\*\ Chairman of Counsel Connect and Co-Director of the Cyberspace Law Institute.
\**\ Visiting Associate Professor of Law, Georgetown University Law Center and Co-Director of the Cyberspace Law Institute. The authors wish to thank Becky Burr, Larry Downes, Henry J. Perritt, Jr., and Ron Plesser, as well as the other Fellows of the Cyberspace Law Institute (Jerry Berman, John Brown, Bill Burrington, Esther Dyson, David Farber, Ken Freeling, A. Michael Froomkin, Robert Gellman, I. Trotter Hardy, Ethan Katsh, Lawrence Lessig, Bill Marmon, Lance Rose, Marc Rotenberg, Pamela Samuelson, and Eugene Volokh), CLI Co-Directors Carey Heckman, John Podesta, and Peggy Radin, and Jim Campbell, for their assistance in the formulation of these ideas. The usual disclaimer, of course, applies: the authors alone are responsible for errors, omissions, misstatements, and misunderstandings set forth in the following.
\1\ American Banana Co. v. United Fruit Co. 213 US 347, 357 (1909) (holding that as a general rule of construction, any statute is presumed to be intended to operate within the territorial limits of the sovereign).
\2\ See 1a Jerome Gilson, Trademark Protection and Practice ß 9.01 (1991); Dan L. Burk, Trademarks Along the Infobahn: A First Look at the Emerging Law of Cybermarks, 1 U. Rich. J.L. & Tech. 1 (1995), available at http://www.urich.edu/~jolt/v1i1/burk.html; Jeffrey M. Samuels & Linda B. Samuels, The Changing Landscape of International Trademark Law, 27 G.W. J. Int'l L. & Econ. 433 (1993-94).
\3\ Dawn Donut Co. v. Hart's Food Stores, Inc., 267 F.2d 358 (2d. Cir. 1959) (holding that the owner of a registered trademark may not enjoin another's use of that mark in a geographically separate market if the holder of the registered mark does not intend to expand into that market).
\4\ See e.g., California Fruit Growers Exchange v. Sunkist Baking Co., 166 F.2d 971 (7th Cir. 1947) (permitting "Sunkist" fruits and "Sunkist" bakery products); Restaurant Lutece Inc., v. Houbigant, Inc., 593 F.Supp. 588 (D.N.J. 1984) (denying the restaurant "Lutece's" preliminary injunction against "Lutece" cosmetics).
\5\ Clark W. Lackert, International Efforts Against Trademark Counterfeiting Colum. Bus. L. Rev. 161 (1988); Samuels & Samuels, supra note \2\, at 433.
\6\ Restatement (Third) of Foreign Relations Law of the United States ß 201 (1987) ("Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government . . . ."); id. ß 402 (a state has "jurisdiction to prescribe law with respect to (1)(a) conduct that, wholly or in substantial part, takes place within its territory; (b) the status of persons, or interests in things, present within its territory; (c) conduct outside its territory that has or is intended to have substantial effect within its territory; . . ."); see also Lea Brilmayer, Consent, Contract, and Territory, 74 Minn. L. Rev. 1, 11-12 (noting the significance of state authority derived from sovereignty over physical territory in the context of social contract theory).
\7\ The ability of the sovereign to claim personal jurisdiction over a particular party, for instance, turns importantly on the party's relationship to the physical jurisdiction over which the sovereign has control, e.g., the presence of the party or assets belonging to the party, within the jurisdiction, or activities of the party that are directed to persons or things within the jurisdiction. Similarly, the law chosen to apply to a contract, tort, or criminal action has historically been influenced primarily by the physical location of the parties or the deed in question. See generally, Henry H. Perritt Jr., Jurisdiction in Cyberspace (October 28, 1995) (unpublished manuscript on file with the Stanford Law Review). Perritt, LAW AND THE INFORMATION SUPERHIGHWAY, ch. 12 (Wiley, 1996).
\8\ Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United a Nations, G.A. Res. 2625, 35th Sess. (1970); Declaration of the Inadmissibility of Intervention into the Domestic Affairs of States, G.A. Res. 2131, 30th Sess. (1965). See also Brilmayer, supra note \6\, at 6 (discussing contractarian theories of state sovereignty and legitimacy).
\9\ The exception proves this rule--we feel outrage when a journalist who crosses a territorial boundary without any signs is imprisoned for any supposed offense against the local state. Some "signposts" are culturally understood conventions that accompany entry into specialized places, such as courtrooms, office buildings, and churches. But not all signposts and boundaries dividing different rule sets are geographically or physically based. Sets of different rules may apply when the affected parties play particular roles, such as members of self-regulatory organizations, agents of corporate entities, and so forth. Henry H. Perritt Jr., Self-governing Electronic Communities 36-49, 59-60 (Apr. 1995) (on file with the Stanford Law Review). But even these roles are most often clearly marked by cues of dress, or formal signatures that give warning of the applicable rules. See text at notes \72d\ and \79\.
\10\ As Woody Allen once quipped: "Space is nature's way of keeping everything from happening to you." Although there is distance in online space, it behaves differently from distance in real space. See generally, M. Ethan Katsh, The Electronic Media and the Transformation of Law 92-94 (1989); M. Ethan Katsh, Law in a Digital World 57-59, 218 (1995).
\11\ See Burk, supra note \2\, at 12-14, for a general description of the Domain Naming System; see also Bush, Carpenter, & Postel, Delegation of International Top Level Domains, Internet-Draft ymbk-itld-admin-00, available at http://www.internic.net; RFC 882, Domain Names--Concepts and Facilities, available at ftp://ds.internic.net/rfc/rfc882.txt; RFC 883, Domain Names--Implementation and Specifications, available online at ftp://ds.internic.net/rfc/rfc883.txt.
\12\ See, Jon Auerbach, Fences in Cyberspace; Governments Move to Limit Free Flow of the Internet, Boston Globe, Feb. 1, 1996, at 1(surveying "digital Balkanization" of the Internet through government censorship and filtration); Seth Faison, Chinese Cruise Internet, Wary of Watchdogs, N.Y. Times Feb. 5, 1995, at A1; see also infra, note \20\ (describing German government's attempts to interrupt German citizens' access to certain Usenet discussion groups; see generally Anne Wells Branscomb, Jurisdictional Quandaries for Global Networks, in Global Networks: Computers and International Communication 83, 103 (exploring efforts to exercise jurisdictional control over electronic information services).
\13\ Anthony Paul Miller, Teleinformatics, Transborder Data Flows and the Emerging Struggle for Information: An Introduction to the Arrival of the New Information Age, 20 Colum. J. L. & Soc. Probs. 89, 107-08, 127-32 (1986) (exploring the willingness of some national governments to forego the benefits of unregulated TDF's so as to protect their political, social, and cultural interests).
\14\ Id. at 105-07, 111-18 (suggesting that the data storage capabilities and anonymity of information technologies have prompted the Organization for Economic Cooperation and Development (OCED) and governments throughout Western Europe to restrict the content of TDF's so as to protect individual and corporate privacy).
\15\ Id. at 109-11 (noting the drive, particularly among computer software developers, to curb the threat that TDF's pose to intellectual property rights); see also Book Publishers Worry About Threat of Internet, NY Times (March 18, 1996) at A1 (describing appearance of Le Grand Secret, a book about former French President Francois Mitterand, on the Internet despite its banning in France, and the general concern of book publishers about unauthorized Internet distributions).
\16\ For example, A. Jared Silverman, former chief of the New Jersey Bureau of Securities, expressed concern about the ability of the State to protect its residents against fraudulent schemes if it does not assert the right to regulate every online securities offering accessible, via the net, from within the State. Jared Silverman LEXIS Counsel Connect to [insert title], posted Law of the Electronic Road Seminar. See also Gregory Spears, Cops and Robbers on the Net, Kiplinger's Pers. Fin. Mag., Feb. 1995, at 56 (surveying responses to online investment scams). Moreover, various state attorneys general have expressed concern about gambling and consumer fraud reaching their state's residents over the net. See note \21\, infra.
\17\ The difficulty of policing an electronic border may have something to do with its relative length. See comment of Prof. Peter Martin, NewJuris Electronic Conference (Sept. 22, 1993) at p. 13 (discussing cyberspace's "near infinite boundary" with territorial jurisdictions). Physical roads and ports linking sovereign territories are few in number, and geographical boundaries can be fenced and policed. In contrast, the number of starting points for an electronic "trip" out of a given country is staggering, consisting of every telephone capable of connecting outside the territory. Even if electronic communications are concentrated into high volume connections, a customs house opened on an electronic border would cause a massive traffic jam, threatening the very electronic commerce such facilities were constructed to encourage.
\18\ Cf. Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights 221 (1995) ("White Paper") (discussing cross-border transmission of copies of copyrighted works):
Although we recognize that the U.S. Customs Service cannot, for all practical purposes, enforce a prohibition on importation by transmission, given the global dimensions of the information infrastructure of the future, it is important that copyright owners have the other remedies for infringements of this type available to them.
Id. Ironically, the Voice of America cannot prevent the information it places on the net from doubling back into the United States, even though this domestic dissemination violates the 1948 Smith-Mundt Act. John Schwartz, Over the Net and Around the Law, Wash. Post, Jan. 14, 1995, at C1.
\19\ See Walter B. Wriston, The Twilight of Sovereignty
(1992) (examining the challenges to sovereignty posed
by the information revolution):
Technology has made us a "global" community in the literal sense of the word. Whether we are ready or not, mankind now has a completely integrated international financial and information marketplace capable of moving money and ideas to any place on this planet in minutes. Capital will go where it is wanted and stay where it is well treated. It will flee from manipulation or onerous regulation of its value or use, and no government power can restrain it for long.
\20\ For example, German authorities, seeking to prevent
violations of that country's laws against distribution
of pornographic material, ordered CompuServe to disable
access by German residents to certain global Usenet
newsgroups that would otherwise be accessible through
that commercial service. See Karen Kaplan, Germany
Forces Online Service to Censor Internet, L.A. Times,
Dec. 29, 1995, at A1; Why Free-Wheeling Internet Puts
Teutonic Wall over Porn, Christian Sci. Monitor, Jan
4, 1996, at 1; Cyberporn Debate Goes International;
Germany Pulls the Shade On CompuServe, Internet, Wash.
Post, Jan. 1, 1996, at F13 (describing efforts by a
local Bavarian police force had the effect of requiring
CompuServe to temporarily cut off the availability
of news groups to its entire audience (at least until
a way to prevent delivery of specified groups to the
German audience could be developed). Anyone inside
Germany with an Internet connection could easily find
a way to access the prohibited news groups during the
ban. Auerbach, supra note \12\, at 15. Although initially
compliant, CompuServe subsequently rescinded the ban
on most of the files by sending parents a new program
to choose for themselves what items to restrict. CompuServe
Ends Access Suspension: It reopens all but five adult-oriented
newsgroups. Parents can now block offensive material,
L.A. Times, Feb. 14, 1996, at D1.
Similarly, Tennessee may insist (indirectly, through
enforcement of a federal law that defers to local community
standards) that an electronic bulletin board in California
install filters that prevent offensive screens from
being displayed to users in Tennessee if it is to avoid
liability under local obscenity standards in Tennessee.
See United States v. Thomas, _ F.3d _, 1996 WL 30477
(6th Cir. 1996) (affirming the convictions of a California
couple for violations of federal obscenity laws stemming
from electronic bulletin board postings made by the
couple in California but accessible from and offensive
to the community standards of Tennessee). See generally
Electronic Frontier Foundation, A Virtual Amicus Brief
in the Amateur Action Case, (Aug. 11, 1995), available
at http://www.eff.org/pub/Legal/Cases/AABBS_Thomases_Memphis/Old/aa_eff_vbrief.html.
The bulletin board in this case had very clear warnings
and password protection. This intangible boundary
limited entrance to only those who voluntarily desired
to see the materials and accepted the system operator's
rules. It is our contention that posting offensive
materials in areas where unwilling readers may come
across them inadvertently raises different problems
that are better dealt with by those who understand
the technology involved rather than by extrapolating
from the conflicting laws of multiple geographic jurisdictions.
See text accompanying notes \64\-\69\ supra.
\21\ The Minnesota Attorney General's Office distributed a "Warning to All Internet Users and Providers," (available at http://www.state.mn.us/cbranch/ag/memo/txt), stating that "[p]ersons outside of Minnesota who transmit information via the Internet knowing that information will be disseminated in Minnesota are subject to jurisdiction in Minnesota courts for violations of state criminal and civil laws". Id. (emphasis omitted). The conclusion rested on the Minnesota general criminal jurisdiction statute, which provides that "a person may be convicted and sentenced under the law of this State if the person...(3) Being without the state, intentionally causes a result within the state prohibited by the criminal laws of this State." Minn. Stat. Ann. ß 609.025 (West 1987). Minnesota also began civil proceedings against Wagernet, a Nevada gambling business which posted an Internet advertisement for online gambling services. See Complaint, Minnesota v. Granite Gate Resorts, Inc. (1995) (No. 9507227), available at http://www.state.mn.us/ebranch/ag/ggcom.txt. The Florida Attorney General, by contrast, contends that it is illegal to use the Web to gamble from within Florida but concedes that the Attorney General's office should not waste time trying to enforce the unenforceable. 95-70 Op. Fla. Att'y Gen. (1995), available at http://legal.firn.edu/units/opinions/95-70.html. For a general discussion of these pronouncements, see Mark Eckenwiler, States Get Entangled in the Web, Legal Times, Jan. 22. 1996, at S35.
\22\ See State Regulators Crack Down on "Information Highway" Scams, Daily Rep. For Exec. (BNA), July 1, 1994, available in Westlaw, BNA-DER database, 1994 DER 125 at d16.
\23\ See David G. Post, The State of Nature and the
First Internet War, REASON Apr. 1996, at 30-31(describing
the operation of the alt.religion.scientology Usenet
group, noting that
"Usenet groups like alt.religion.scientology come
into existence when someone . . . sends a proposal
to establish the group to the specific newsgroup (named
"alt.config") set up for receiving such proposals.
The operators of each of the thousands of computer
networks hooked up to the Internet are then free to
carry, or to ignore, the proposed group. If a network
chooses to carry the newsgroup, its computers will
be instructed to make the alt.religion.scientology
"feed," i.e., the stream of messages posted
to alt.religion.scientology arriving from other participating
networks, accessible to its users, who can read --
and, if they wish, add to -- this stream before it
is passed along to the next network in the worldwide
chain. It's a completely decentralized organism --
in technical terms, a ëdistributed database' --
whose content is constantly changing as it moves silently
around the globe from network to network and machine
to machine, never settling down in any one legal jurisdiction,
or on any one computer.").
See, generally, What is Usenet? and Answers to Frequently
Asked Questions about Usenet, available at http://www.smartpages.com/bngfaqs/news/announce/newusers/top.html.
\24\ European countries are trying to protect data regarding their citizens by banning the export of information for processing in countries that do not afford sufficient protections. See Peter Blume, An EEC Policy for Data Protection, 11 Computer/Law Jour. 399 (1992); Joseph I. Rosenbaum, The European Commission's Draft Directive on Data Protection, 33 Jurimetrics 1 (1992); Symposium, Data Protection and the European Union's Directive, 80 Iowa L. Rev. 431 (1995). But the data regarding their citizens' activities may not be subject to their control--it may originate as a result of actions recorded on servers outside their boundaries.
\25\ See Joel R. Reidenberg, The Privacy Obstacle Course: Hurdling Barriers to Transnational Financial Services, 60 Fordham L. Rev. S137 (1992); David Post, Hansel & Gretel in Cyberspace, Am. Law. Oct. 1995, at 110.
\26\ Privacy, at least, is a relatively familiar concept, susceptible of definition on the Net by reference to analogies with mail systems, telephone calls and print publication of invasive materials. But many new issues posed by phenomena unique to the Net are not even so familiar. Because electronic communications are not necessarily tied to real world identities, new questions about the rights to continued existence, or to protection of the reputation, of a pseudonym arise. The potential to launch a computer virus or to "spam the net" by sending multiple offpoint messages to newsgroups, for example, creates a need to define rules governing online behavior. When large numbers of people collaborate across the net to create services or works of value, we will face the question whether they have formed a corporate entity or partnership--with rights and duties of its own that are distinct from those of the individual participants--in a context in which there may have been no "registration" with any particular geographic authority and the rights of any such authority to regulate that new "legal person" remain unsettled.
\27\ See note \11\ supra.
\28\ Conflicts between domain names and registered
trademarks have caused Network Solutions, Inc. (NSI),
the agent for registration of domain names in the United
States, to require that registrants "represent
and warrant" that they have the right to a requested
domain name and promise to "defend, indemnify
and hold harmless" NSI for any claims stemming
from use or registration of the requested name. See
Network Solution Inc., NSI Domain Name Dispute Policy
Statement (Revision 01, effective November 23, 1995),
available at ftp://rs.internic.net/policy/internic/internic-domain-4.txt.
For a useful overview of the domain name registration
system and of the tensions between trademark rights
and domain names, see Gary W. Hamilton, Trademarks
on the Internet: Confusion, Collusion or Dilution?,
4 Tex. Intell. Prop. L.J. 1 (1995). See also Proceedings
of the NSF/DNCEI & Harvard Information Infrastructure
Project, Internet Names, Numbers, and Beyond: Issues
in the Coordination, Privatization, and Internationalization
of the Internet, Nov. 20, 1995, available at http://ksgwww.harvard.edu/iip/nsfmin1.html
(discussing protection of the "trademark community"
on the Net).
\29\ David R. Johnson, The Internet vs. the Local Character
of the Law: The Electronic Web Ties Iowa and New York
into One Big System, Legal Times, Dec. 5, 1994, at
S32 (predicting the transformation of "local"
regulation on the Net).
\30\ Cf. David R. Johnson, Traveling in Cyberspace, Legal Times, Apr. 3, 1995, at 26.
\31\ Indeed, the persistence and accessibility of electronic messages create such a sense of "placeness" that meetings in Cyberspace may become a viable alternative to meetings in physical space. See I. Trotter Hardy, Electronic Conferences: The Report of an Experiment, 6 Harv. J. Law & Tech. 213, 232-34 (1993) (discussing the advantages of e-mail conferences). In contrast, there is no "Telespace" because the conversations we conduct by telephone disappear when the parties hang up. Voicemail creates an aural version of electronic mail, but it is not part of an interconnected system that you can travel through, by hypertext links or otherwise, to a range of public and semi-public locations.
\32\ Some information products combine a local CD-ROM with online access to provide updated information. But even these products typically provide some on-screen indication when the user is going online. Failure to provide notice might well be deemed fraudulent, particularly if additional charges for use of the online system were imposed. In any event, a product that brings information to the screen, from an online location, without disclosing the online connection to the user, should not be characterized as having allowed the user to visit a legally significant user visit to online space. "Visiting" a space implies some knowledge that you are there.
\33\ See infra pp. [ ] (discussing internal differentiation among rule-sets in different online areas).
\34\ See infra note \98\.
\35\ Having a noticeable border may be a prerequisite to the establishment of any legal regime that can claim to be separate from pre-existing regimes. If someone acting in any given space has no warning that the rules have changed, the legitimacy of any attempt to enforce a distinctive system of law is fatally weakened. No geographically based sovereign could plausibly claim to have jurisdiction over a territory with secret boundaries. And no self-regulatory organization could assert its prerogatives while making it hard for members and nonmembers to tell each other apart or disguising when they were (or were not) playing their membership-related roles.
\36\ For example, we will have to take into account the desire of participants in online communications for pseudonymity. This will affect the extent to which information about the applicant's identity must be disclosed in order to obtain a valid address registration. See David G. Post, Pooling Intellectual Capital: Thoughts on Anonymity, Pseudonymity, and Limited Liability in Cyberspace, UNIV. CHIC. LEGAL FORUM (forthcoming), available at http://www_law.lib.uchicago.edu/forum/, also available at http://???/x0029_PoolingintCap.html (discussing the value of pseudonymous communications); A. Michael Froomkin, Flood Control on the Information Ocean: Living With Anonymity, Digital Cash, and Distributed Databases (Dec. 4, 1995) (unpublished manuscript, on file with the Stanford Law Review) (exploring the use and possible regulation of computer-aided anonymity) available at http://www.law.miami.edu/~froomkin; A. Michael Froomkin, Anonymity and Its Enmities, 1995 J. of Online Law art. 4 available at http://www.law.cornell.edu/jol/jol.table.html(discussing the mechanics of anonymity and how it affects the creation of pseudonymous personalities and communication on the Net). And any registration and conflict-resolution scheme will have to take into account the particular ways in which Internet addresses and names are viewed in the marketplace. If shorter names are valued more highly (jones.com being more valuable than jones@isp.members.directory.com), this new form of "domain envy" will have to be considered in developing applicable policy.
\37\ See, e.g., Henry H. Perritt, Jr., Tort Liability, the First Amendment, and Equal Access to Electronic Networks, 5 Harv. J. Law & Tech., Spring 1992, at 65, 106-08 (assessing the applicability of the tort of libel to network users and operators); Michael Smyth and Nick Braithwaite, First U.K. Bulletin Board Defamation Suit Brought, National Law Journal, Sept. 19, 1994, at C10 (noting that English courts may be a more attractive forum for plaintiffs charging defamation in cyberspace).
\38\ Subsequent distribution of printed versions might be characterized as publication, without undermining the benefits of applying this new doctrine, because it is much easier to determine who has taken such action and where (in physical space) it occurred, and the party who engages in physical distribution of defamatory works has much clearer warning regarding the nature of the act and the applicability of the laws of a particular territorial state.
\39\ Edward A. Cavazos, Computer Bulletin Board Systems and the Right of Reply: Redefining Defamation Liability for a New Technology, 12 Rev. Lit. 231, 243-47 (1992). This "right of reply" doctrine might apply differently to different areas of the Net, depending on whether these areas do in fact offer a meaningful opportunity to respond to defamatory messages.
\40\ In the context of "telemedicine", early efforts to avoid this result seem to take the form of allowing doctors to interact with other doctors in consultations, requiring compliance with local regulations only when the doctor deals directly with a patient. See Howard J. Young and Robert J. Waters, Arent Fox Kitner Plotkin & Kahn, Licensure Barriers to the Interstate Use of Telemedicine, (1995) available at http://www.arentfox.com/newslett/tele1b.htm. The regulation of lawyers is muddled: Regulations are sometimes based on where the lawyer's office is (as in the case of Texas' regulation of advertising), sometimes based on the content of legal advice, and sometimes based on the nature and location of the client. See Katsh, Law in a Digital World, supra note \10\, at 178-181.
\41\ Indeed, practicing the "law of the Net" itself presumably requires qualifications unrelated to those imposed by local bars.
\42\ In this, as in other matters, it is critical to distinguish the different layers of the "protocol stack." It may be possible to establish power with regard to physical connections. It is much harder to do so with respect to the logical connections that exist at the "applications" layer.
\43\ Jane C. Ginsburg, Global Use/Territorial Rights: Private International Law questions of the Global Information Infrastructure, J. COPY. SOC. 318, 319-320 (1995).
\44\ See, generally, Friedman, Standards as Intellectual Property, 19 U. DAYTON L. REV. 1109 (1994); William Landes & Richard Posner, An Economic Analysis of Copyright Law, 18 J. LEG. STUD 325 (1989).
\45\ For example, the creative output of lawyers and law professors -- law review articles, briefs and other pleadings, and the like -- may well be determined largely by factors completely unrelated to the availability or unavailability of copyright protection for those works, because that category of authors, generally speaking, obtains reputational benefits from wide dissemination that far outweigh the benefits that could be obtained from licensing individual copies. See Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 293-309 (1970) for an analysis of the incentive structure in the scholarly publishing market; see also Tuckman & Leahey, What is an Article Worth?, 83 J. POL. ECON. 951 (1975).
\46\ There is a large and diverse literature on the new kinds of authorship that are likely to emerge in cyberspace as a function of the interactive nature of the medium, the ease with which digital information can be manipulated, and new searching and linking capabilities. Among the more insightful pieces in this vein are Samuelson, Digital Media and the Changing Face of Intellectual Property Law, 16 RUTGERS COMP. AND TECH. L. J. 323 (1990); Katsh, Law in a Digital Age (1994), chaps. 4, 8, and 9; Volokh, Cheap Speech, 94 YALE. L. J. 1805 (1994); and Turkle, The Second Self: Computers and the Human Spirit (1984).
\47\ Netscape Corp. gave away, at no charge, over 4 million copies of their Web browser; it is estimated that they now control over 70% of the Web browser market, which they have managed to leverage into dominance in the Web server software market, sufficient to enable them to launch one of the most successful Initial Public Offering in the history of the United States. See Netscape IPO booted up;: Debut of hot stock stuns Wall Street veterans, The Boston Globe, August 10, 1995, at 37; With Internet Cachet, Not Profit, A New Stock Is Wall St.'s Darling, NY Times, August 10, 1995, at 1. Other companies are following Netscape's lead; for example, RealAudio, Inc. is distributing software designed to allow Web browsers to play sound files in real time over the Internet, presumably in the hopes of similarly establishing a dominant market position in the server market. See http://www.realaudio.com.
\48\ Esther Dyson, Intellectual Value, WIRED (August 1995).
\49\ David G. Post, Who Owns the Copy Right? Opportunities and Opportunism on the Global Network 2-3 (Oct. 29, 1995) (unpublished manuscript on file with the Stanford Law Review).
\50\ See Jane C. Ginsburg, Putting Cars on the Information Superhighway: Authors, Exploiters, and Copyright in cyberspace, 95 Colum. L. Rev. 1466, 1488 (1995) (concluding that authors enjoy rights whose effective enforcement in cyberspace is today rather uncertain); David G. Post, New Wine, Old Bottles: The Evanescent Copy, Am. Law., May 1995, at 103.
\51\ See David G. Post, White Paper Blues: Copyright and the National Information Infrastructure, LEGAL TIMES (Apr . 8, 1996) at [ ] ("For example, ëbrowsing' on the World Wide Web necessarily involves the creation of numerous ëcopies' of information; first, a message is transmitted from Computer A to (remote) Computer B, requesting that Computer B send a copy of a particular file (e.g., the "home page" stored on Computer B) back to Computer A. When the request is received by Computer B, a copy of the requested file is made and transmitted back to Computer A (where it is copied again -- ëloaded' into memory -- and displayed). And the manner in which messages travel across the Internet to reach their intended recipient(s) -- via intermediary computers known as "routers," at each of which the message is ëread' by means of ëcopying' the message into the computer's memory -- [involve] . . . innumerable separate acts of . . . ëreproduction'. File copying is not merely inexpensive in cyberspace, it is ubiquitous; and it is not merely ubiquitous, it is indispensable . . . Were you to equip your computer with a ëcopy lock' -- an imaginary device that will prevent the reproduction of any and all information now stored in the computer in any form -- it will, essentially, stop functioning.")
\52\ See Jessica Litman, The Exclusive Right to Read,
13 CARDOZO ARTS & ENT. L.J. 29, 40-42 (noting that
under a view that "one reproduces a work every
time one reads it into a computer's random access memory
. . . any act of reading or viewing [a digital] work
would require the use of a computer and would, under
this interpretation, involve an actionable reproduction");
Pamela Samuelson, The Copyright Grab, WIRED Jan. 1996
at 137 (same); Pamela Samuelson, Legally Speaking:
Intellectual Property Rights and the Global Information
Economy, 39 Commun. Assoc. Comp. Machinery 23, 24 (1996)
(browsing of digital works potentially infringing if
"temporary copying that must occur in a computer's
memory to enable users to read documents" is considered
"reproduction" within meaning of Copyright
Act); Post, supra note \50\, at 103-04 ("If the
very act of getting a document to your screen is considered
the ëmaking of a copy' within the meaning of the
Copyright Act, then a high proportion of the millions
of messages traveling over the Internet each day potentially
infringes on the right of some file creator . . . to
control the making of copies. And, if the very act
reading such documents on line involves copying, then
some form of a license . . . would, in this view, be
required for virtually every one of those message transmissions").
\53\ Neel Chatterjee, Imperishable Intellectual Creations:
Use Limits of the First Sale Doctrine, 5 Fordham Intell.
Prop. Media & Ent. L.J. 383, 384, 415-18 (1995)
(discussing Information Infrastructure Task Force proposal
to exclude transmissions from the first sale doctrine).
\54\ See, e.g., Telerate Systems, Inc. v. Cars, 689 F.Supp. 221, 229 (S.D.N.Y. 1988) (finding that copying a "few pages" of a 20,000 page database was substantial enough to weigh against fair use).
\55\ Benjamin Wittes, A (Nearly) Lawless Frontier: The Rapid Pace of Change in 1994 Left the Law Chasing Technology on the Information Superhighway, Am. Law., Jan. 3, 1995, at 1.
\56\ For example, we could adopt rules that make the "caching" of web pages presumptively permissible, absent an explicit agreement, rather than adopting the standard copyright doctrine to the contrary (Caching involves copying Web pages to a hard drive so that future trips to the site take less time to complete). Because making "cached" copies in computer memory is essential to speed up the operation of the Web, and because respecting express limits or retractions on any implied license allowing caching would clog up the free flow of information, we should adopt a rule favoring browsing. See Cyberspace Law Institute, Caching and Copyright Protections (Sept. 1, 1995), available at http://www.ll.georgetown.edu/cli.html; Post, supra note \49\ (proposing a new rule for caching Web pages); Samuelson, supra note \52\, at 26-27 (discussing copyright issues raised by file caching).
\57\ See text accompanying note \11\ supra for an explanations of the domain name system.
\58\ This danger of confusion exists whether the name conflicts with "real world" trademark uses or only other online uses. To be sure, whoever decides these questions must consider the views of geographically based authorities when online names interfere with the existing trademarks of physical goods. But they must also decide ownership questions about online identities with addresses, names, and logos having no application offline. The views of territorially based authorities would appear to have less bearing in this context.
\59\ Domain name space may raise the question whether the Net should develop an online equivalent of eminent domain. Newly discovered public needs, such as to use a particular domain or to eliminate it to establish a new system, could interfere with "investment backed expectations." To keep geographically based trademark authorities at bay, Net authorities may need to "grandfather" in strong global trademarks and prevent those who acquired certain domain names on a "first-come, first-served" basis from engaging in holdups--a responsible "foreign policy" to ward off overregulation by local sovereigns. The impact on individuals of these efforts to pursue the greater good may be require mandatory compensation. Who will pay and how remains unclear.
\60\ See David G. Post, Anarchy, State, and the Internet: An Essay on Law-Making in Cyberspace, 1995 J. Online L. art. 3, 10 available at http://www.law.cornell.edu/jol/jol.table.html, >I>also available at http://**********/X0023_ANARCHY.html.
\61\ A. M. Rutkowski, Internet Names, Numbers and Beyond: Issues in the Coordination, Privatization, and Internationalization of the Internet, (Nov. 20, 1995) (on file with the Stanford Law Review) (identifying issues associated with the administration of Internet names and numbers).
\62\ David W. Maher, Trademarks on the Internet: Who's in Charge?, (Feb. 14, 1996) available at http://www.aldea.com/cix/maher.html (arguing that trademark owners have a stake in the Net that must be taken into account).
\63\ See text accompanying note \86\ infra regarding recent claims by the U.S. Government.
\64\ Typical rules also require refraining from actions that threaten the value of the on line space or increase the risk that the system operator will face legal trouble in the real world. Many coherent on line communities also have rules preserving the special character of their on line spaces, rules governing posted messages, discouraging "flaming" (sending an insulting message) or "spamming" (sending the same message to multiple newsgroups), and even rules mandating certain professional qualifications for participants.
\65\ See Robert L. Dunne, Deterring Unauthorized Access to Computers: Controlling Behavior in Cyberspace Through a Contract Law Paradigm, 35 Jurimetrics J. 1, 12 (1994) (suggesting that system operator agreements to banish offenders would deter unauthorized computer access more effectively than current criminal sanctions).
\66\ See John Seabrook, My First Flame, New Yorker, June 6, 1994, at 70 (describing the online phenomenon of flaming, where a user loses "self control and write[s] a message that uses derogatory, obscene, or inappropriate language").
\67\ A computer user "shuns" another by refusing to receive messages from that person (or, more generally, by employing a software program known as a "kill file" to automatically deflect any e-mail messages from a specified address).
\68\ Computer users "mailbomb" a victim by sending a large number of junk electronic mail messages with the goal of overloading the receiving computer, or at least inconveniencing the receiver.
\69\ Jennifer Mnookin, Virtual(ly) Law: A Case Study of the Emergence of Law on LambdaMOO (May 15, 1995) (unpublished manuscript on file with the Stanford Law Review) (describing the emergence of a legal system in the LambdaMOO virtual community).
\70\ Joanne Goode and Maggie Johnson, Putting Out the Flames: The Etiquette and Law of E-Mail, ONLINE, Nov. 1991, at 61 (suggesting guidelines for using electronic mail and networking; S. Hambridge, Request For Comments: 1855, Netiquette Guidelines, (Oct. 1995) available at ftp://ds.internic.net/rfc/rfc1855.txt.
\71\ James Barron, It's Time to Mind your E-Manners,
N.Y. Times, Jan. 11, 1995, at C1.
\72\ See Henry H. Perritt, Jr., Dispute Resolution
in Electronic Network Communities, 38 VILL. L. REV.
349, 398-99 (1993) (proposing an alternative dispute
resolution mechanism that could be implemented by a
computer network service provider); Henry H. Perritt,
Jr., President Clinton's National Information Infrastructure
Initiative: Community Regained?, 69 Chi.-Kent L. Rev.
991, 995-1022 (1994) (advocating the use of new information
technology to facilitate dispute resolution); I. Trotter
Hardy, The Proper Legal Regime for "Cyberspace",
55 U. Pitt. L. Rev. 993, 1051-1053. One such dispute
resolution service, the "Virtual Magistrate,"
has already arisen on the Net. See http:\\vmag.law.vill.edu:8080/.
\73\ See Hardy, supra note \72\, at 1020 (Law Merchant
was "simply an enforceable set of customary practices
that inured to the benefit of merchants, and that
was reasonably uniform across all the jurisdictions
involved in the [medieval] trade fairs"); Leon
E. Trakman, the Law Merchant: The Evolution of Commercial
Law 11-12 (1983) (Law Merchant was "a system of
law that did . . . not rest exclusively on the institutions
and local customs of any particular country, but consisted
of certain principles of equity and usages of trade
which general convenience and a common sense of justice
have established to regulate the dealings of merchants
and mariners in all the commercial countries of the
civilized world"). Benson describes the development
of the Law Merchant as follows:
"With the fall of the Roman Empire, commercial activities in Europe were almost nonexistent relative to what had occurred before and what would come after. Things began to change in the eleventh and twelfth centuries [with the] emergence of a class of professional merchants. There were significant barriers to overcome before substantial interregional and inter-national trade could develop, however. Merchants spoke different languages and had different cultural backgrounds. Beyond that, geographic distances frequently prevented direct communication, let alone the building of strong interpersonal bonds that would facilitate trust. Numerous middlemen were often required to bring about an exchange . . . . All of this, in the face of localized, often contradictory laws and business practices, produced hostility towards foreign commercial customs and led to mercantile confrontations. There was a clear need for Law as a ëlanguage of interaction'."
\74\ See Benson, supra note \73\, at 647
("[D]uring this period, because of the need for uniform laws of commerce to facilitate international trade, ë . . . the basic concepts and institutions of modern Western mercantile law--lex mercatoria--were formed, and, even more important, it was then that mercantile law in the West first came to be viewed as an integrated, developing system, a body of law'. Virtually every aspect of commercial transactions in all of Europe (and in cases even outside Europe) were ëgoverned' by this body of law after the eleventh century. . . . This body of law was voluntarily produced, voluntarily adjudicated and voluntarily enforced. In fact, it had to be. There was no other potential source of such law, including state coercion.").
("The parallels [between the development of the Law Merchant and] cyberspace are strong. Many people interact frequently over networks, but not always with the same people each time so that advance contractual relations are not always practical. Commercial transactions will more and more take place in cyberspace, and more and more those transactions will cross national boundaries and implicate different bodies of law. Speedy resolution of disputes will be as desirable as it was in the Middle Ages! The means of an informal court system are in place in the form of on_line discussion groups and electronic mail. A ëLaw Cyberspace' co_existing with existing laws would be an eminently practical and efficient way of handling commerce in the networked world"); Post, supra note \60\, at par. 43 and n. 15.
\76\ This enforcement tool is not perfect -- any more than the tool of banishing merchants from the medieval trade fairs was perfect for the development of the Law Merchant. See Paul R. Milgrom, Douglass C. North, and Barry R. Weingast, the Role of Institutions in the Revival of Trade: The Law Merchant, Private Judges, and the Champagne Fairs, 2 Econ. & Pol. 1 (1990) (describing the use of banishment and other enforcement mechanisms prior to the rise of the state). Individuals intent on wrongdoing may be able to sneak back on the Net or into a particular online area with a new identity. But the enforcement tools used by legal authorities in the real world also have limits. We do not refrain from recognizing the sovereignty of our territorial governments just because they cannot fully control their physical borders or all of the actions of their citizens.
\77\ The social philosopher Michael Sandel has made
a similar point in writing of the need for new transnational
law-making institutions if the "loss of mastery
and the erosion of community that lie at the heart
of democracy's discontent" is to be alleviated:
"In a world where capital and goods, information
and images, pollution and people, flow across national
boundaries with unprecedented ease, politics must assume
transnational, even global, forms, if only to keep
up. Otherwise, economic power will go unchecked by
democratically sanctioned political power. . . . We
cannot hope to govern the global economy without transnational
political institutions . . . ."
Michael Sandel, America's Search for a New Public Philosophy,
ATLANTIC MONTHLY March 1996 at 72-73 (emphasis added).
See also infra, text at note \99\, for additional
parallels between our arguments and Sandel's.
\78\ Hilton v. Guyot, 115 U.S. 113, 163-64 (1995). See also Lauritzen v. Larsen, 345 U.S. 571, 582 (1953) ("International or maritime law . . . aims at stability and order through usages which considerations of comity, reciprocity and long-range interest have developed to define the domain which each nation will claim as its own."); Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985); see also The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972). Good general treatments of the comity doctrine can be found in Swanson, Comity, International Dispute Resolution Agreements, and the Supreme Court, 21 LAW & POLICY IN INT'L BUS. 333 (1990); Paul, Comity in International Law, 32 HARV. INT. L.J. 1 (1991); Yntema, The Comity Doctrine, 65 MICH. L. REV 9 (1966); James S. Campbell, NEW LAW FOR NEW INTERNATIONAL TRADE 5 (Dec. 3, 1993) (on file with the Stanford Law Review); Janis, AN INTRODUCTION TO INTERNATIONAL LAW 250 ff. (1988); Brilmayer, CONFLICT OF LAWS: FOUNDATIONS AND FUTURE DIRECTIONS 145-90 (1991).
\79\ Restatement (Third) of Foreign Relations Law of the United States ß 403(1) (1987).
\81\ Maier, Remarks, 84 PROC. AM. SOC. INT'L LAW 339, 339 (1990); id., at 340 (principle of comity informs the "interest-balancing" choice of law principles in the Restatement); Paul, supra note \78\, at 12 (comity arose out of "[t]he need for a more sophisticated system of conflicts . . . in connection with the emergence of the nation state and the rise of commerce that brought different nationalities into more frequent contact and conflict with one another"); id., at 45-48 (noting that although the relationship between the "classical doctrine of comity" and the Restatement's principle of "reasonableness" is uncertain, the former "retains a significant function in the Restatement"); id., at 54 (comity principle "mitigates the inherent tension between principles of territorial exclusivity and sovereign equality"); Cf. Campbell, supra note \78\, at 6 (The Supreme Court's comity jurisprudence "inquires, in cases involving international trade, what values facilitate that trade. Trading nations have a common interest in supporting these values, and therefore national agencies--courts, legislators, administrators--should seek to respect, and thereby strengthen, these values as they engage in the processes of law formation").
\82\ Cf. Gopnik, The Virtual Bishop, NEW YORKER March 18, 1996 at 63 ("ëOf course, the primitive Church was a kind of Internet itself, which was one of the reasons it was so difficult for the Roman Empire to combat it. The early Christians understood that what was most important was not to claim physical power in a physical place but to establish a network of believers--to be on line,'" quoting French Bishop Jacques Gaillot).
\83\ Perritt, supra note \9\, at 42. Cf. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 281-83 (1983) (discussing differences between different spheres of power and authority).
\84\ The idea of "delegation" is something of a fiction. But legal fictions have a way of becoming persuasive and, therefore, real. See, e.g., Lon L. Fuller, Legal Fictions, 55 (1967). Self-regulatory bodies evolve independently of the State and derive their authority from the sovereign only insofar as the sovereign, after the fact, claims and exercises a monopoly over the use of force.
\85\ See generally, Henry H. Perritt, Jr., Computer Crimes and Torts in the Global Information Infrastructure: Intermediaries and Jurisdiction (Oct. 12, 1995) (on file with the Stanford Law Review).
\86\ See Maher, supra note \62\ (noting the "arrogance" of the Federal Networking Council's position on this issue).
\87\ Cf. id. (noting that while other groups faced fees for new domain names, "[s]pecial arrangements are made for users of '.gov' and '.edu.'")
\88\ See id. (noting "[t]he .mil domain is excluded" from the jurisdiction of the private corporation that administers the registration of domain names).
\89\ See supra, note \20\.
\91\ See Jonathan Graubert, What's News: A Progressive Framework for Evaluating the International Debate Over the News, 77 Cal. L. Rev 629, 633 (1989) ("The guiding principle in international communications since World War II has been the U.S._inspired goal of a ëfree flow of information.' According to this principle, ë[f]reedom of information implies the right to gather, transmit and publish news anywhere and everywhere without fetters.'") (citing G.A. Res. 59 (I), 1(2), U.N. GAOR Resolutions at 95, U.N. Doc. A/64/Add. 1 (1947). The free_flow_of_information principle has been defined as a necessary part of freedom of opinion and expression. See Article 19 of the Universal Declaration of Human Rights, G.A. Res. 217(III)A, 3(1) U.N. GAOR Resolutions at 71, 74_75, U.N. Doc. A/810 (1948) (stating that freedom of expression includes "freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers").
\92\ Moreover, the right of individuals to participate in various online realms depends critically on their obtaining information about those realms. Insofar as any territorial government merely claims moral superiority of its laws and values, it is not well situated to oppose a free flow of information that might lead its citizens to disagree, for this would be the equivalent of defending ignorance as a necessary ingredient of preservation of the values espoused by the local state. This view is unlikely to persuade external rulemakers who do not share those values.
\93\ Listservers, for example, can be set up on any
network (or Internet) server by means of simple instructions
given to one of several widely-available software programs
(listproc or majordomo). A Usenet discussion group
in the "alt." hierarchy can be established
by sending a simple request to the "alt.config"
newsgroup. See sources cited supra, note \23\.
Cyberspace not only permits the effective delineation
of internal boundaries between different online spaces,
but it also allows for effective delineation of distinct
online roles within different spheres of activity and
as to which different rules apply. In the nonvirtual
world, we slip in and out of such roles frequently;
the rules applicable to the behavior of a single individual,
in a single territorial jurisdiction, may change as
he moves between different legally-significant persona
(acting as an employee, a member of a church, a parent,
or the officer of a corporation, for example). Cyberspace
may make the boundaries between these different roles
easier to maintain, insofar as explicit "tags"
-- distinct "signature files," or screen
names-- can relatively easily be attached to messages
originating from the author's different roles.
\94\ Post, supra note \60\, art. 3, at par. 7 (asserting that the individual network "organizations" will probably determine the substantive rule-making for Cyberspace); David R. Johnson and Kevin A. Marks, Mapping Electronic Data Communications onto Existing Legal Metaphors: Should We Let Our Conscience (and Our Contracts) Be Our Guide?, 38 Vill. L. Rev. 487, 489-89 (1993) (explaining that communication service providers, owners of disks carrying centralized databases, and people presiding over electronic discussion groups have the power to select applicable rules).
\95\ For illuminating discussions of the many parallels between biological evolution and social evolution in Cyberspace, see Kevin Kelly, Out of Control: The Law of Neo-Biological Civilization (1994); John Lienhard, Reflections on Information, Biology, and Community, 32 Hous. L. Rev. 303 (1995); Michael Schrage, Revolutionary Evolutionist, Wired (July 1995).
\96\ This geographic barrier merely permits divergence to occur; it does not guarantee it. Specification will only occur, for example, if the two divided subpopulations are subject to different selection pressures or at least one of them is small enough to accrue significant random changes in its gene pool ("genetic drift"). For good, non-technical descriptions of evolutionary theory, see Daniel C. Dennett, Darwin's Dangerous Idea: Evolution and the Meanings of Life (1995); John Maynard-Smith, Did Darwin Get it Right? Essays on Games, Sex, and Evolution (1989); John Maynard-Smith, On Evolution (1972); George C. Williams, Adaptation and Natural Selection: A Critique of Some Current Evolutionary Thought (1966).
\97\ To survive, rules must be passed on somehow, whether in the form of "case reports" or other inter-individual or inter-generational methods. See Richard Dawkins, The Selfish Gene (1989). General parallels between biological evolution and the evolution of legal rules are discussed in FRIEDRICH HAYEK, 1 LAW, LEGISLATION, AND LIBERTY at 44-49 (1973); FRIEDRICH HAYEK, THE CONSTITUTION OF LIBERTY, 56-61 (1960); see generally Tom W. Bell, Polycentric Law, 7 Humane Studies Rev. [ ] (available at http://osf1.gmu.edu/~ihs/w91issues.html).
\98\ Cyberspace, as M. Ethan Katsh has written, is a
"software world" where "code is the
Law." M. Ethan Katsh, Software Worlds and the
First Amendment: Virtual Doorkeepers in Cyberspace,
UNIV. OF CHIC. LEGAL FORUM (forthcoming), quoting WILLIAM
MITCHELL, CITY OF BITS (MIT Press, 1995).
"To a considerable extent, networks really are
what software allows them to be. The Internet is not
a network but a set of communications protocols. .
. . [T]he Internet is software. Similarly, the World
Wide Web is not anything tangible. It is client-server
software that permits machines linked on a network
to share and work with information on any of the connected
machines."
Id., at [7]. See also Post, supra note \60\, at par.
16 ("[N]etworks are not merely governed by substantive
rules of conduct, they have no existence apart from
such rules"). And software specifications can
be unforgiving (as anyone who has tried to send an
e-mail message to an incorrectly spelled network recipient
can attest):
Entry of messages into, and routing of messages across,
digitally-based electronic networks . . . are controlled
by more effective protocols [than generally govern
non-electronic communications networks in the "real
world"]: each network's technical specifications
(typically embodied in software or switching mechanisms)
constitute rules that precisely distinguish between
compliant and non-compliant messages. This boundary
[is not an] artificial construct because the rules
are effectively self-enforcing. To put the matter
simply, you can't ëalmost' be on the Georgetown
University LAN or America Online--you are either transmitting
LAN- or AOL-compliant messages or you are not."
Id., at par. 20 (emphasis added). Thus, individual
network communities can be configured, by means of
unique specifications of this kind, to bar all (or
some specified portion of) inter-network traffic with
relative ease.
\99\ Sandel, supra note \77\, at 73-4 (emphasis added)
\100\ Brilmayer, supra note \6\, at 5.
\101\ In Albert Hirschman's terms, they have a "voice" in the development of French law, at least to the extent that French law-making institutions represent and are affected by citizen participation. Albert O. Hirschman, Exit, Voice and Loyalty 106-19 (1970); cf. Richard A. Epstein, Exit Rights under Federalism, Law & Contemp. Probs., Winter 1992, at 147, 151-165 (discussing the ability of exit rights to constrain governmental power and the limitations of such rights).
\102\ "There has always been a strong fictional
element to using this notion of a social contract as
a rationale for a sovereign's legitimacy. When exactly
did you or I consent to be bound by the US Constitution?
At best, that consent can only be inferred indirectly,
from our continued presence within the US borders --
the love-it-or-leave-it, vote-with-your-feet theory
of political legitimacy. But by that token, is Saddam
Hussein's rule legitimate, as least as to those Iraqis
who have ëconsented' in this fashion? Have the
Zairois consented to Mobutu's rule? In the world of
atoms, we simply cannot ignore the fact that real movement
of real people is not always so easy, and that most
people can hardly be charged with having chosen the
jurisdiction in which they live or the laws that they
are made to obey. But in cyberspace, there is an infinite
amount of space, and movement between online communities
is entirely frictionless. Here, there really is the
opportunity to obtain consent to a social contract;
virtual communities can be established with their own
particular rule-sets, power to maintain a degree of
order and to banish wrongdoers can be lodged, or not,
in particular individuals or groups, and those who
find the rules oppressive or unfair may simply leave
and join another community (or start their own)."
Post, supra note \23\, at 33.
\103\ The ease with which individuals may move between
communities (or inhabit multiple communities simultaneous
through a fractionation of their own individual identities)
also implies that Cyberspace may provide conditions
necessary and sufficient for something more closely
resembling the optimal collective production of a particular
set of goods -- namely, "laws" -- than can
be achieved in the real world. Cyberspace may closely
approximate the idealized model for the allocation
of local goods and services set forth by Charles Tiebout,
see Charles Tiebout, A Pure Theory of Local Expenditures,
64 J. POL. ECON. 416 (1956), in which optimal allocation
of locally-produced public goods is provided by small
jurisdictions competing for mobile residents. The
Tiebout model of intergovernmental competition has
four components: (1) a perfectly elastic supply of
jurisdictions, (2) costless mobility of individuals
among jurisdictions, (3) full information about the
attributes of all jurisdictions, and (4) no interjurisdictional
externalities. See Robert P. Inman and Daniel L. Rubinfeld,
The Political Economy of Federalism, Working Paper
No. 94-15, Boalt Hall Program in Law and Economics
(1994), at 11-16, (reprinted in D. Mueller (ed.), Developments
in Public Choice, Cambridge Univ. Press 1995). (As
Inman and Rubinfeld demonstrate, a fifth assumption
of the Tiebout model--the provision of public goods
with a "congestible technology" such that
the per capita cost of providing each level of a public
good first decreases and then increases as more individuals
move into the jurisdiction--is not necessary for the
model. Id., at 13.) In a Tieboutian world,
. . . each locality provides a package of local public
goods consistent with the preferences of its residents
(consumer-voters). Residents whose preferences remain
unsatisfied by a particular locality's package of goods
and services would (costlessly) move. . . . Escape
from undesirable packages of goods and services is
feasible as a result of two explicit characteristics
of the Tiebout model: absence of externalities and
mobility of residents.
Gillette, In Partial Praise of Dillon's Rule, or, Can
Public Choice Theory Justify Local Government Law,
67 CHI-KENT L. REV. 959, 969 (1991). We suggest that
cyberspace may be a closer approximation to ideal Tieboutian
competition between rule-sets than exists in the nonvirtual
world, a consequence of (1) the low cost of establishing
an online "jurisdiction," see text at note
\72d\, (2) the ease of exit from online communities,
(3) the relative ease of acquiring information about
the practices of online communities, and (4) the greater
impermeability of the internal, software-mediated boundaries
between online communities in cyberspace, see supra
note \98\, which may mitigate (at least to some extent)
the problem of inter-community externalities.
\104\ The Net may need new meta-rules for transporting information across these borders. For example, the members of the LambdaMOO multi-user domain debated at length whether to permit the use of information obtained from the virtual discussion group out in the "real world." See Mnookin, supra note \69\, at 20-21. Various online systems have rules about copying or reposting materials from one online area to another. For example, the terms of service for Counsel Connect contains the following rules for acceptable copying:
[M]embers who submit material shall be deemed to (I) grant to . . . subscribers to the system a paid up, perpetual, world-wide irrevocable license to use, copy, and redistribute such materials and any portions thereof and any derivative works therefrom . . . Each member agrees, as a condition of such license, (I) not to remove identifying source information from verbatim copies of member-supplied materials . . . and (ii) not to reproduce portions thereof in any way that identifies the source but fails to describe accurately the nature and source of any modification, alteration thereto or selection therefrom . . . . B. Notwithstanding the licenses granted by members and information suppliers, subscribers . . . shall not engage in systematic, substantial and regular replication of materials supplied to the system by a commercial publisher . . . where the effect of such actions is to provide another person who is not an authorized subscriber to such materials with a substantial substitute for such a subscription.
Terms and Conditions for Use of Counsel Connect (on
file with the Stanford Law Review) America Online's
Terms of Service Agreement contain a somewhat similar
clause:
4. Rights and Responsibilities
(a) Content . . . [Members]
Acknowledge that (I) AOL contains information, software, photos, video, graphics, music, sounds and other material and services (collectively, "Content") . . . . AOL permits access to Content that is protected by copyrights, trademarks, and other proprietary (including intellectual property) rights. . . . [members'] use of Content shall be governed by applicable copyright and other intellectual property laws. . . . By submitting Content to and "Public Area" . . . [members] automatically grant . . . AOL Inc. the royalty free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content (in whole or part) worldwide . . . .
\105\ See Sandel, supra note \77\, at 74 ("Self-government today . . . requires a politics that plays itself out in a multiplicity of settings, from neighborhoods to nations to the world as a whole. Such a politics requires citizens who can abide the ambiguity associated with divided sovereignty, who can think and act as multiply situated selves."); see also, Sherry Turkle, Life on the Screen: Identity in the Age of the Internet (1995); Sherry Turkle, The Second Self: Computers and the Human Spirit 95 (1984). To be sure, sophisticated analysis even of traditional legal doctrines suggests that we appear before the law only in certain partial, conditional roles. Joseph Vining, Legal Identity: The Coming of Age of Public Law 139-69 (1978). But this partial and conditional nature of "persons" who hold rights and duties is more pronounced in Cyberspace.
\106\ See Chatterjee, supra note \53\, at 425 n.142 (noting that "[o]riginal copyright paradigms were created to protect only physical books").
\107\ Electronic information can be dispensed in any sized serving, ranging from a few words to an entire database. If we use the database as a whole as our measure, then any user's selection will be an insignificant portion. In contrast, if we tried to use the traditional boundaries of the books cover, the user cannot observe this standard; in some cases it is an entirely theoretical boundary, with respect to material only dispensed from the database. This case demonstrates again that the absence of physical borders setting off distinct "works" in Cyberspace undermines the utility of doctrines like copyright law that are based on the existence of such boundaries in the real world.
\108\ Whether the law should consider that interest to be a "property" right or a right on behalf of the "persona" in question remains in doubt.
Contact David Post by e-mail at Counsel Connect: david.post@counsel.com or contact David Johnson at: davidrj@cris.com.