Governing access to user-generated content: The changing nature of private ordering in digital networks

Introduction Copyright law, which governs the use of creative works, is undoubtedly one of the legal regimes most susceptible to digital technology. The ease of copying and distributing works through digital networks makes it increasingly difficult for copyright owners to enforce their rights, established by public ordering. At the same time, however, digital networks have opened up new opportunities for governing cultural works through private ordering. Content providers can contract directly with the masses of end users connected via digital networks. They can also technically control the use of works, long after their distribution to the public, by employing technological protection measures (TPMs). Public ordering and private ordering are two fundamentally different approaches to governance. Public ordering refers to rule-making processes, which are designed by the state and its apparatus. Its norms reflect the outcome of collective action mechanisms, which are formulated and applied from the top down by public institutions. Private ordering, by contrast, concerns bottom-up processes, whereby each party voluntarily chooses to undertake the norms that will govern its behavior. This definition captures the fundamental justifications for the enforcement of norms created by private ordering: their self-imposition by the parties is considered morally justifiable and economically efficient. One question addressed by this chapter is whether this description holds for private ordering when applied to licenses that govern access to creative works.