocks of foodstuff
and clothing at the beginning of winter, there can be no doubt that the majority of them would
be unable to save themselves from destruction, even by the most desperate efforts directed to
the satisfaction of their needs’. As civilisation moves forward, the argument for providing for
the requirements of the future becomes more compelling and, also, more achievable. The
second problem is the ephemeral nature of goods, a result of their implicit tangibility. Their
tangibility ensures that goods are inherently scarce and inherently rival. These two factors
ensure that any relationship between the availability of a good and the requirement for that
good is thus a quantitative one, one that is constrained by the quantities involved, of both
time,
amount
and
physicality.
As a result of this essential relational characteristic, goods constrained by such factors
become economic goods, ones that require economising. For example, society, in attempting
to provide in advance for the satisfaction of its needs, must become clear about their
requirements and about the amount of goods available to meet the requirements. Furthermore,
determining the availability of goods requires assessing the level of scarcity of a good 2. Most
goods exist in a state where there availability is less than the need for them. This usual state of
affairs leads to the societal realisation that, as Menger suggests, ‘no part of the available
quantity, in any way practically signifigant, may lose its useful properties or be removed from
human control without causing some concrete human needs, previously provided for, to
remain unsatisfied, or without causing these needs now to be satisfied less completely than
before’. This realisation ensures that society is aware that if it wishes to satisfy its needs as
completely as possible, it must strive ‘to maintain at its disposal every unit of a good standing
in this quantitative relationship and to conserve its useful properties’. Furthermore, on
becoming aware of a quantitative relationship between goods and needs, society becomes
aware that, inevitably, part of societies needs will remain unsatisfied and, importantly, any
unsound employment of such goods will result in needs that would, otherwise, have been
satisfied remaining unsatisfied. These factors ensure that goods that exist in a quantitative
relationship
with
needs
must
be
economised,
or
managed.
As a result of this fact a system of management is required concerning such goods, in order to
ensure distributive justice. What is this system of management? Menger suggests that the
system of management will be a system of exclusive ownership of goods and property rules
that determine the terms and limits of such ownership. This system emerges because of the
certainty that the needs of some of society will remain unsatisfied, due to the quantitative
relationship. Given such certainty, ‘human self-interest’ ensures that if the amount of goods is
not sufficient to satisfy needs, an individual will ‘attempt to ensure his own requirements as
completely as possible to the exclusion of others’. In so attempting to ensure requirements
are, such individuals will succeed and others will not; ‘the requirements of some members of
the society will not be met at all, or will be met only incompletely’. As such, the have-nots
become opposed to those who have-some. This ‘opposition of interest’ ensures the necessity
of protecting individuals who possess goods subject to quantitative relationships from
removal by force. For Menger, this explains the use of exclusive ownership and the property
rules
that
regulate
such
ownership.
The fundamental point which I want to highlight from this economic discourse, however, the
lesson to be learned, is that the main reason why goods become economic goods, and thus
subsequently require the application of these systems of management is because they exist in
a quantitative relationship between their existence and the want or need for them. In this
respect, the notion of the quantitative relationship is vitally important in justifying the
application of law, as a system of economic management in light of scarce resources, to these
economic problems. Before utilising these facts in the development of the objectives of the
practice, we must now turn our eyes to the concept of the quantitative relationship in the
context of information goods. As information goods are the good managed by the practice,
this is both instrumental in understanding the objectives and in later assessing justifications.
2.2. Informational Goods, Quantitative Relationships and Technologies of Information
Use
When discussing physical goods, which easily combine their implicit tangibility with the
problems of time management, the line of reasoning that concluded the following section
does not run into any complications. This is because physical goods exist in a constant
quantitative relationship with everything, whatever the amount of desire or good. Because
they exist in discernable quantities per se, they will always exist in quantitative relationships.
As such, justifying the application of exclusive ownership and property rules to such goods is
not problematic. Physical goods continually and inherently require such an application.
However, what about informational goods? First, information can constitute much of the
other categories established by Menger. One can quite reasonable suggest that information is
a thing. It is also certainly a useful thing. Finally, it can also satisfy the requirements for
consideration as a good. However, the important question is whether it can be properly
identified as an economic good or non-economic good, and therefore either justify the
application of a system of management or not justify such application3. As illustrated by our
previous discussion, the economic or non-economic nature of a good is determined by its
ability to enter into a quantitative relationship. At first blush, and on consideration of the
natural economic characteristics of information, one might tend towards supporting the
argument that would suggest that informational goods are inherently non-economic and thus
cannot support the application of a system of management. For example, information, once
created, is naturally non-scarce, non-rival and, although not naturally non-excludable,
certainly less prone to exclusion by virtue of its non-physicality. The fact that information is
non-scarce and non-rival would initially suggest that information goods cannot exist in a
quantitative relationship with the desire for information, and thus cannot justify the
application of law as a system of management to establish distributive justice.
However, there is one major stumbling block in this line of reasoning. Simply put, in order for
information to be useful, it is required that it be used. Specifically, technologies of
information use are required in order that information benefits society. The phrase
‘technology of information use’ is a catch-all covering the use, storage, distribution and
promulgation of information. The requirement of having technologies of information use
affects the economic character of informational goods. They add certain economic
characteristics to information goods, such characteristics becoming inextricably linked to the
good due the importance the technology of information use has in making the information at
all useful. Such added economic characteristics can act, in the face of the natural economic
characteristics of information goods, to justify the manner in which the information good is
managed (thus justifying the application of systems of management). As an example of this
effect, consider the abstract informational good of the 1400’s. The technologies of
information use in existence at that time, constituting the best technology available, were ink,
paper, and the variety of writing implements and, arguably, language. Such technologies
certainly made information more useful, but they also added certain economic characteristics
associated with their tangibility to the intangible information good. Because the usefulness of
the intangible good is determined by the technology of information use, the additional
economic characteristics become part of the informational good. In this respect, the
technologies of information use of the 1400’s added a scarcity and rivalry to the informational
good, by virtue of the natural exclusionary effect that flows from their physicality.
Importantly, they thus limited the economic use of the good, so that, for example, even if
universal education was ecclesiastical and sovereign policy, it could not have been effected.
The technologies of information use had added certain economic characteristics to the
informational good which determined and justified how the good was managed and used.
Now inherently economic, in the sense that it is a scarce and rival good, the information good
justifies the application of exclusive ownership regulated by property rules.
In this respect, historic technologies of information use have created a quantitative
relationship (however prosthetic) between information availability and information needs.
They have also, as previously mentioned in footnote 11, historically acted as a natural and
easily maintained incentive, above and beyond any conceptual exclusion offered by law, for
the creation of information goods. The usual defence of applying concepts of exclusive
ownership and property rules to informational goods is that because they are non-scarce and
non-rival, they do not naturally merit funds and time being spent on their creation. However,
before such concepts were ever applied to informational goods, technologies of information
use offered an exclusionary effect that allowed society to feel better about investing such time
and money. The application of legal doctrine only occurred subsequent to this, and only in
order to alleviate the problems of the quantitative relationship that had now been imposed on
informational goods. While it is easy to claim that such application of legal doctrine now acts
as an incentive, since it arguably does, that was not the initial justification for its use. In a
more fundamental respect, it is the existence of the quantitative relationship that acts to justify
the application of legal materials as systems of economic management. The problems of
copyright infringement on-line are direct evidence of this.
2.3 The Importance of the Quantitative Relationship and the Technology of Information
Use
In this respect the existence of a quantitative relationship is of vital importance in determining
the validity of any application of law in order to effect distributive justice, either for
informational goods or more physical goods. However, as regards information goods, the
technology of information use is also of vital importance because it can act to create the
quantitative relationship. This adverse effect on information goods by technology is not a
static unchanging effect, however. Importantly, technologies of information use can also
reverse this effect. If the effect of the technology changes, the argument for applying systems
of management to information is therefore threatened. What is currently occurring is that new
technological circumstances of society have reversed the historical imposition of a
quantitative relationship on informational goods by technologies of information use. These
two new technologies increase the usefulness of information by re-asserting its intangible
character, having the economic effect of returning information to its natural economic state
i.e. non-scarce and non-rival.
These new technologies of information use are digitisation, which marks a move from the
representation of information via analogue methodology (with its reliance on physical
models, which are limited by the constraints of quantitative relationships) to digital
methodology, (with its reliance on abstract symbols; informational goods, and as such not
constrained, quantitatively) and distributed communications, which allows the instantaneous
global communication of such digitally represented information at low cost and high speed.
Such technologies have distinct economic effects on information. The most important is that
they subvert the historical effect of the old technologies of information use, the imposition, in
a necessary fashion, of a quantitative relationship between an informational good and the
want or need for that good. Importantly, these new technologies of information use are still
making information useful, but they are also returning it to its natural economic state and
removing the existence of the quantitative relationship. What is the result of this removal?
Well, if we recall Menger, he stated that the existence of a quantitative relationship between a
good and the want or need for that good acts as an important economic justification for the
application of concepts of exclusive ownership and the property rules that regulate such
ownership. Historically, technologies of information use have provided the quantitative
relationship that acted to justify the exclusive ownership of informational goods. The new
technologies of information use do not naturally provide the same. The economic effect of
these new technologies of information use is therefore fundamentally worrying for copyright
holders wishing to distribute and sell their goods in this new technological environment. It is
worrying because although the owners of existing exclusive rights in certain informational
goods will want to exploit those goods in the new media, the circumstances that previously
justified the application of those systems of management, those rights, no longer exist. One
can, perhaps, begin to see how the illumination of these economic principles might assist in
suggesting that the use of law within rights management systems is unjustified. However, the
first use of the concepts unearthed by the exploration of these principles is the creation of the
objectives of the practice, to which we return.
3. Returning to the Objectives
The points raised in the previous discussion allow us to now determine and appreciate the
objectives of the practice. At its most basic the practice is an attempt to negate the economic
effect of the new technologies of information use because they are problematic in ensuring
the continued justification of applying legal systems of management to informational goods.
How is the practice doing this? Quite simply, it does this by creating a quantitative
relationship between the desire for informational goods and the amount of informational
goods. This fact explains the first objective of the practice; the exclusion of free access to
information goods that are digitised and placed on-line. In order to understand the second
objective of the practice, one must understand a little of another aspect of the economic
theory of Menger, as previously mentioned; his general theory of value.
Quite simply, Menger has stated in outlining his general theory of value that if one
understands the effect of something existing in quantitative relationship and one can
command that understanding, one can create value. The perception of the quantitative
relationship and, more importantly, the necessary economising that results from it can ensure
the creation of value in goods. It does so because it ensures that those who so perceive
become aware that the satisfaction of needs dependant on a good subsequent to a quantitative
relationship, is itself dependant on the level of availability of that good. This is not simply
awareness of the requirement to economise, but an awareness of the importance certain goods
attain because they require economising. It results in the creation of value, which, as Menger
suggests, ‘is thus the importance that individual goods or quantities of goods attain for us
because we are conscious of being dependent on command of them for the satisfaction of our
needs’. Therefore if one creates a quantitative relationship between a good and the desire for
it, but is aware of the importance such a state has, and utilises, or commands, that awareness,
one can create value. This explains the second objective of the practice, the control of the use
of informational works subsequent to paid access. Of course, access and use must be allowed
if the owner wants to profit at all from the distribution of goods on-line, but controlling that
use ensures the continuation of the quantitative relationship and, through such
commandeering, the creation of value. These two objectives are the regulatory objectives of
the practice, and are, I suggest, generic to all rights management systems, irrespective of the
technology involved. However, the practice has another objective, or rather set of objectives.
The exclusion of access and the control of use must take place in a distinctive electronic and
digital environment. The practice must therefore achieve, technologically, the exclusion of
free access to information works and must achieve, technologically, the control of use
subsequent to access. These are the architectural objectives of the practice, and the
distinction, while it might initially appear trite, is an important one. It is the distinction
between what is to be achieved (the regulatory objectives) and how it is achieved (the
architectural objectives). The architectural objectives are not of concern in this paper,
although there are major problems with that aspect of the practice also.
What is useful about isolating these two sets of objectives, the regulatory and the
architectural, is that they allow one to form a considered and proper notion of the practice, far
removed from the ineffectual pithiness of such terms as Digital Rights Management or
Technological Control Measures. It allows one to suggest that the practice is one concerned
with the creation of techno-legal systems that manage informational goods in the digital
and/or distributed communications environment, although even this lengthy definition does
not do the previous discussion any service. In addition, the process of unearthing the
objectives has required the additional exploration of economic theory that is not only
extremely useful in establishing just what the practice is about, but in also encouraging
criticism of the practice as a result of this better understanding, with which the paper
concludes.
4. Assessing the Justification.
The main difficulty with the practice is that the objectives, and the exercise of the objectives,
would appear to be justified as a continual application of historic concepts of the exclusive
ownership of informational goods and property rules that regulate such ownership and the
freedom to, and of, contract4 with such rights.
Such doctrinal aspects are reflected in the regulatory objectives which see the exclusion of
access as a result of exclusive ownership and control of use as a result of the freedom to
contract. It would appear, however, that such doctrines are being utilised in the context of the
practice without any appropriate accommodation of the circumstances of the practice and
their suitable use within it. It appears that they are being applied here simply because they can
be, and not, as has been the case historically, because they are required to be. Such a simple
justificationary argument does not suffice to explain why the practice, its objectives and their
use of legal doctrine, are justified. In fact, the practice, given such understanding of it, might
be unjust.
How? Utilising our exploration of economic theory in defining the objectives of the practice,
one can begin by pointing out that the technological circumstances of society have changed.
This change has effected the economic character of information goods that are used in the
new media. The change has subverted the existence of the historic quantitative relationship
which, as has been discussed, acted, if not to justify the application of systems of
management to informational goods, at least to rationalise it. Because of the importance such
technological circumstances have in determining the economic character of information and
thus determining whether it exists in a quantitative relationship or not, such circumstances
effect whether the application of systems of management – of legal doctrine – are properly
justified. If these circumstances are not properly accommodated or recognised then the use of
law might be unjust. It appears that this is what is occurring with the use of doctrine in the
practice. Exclusive ownership of informational goods that are placed within the digital and
distributed communicative environment does not appear to be as strongly required as when
such informational goods were utilised by historic technologies of information use. The
economic phenomena that create a quantitative relationship between the amount of
informational goods and the desire for informational goods no longer exist to the degree that
they did with historic technologies of information use. Without the quantitative relationship,
systems of management to ensure the distributive justice of the good are less required.
However, the practice is applying such a system of management in order to protect vested
interests. The initial exclusion of access is nothing more than the utilisation of the conceptual
protection offered by ‘property rights’ in order to spite the economic character and resultant
benefits of the digital and distributed communicative environment. In addition, the contractual
definition of such exclusive ownership is conceptually problematic and also practically
problematic give the technological constraints of the environment.
This is true in an economic fashion, as has been explored throughout the paper. One can also
suggest it is also true from the perspective of moral philosophy, particularly the moral
philosophy of Hume.
4.1 The Assistance of Moral Philosophy
Hume, in talking of the origins of justice and property in his Treatise of Human Nature
(Hume, 2000), begins by following a similar thread to that of Menger. He points out that
society exists with needs and wants and that things are supplied in nature to satisfy those
wants. Or, rather, as Hume puts it, nature presented society with ‘numberless wants and
necessities’ and ‘slender means, which she affords to the relieving these necessities’. Hume
suggests the formation of society allows for the compensation of such infirmities, since the
combination of talent and skill by society augments the abilities of man in combating the
slender means provided by nature. Hume goes on to suggest that while society provides a
better arrangement for humankind, certain particulars of mankind’s natural temper and
outward circumstances continue to affect such a union of society. For example, mankind is
selfish and would love no other better than himself. More importantly, regarding the outward
circumstances, Hume suggests that there are three different types of goods; the ‘internal
satisfaction of the mind, the external advantages of our body, and the enjoyment of such
possessions as we have acquir’d by our industry and good fortune’. While Hume considers
the first is ‘perfectly secure’ and the second ‘of no advantage to him who deprives us of it’ the
last, rather perversely, is more complicated. The improvement of such goods is to the chief
advantage of society and yet ‘the instability of the their possession, along with their scarcity is
the chief impediment’ to achieving an ultimate improvement of such goods. This argument is
much the same as Mengers concerning the quantitative relationship between goods and needs
as it highlights the defining aspect of that relationship; scarcity.
Uncultivated nature, Hume suggests, has no possibility of providing society with an answer to
this problem. Artifice, however, or human nature, can provide a remedy. The problem, as
Hume outlines it, is that ‘Men come to seek a remedy in order to place goods, so far as is
possible, on the same footing with the fix’d and constant advantages of the body and the
mind’. Simply, society realises that the principal problems in society arise from the scarce
nature of goods. Hume is suggesting, as Menger as done, that goods exist in a quantitative
relationship concerning their availability (or scarcity) and the desire for such goods. Like
Menger, Hume realises that a system of managing such goods, so that they appear to be on the
same footing with the ‘fix’d and constant advantages of the body and the mind’ is required.
The remedy, Hume suggests, ‘can be done after no other manner, than by a convention
enter’d into by all the members of the society to bestow stability on the possession of those
external goods, and leave everyone in the peaceable enjoyment of what he may acquire by his
fortune and industry’. This is essentially the idea of exclusive ownership of goods, for as
Hume suggests, the general observation becomes ‘it will be for my interest to leave another in
the possession of his goods, provided he will act in the same manner with regard to me’. In
addition to exclusive ownership, Hume identifies the ideas of rules relating to such exclusive
ownership; ideas of justice and injustice in the use and transfer of such exclusively owned
objects, notions of property, rights and obligations.
Importantly, Hume always asserts that the use of these instruments as instruments of justice
emerges from the convention established by society to allow exclusive ownership, a
convention that itself results from inconvenient circumstances. Those inconvient
circumstances are ‘the selfishness and limited generosity of the human mind’ and the ‘easy
change of external objects allied to their scarcity in comparison to the wants and desires of
man’. Hume is highlighting the importance of the ability of goods to exist in a quantitative
relationships in justifying the concepts of exclusive ownership of goods and subsequent
property rules.
Rather more importantly, for the purposes of this paper, Hume also asserts that if these
inconvient circumstances changed, the justified use of the systems of management changes.
As Hume states, ‘tis only from the selfishness and confin’d generosity of man, along with the
scanty provision nature has made for his wants, that justice derives its origin’, referring to the
justice embodied in exclusive ownership and property rules. In this respect, similarly to
Menger, but from a moral perspective, Hume is asserting the quantitative relationship as
central in justifying the application of such remedial instruments. More generally, (and
perhaps more importantly), Hume is asserting the importance of external circumstances, of
politics, in justifying the use of law. He is saying that law is not a self-justificationary
construct.
5. Conclusion
Both Menger and Hume assert the importance of external circumstances in any properly
justified use of law. Menger does it from an economic perspective, Hume from a moral
perspective. The practice of rights management relies on legal doctrine, but in a fashion that
ignores the important circumstances that surround it, circumstances which must be
accommodated if any use of law is to be justified. In this respect the practice might be
unjustified. The use of doctrine might rather be a self-justificationary act, suggesting that law
has some ‘immanent moral rationality’ (Weinrib, 1997) that can be applied to all
circumstances without any change to reflect those circumstances. Why? The idea that the law
is like this allows its application where the original purpose of the law no longer exists. If law
can justify its own existence simply by being ‘law’, it can be continually applied, even when
the important reasons for its initial creation and use are absent. In this way, it can act to
protect the activities and interests of those who have historically relied on the protection
offered by the law, but, if circumstances were properly accommodated, could not do so any
longer. In this respect, the practice of rights management appears to be simple act of vested
interest protection.
Notes and References
1. Books
Menger C (1994) Principles of Economics, (Libertarian Press).
Hume D (2000) A Treatise of Human Nature, Norton, D.F., & Norton M.J. (ed) (Oxford:
Oxford University Press).
2. Articles
Weinrib E.J. (1997) ‘Legal Formalism: On the Immanent Rationality of Law’, Yale Law
Journal 949
As Menger points out, in such a scenario, ‘the satisfaction of their needs, and hence their lives and
well being, would be very inadequately assured’. cf. Menger, 1994, p. 78.
2 Menger suggests that in determining the available quantities of goods in relation to the need for that
good can result in one of three relationships; either requirements are larger than the available quantity,
requirements are smaller than the available quantity or requirements and quantity are the same.
Whatever the outcome, the important point to note is that physical goods are inherently quantitative
i.e. there is no relationship where the quantity of the good is not an important aspect in considering
how it can be used.
3 In this paper I am explicitly ignoring the justificationary argument that would suggest, for example,
that the application of a system of management to informational goods is required in order to ensure
they come into existence. This is usually referred to as the incentive argument. It suggests that because
informational goods are non-scarce and non-rival, no one will spend time or money creating them
because they will not be able to get a return on their investment. I believe that this argument, while
attractive, is insufficient, for the following reasons. Prior to any application of any system of
management, such as exclusive ownership and property rules, society created information goods, and
society found useful ways of excluding those information goods in order that they could become scarce
and rival, and thus valuable. This was mostly achieved as a result of the necessary technologies of
information use which added an inherent exclusivity to information goods, and thus acted as an
incentive for their creation. This actual, practical exclusion was sufficient to provide the economic
incentive to create information goods. A conceptual exclusion, offered by systems of law, was not
initially required, and quite probably would have been ignored. However, one problem that the
exclusion offered by technologies of information use did cause, was the creation of a quantitative
relationship between the desire for information and the availability of information. I suggest that it is
because of this reason that the application of legal doctrine, as system of management, is
fundamentally required, because of the need to minimise the injustice caused by information being
expressed via physical technologies of information use. The incentive argument is initially appealing,
but fails to satisfy because the incentive offered by the conceptual exclusion of law is better achieved,
and better maintained, by an actual exclusion by technology. The need that conceptual exclusion has
of technological exclusion in the online environment is direct evidence of this. The problem with the
technological method is that is results in the quantitative relationship, which has its own problems, as
we shall see.
4 Although the legal doctrine of the freedom to, and of, contract has not been assessed in this paper, the
assessment of the ownership and property doctrinal aspects are sufficient. The reason for this is that
contract can be viewed as a mere definition of the initial right proffered by exclusive ownership. As
such, discussion of the problems with the initial right can suffice for discussions concerning the
definition of the right, although this is not to suggest that there are no problems, either conceptually or
practically, with the contractual definition of inappropriate rights. Conceptually, one can point to the
lack of just causa with the contractual definition of an inappropriate right. Practically, the distinction
between the regulatory objectives and the architectural objectives has allowed further work on this
area since how, technologically, the objectives of the practice are achieved has highlighted problems
with the technological contractual definition of usage rights subsequent to paid access. The limits of
space herein restricts any substantial discussion of these points.
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