Catherine Schroeder
83 GEO. WASH. L. REV. 240
The goods purchased by consumers today are increasingly digital or electronic
in nature, with copyrighted components becoming commonplace in
many industries. This situation has created a conflict between intellectual
property rights and consumer property rights. The enforcement of intellectual
property rights, and the introduction of measures designed to prevent the violation
of those rights, have had the effect of eroding consumers’ personal
property rights in the products they purchase.
Most software purchased by consumers, and many electronic devices as
well, are sold under license agreements that restrict consumers’ rights in their
products. Many products are also sold with digital rights management
software, which prevents consumers from using their property in various ways
as a practical matter. These digital rights management schemes are also
equivalent to legal restrictions, due to statutory provisions that criminalize
their circumvention. Most consumers, however, do not read these license
agreements or understand the legal implication of circumventing digital rights
management schemes, even in furtherance of a legal purpose. This situation
creates both consumer disappointment and traps for the unwary, as consumers
“buy” a product only to discover that they cannot use it as they expected, or
that they are legally liable for doing so.
This Note proposes a legislative solution that would require notification
on any product sold with either legal or practical restrictions on any of a proposed
suite of fundamental rights of ownership. This solution would allow
consumers to choose the bundles of rights and features that most appeal to
them, and would end the consumer disappointment at unexpected and unwelcome
restrictions. This solution would also allow the existing market pressure
in this direction to incentivize less restrictive options, rather than using more
intrusive or burdensome government regulation to achieve this goal.
