Copyright and the Jurisprudence of Self-Help

The proposed draft of Article 2B grants broad rights to enforce electronically contract provisions governing access to and use of digital works. Purveyors of digital works may engage in electronic self-help following breach of contract, and may also elect to foreclose unauthorized uses ex ante, via electronic “regulation of performance.” This Article examines these provisions in light of existing law authorizing self-help repossession of tangible chattels, leading academic justifications for self-help repossession, and federal copyright law and policy. It concludes that the provisions authorize an unprecedented degree of intrusion into private homes and offices, that they lack a sound theoretical basis, and that their adoption would threaten constitutionally-mandated limits on copyright protection. It concludes, further, that the law should afford users of digital works rights of electronic self-help where necessary to preserve the copyright balance.