Abstract: MUDDY RULES FOR CYBERSPACE.

Dan L. Burk, Seton Hall University
School of Law, One Newark Center, Newark, NJ 07102-5210.

Digital communication media such as the Internet pose difficult
challenges for traditional forms of intellectual property
protection. Much recent scholarship and considerable governmental
attention has been focused on adapting and expanding copyright to
encompass digital works of authorship. These efforts have been
justified on the grounds that clear property rights are necessary to
allow efficient allocation of intellectual property between private
parties.

However, these rationales ignore the literature regarding the
efficiency of unclear or "muddy" property entitlements. Where
transaction costs of private bargaining are high, "muddy" rules will
tend to force parties into informal bargaining transactions.
Transaction costs on the Internet may tend to be high because of the
number of parties involved, the difficulty of locating the parties,
and the transborder nature of the medium. Thus, informal
transactions or "self-help" may be the most efficient means for
provision of digital works. In such a case, "muddy" or unclear rules
should perhaps be favored for on-line entitlements.