Cassandra’s curse, which assured that her prophesies will come true, but that no one would ever believe her, evokes three major predictions in regard to Intellectual Property in the information era. First, the information era requires no “Law of the Horse”, as phrased by Judge Easterbrook, as a sound law of intellectual property be applicable to digital technologies as well, instead of creating new law for every new step in technology’s evolution. Secondly, Lessig’s seminal “code is law” reframed this dilemma, in reference to private conglomerates versus legislative authority. Thirdly, John Perry Barlow, in his ʻDeclaration of the Independence of Cyberspace’ predicted that selling information, i.e.: wine, will not require any bottles, namely, IP Law.
Prima facie, Perry Barlow was over optimistic. Justice Eastbrook succumbed to “The Law of the Horse” in ProCD v. Zeidenberg, in which he preferred the legitimation of the new era’s contract, i.e.: shrink-wrap licenses, over Copyright Law paradigms, and Lessig, who advocated for governmental legal interference, ended up confronting the Digital Millennium Copyright Act (“DMCA”) with partial success in Lenz v. Universal Music Corp.
Yet, parallel to the legal axis that led to “code is law” by creating a “para-copyright” through the DMCA and the EU Digital Single Market Directive (“DSM”), that are backed by the monolithic vocabulary of the Enlightenment era, the evolution of the audience axis, that leans on Postmodernist vocabulary, as seen through the “Cultural Dominant” media design in Western culture major stages, from the Greek tragedies to the recent case of Bel-Air (film), defies the former. Hence, tacitly, code creates a new law; not from the superior layer of imposed legislation downward, but from the users’ undercurrent of creativity upward. The transformation of Cassandra’s curse into Cassandra’s triumph will assure that we live free of fear of imaginary bottles, with the ability to create our cultural code as our law of the horse.
Cassandra's Curse or Cassandra's Triumph: Three Tales of Intellectual Property Revised,
43 Loy. L.A. Ent. L. Rev. 111
Available at: https://digitalcommons.lmu.edu/elr/vol43/iss2/2