Lochner in Cyberspace

Julie E. Cohen
University of Pittsburgh School of Law
cohen@law.pitt.edu

Ninety years ago, in _Lochner v. New York_, the Supreme Court
struck down a maximum-hours law as an unconscionable invasion
of employer-employee freedom of contract and, by implication,
of the employer?s property rights in his business.
By the mid-1930's, the Court had repudiated this approach and
accepted, as it does to this day, that Congress could enact laws
reasonably designed to regulate commerce in the interest of
public policy without running afoul of supposedly universal
natural rights. To modern lawyers, ?_Lochner_? has become an
epithet used to characterize an outmoded way of thinking about
rights and regulation; it goes without saying that nobody, or
hardly anybody, takes the doctrine it represents seriously.
This paper will argue that the _Lochner_ vision is alive and well
on the digital frontier, masquerading in the rhetoric of efficiency.
Its premises ? the absolute sanctity of private property and freedom
of contract, the relative insufficiency of public policy as a
counterweight, and the illegitimacy of laws that have redistributive
effects ? undergird recent developments in the field of ?rights
management.? The rights management systems envisioned by copyright
owners such as the Association of American Publishers will not only
set and enforce the terms and conditions of access to copyrighted
content, but also allow copyright owners to abrogate public rights
such as fair use via electronic contract. Copyright owners contend
that such regimes are necessary to enable them to protect their
property, and that denying them this right would work a
redistribution to the public. A related argument that is likely to
be raised as disputes over access arise is that an absolute right to
control access to copyrighted works flows from the Madisonian notion
of ?property? in one?s speech. Similar themes inform the
emerging debate about collection, use and disclosure of reader
identifying information. Thus, a right to collect personal data
follows from the absolute right to dictate the terms of access to
copyrighted ?property,? and the purported freedom of consumers to
accept or reject those terms. The collected data itself then
becomes ?property,? with the result that its collector acquires
a vested right to use and disclose it. Finally, the argument
goes, the communication of this ?owned? information to others is
protected commercial speech. The paper will address each of
these arguments, and will suggest that it is neither accurate nor
wise to frame the debates over access and reader privacy in terms
of absolute property and contract rights. In the case of copyright,
it is inaccurate because copyright owners have never owned the
full bundle of rights they now seek to protect through private
technological measures. Invoking the antiredistributive animus
that characterized the _Lochner_ era obscures the fact that the
redistribution worked by rights management regimes is from the
public to copyright owners, not the other way around. Similarly,
privacy-related law does not currently grant third parties absolute
freedom to collect, use, and disclose personal identifying data.
More fundamentally, the property-and-contract paradigm elides vital
policy questions about the extent of the monopoly that copyright
should afford creators of digital works and the degree to which
individual reading activities should be rendered transparent to
all comers. It is these questions on which law- and policy-makers
should focus.