BOSTON UNIVERSITY SCHOOL OF LAW WORKING PAPER SERIES. PUBLIC LAW LEGAL THEORY WORKING PAPER NO 01-21 THE COMMON LAW AND CYBERSPACE TAMAR FRANKEL This paper can be downloaded without charge at The Boston University School of Law Working Paper Series Index http://www.bu.edu/law/faculty/papers The Social Science Research Network Electronic Paper Collection http://papers.ssrn.com/abstract=292614
BOSTON UNIVERSITY SCHOOL OF LAW WORKING PAPER SERIES, PUBLIC LAW & LEGAL THEORY WORKING PAPER NO. 01-21 THE COMMON LAW AND CYBERSPACE TAMAR FRANKEL This paper can be downloaded without charge at: The Boston University School of Law Working Paper Series Index: http://www.bu.edu/law/faculty/papers The Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/abstract=292614
The Common Law and cyberspace Tamar Frankel The subject is about the common law under stress of change. The common law has continuously confronted stressful change. Internet conflicts raise the same value issues with which we are familiar.. The Internet environment poses unusual pressures on the common law system. It is a system that transcends boundaries and time as we never had before. By reducing significantly the cost of receiving and disseminating information the Internet has shifted benefits costs and disadvantages The internet touches almost all areas of life. To those who suggest that the common law has lost its vitality, Internet jurisprudence offers a powerful rebuttal. United States courts have demonstrated th viability and strength of the common law. Internet issues have also highlighted the common law's limitations, shown in part by the legislative initiatives in this area The questions are: First, are we witnessing the emergence of the "Law of the Internet or Cyberlaw?"I believe that we are not. But there are few exceptions, such as issues concerning domain names. Second, how do the courts address Internet issues? I suggest that usually there is nothing new in their approach. They resort to precedents, and use somewhat different choices of analogies. Courts may err in how they view the interne While the technical aspects of the system-the code and protocols-are identical in all respects, the impact of the Internet on various aspects of our lives may differ greatly. A code-based rule may bring unacceptable consequences that must later be corrected. The paper contains a number of stories to illustrate these propositions Third, are there cases demonstrating the common law's limitation? I believe there are These limitations appear, for example, in cases concerning domain names and Congress initiates legislation for a number of reasons. Among these reasons are the trademarks Fourth. under what conditions will Congress overrule the courts decisio courts decisions that have strayed away from the policies that power constituencies have agreed upon. Nonetheless, judicial decisions play a role in the legislation. They help narrow the issues that Congress will address and sometimes help to set the The sum and substance of this paper is in praise of common law and its interaction with legislation as an overall system of muddling through. Law is evolving piecemeal addressing particular conflicts, not al ways uniformly nor predictably Specificity with respect to select issues. generality to show overall direction and guide interpretations This kind of lawmaking is for the risk-averse -of which i am one. Piecemeal solutions reduce the risk of mistakes and the cost of correcting mistakes when they occur-as they are bound to occur. The price higher learning costs and fewer clear, bright-line and predictable laws
The Common Law and Cyberspace Tamar Frankel Abstract The subject is about the common law under stress of change. The common law has continuously confronted stressful change. Internet conflicts raise the same value issues with which we are familiar. . . The Internet environment poses unusual pressures on the common law system. It is a system that transcends boundaries and time as we never had before. By reducing significantly the cost of receiving and disseminating information the Internet has shifted benefits, costs, and disadvantages. The Internet touches almost all areas of life. To those who suggest that the common law has lost its vitality, Internet jurisprudence offers a powerful rebuttal. United States courts have demonstrated the viability and strength of the common law. Internet issues have also highlighted the common law’s limitations, shown in part by the legislative initiatives in this area. The questions are: First, are we witnessing the emergence of the “Law of the Internet” or “Cyberlaw?” I believe that we are not. But there are few exceptions, such as issues concerning domain names.. Second, how do the courts address Internet issues? I suggest that usually there is nothing new in their approach. They resort to precedents, and use somewhat different choices of analogies. Courts may err in how they view the Internet. While the technical aspects of the system – the code and protocols – are identical in all respects, the impact of the Internet on various aspects of our lives may differ greatly. A code-based rule may bring unacceptable consequences that must later be corrected. The paper contains a number of stories to illustrate these propositions. Third, are there cases demonstrating the common law’s limitation? I believe there are. These limitations appear, for example, in cases concerning domain names and trademarks. Fourth, under what conditions will Congress overrule the courts’ decisions? Congress initiates legislation for a number of reasons. Among these reasons are the courts’ decisions that have strayed away from the policies that power constituencies have agreed upon. Nonetheless, judicial decisions play a role in the legislation. They help narrow the issues that Congress will address and sometimes help to set the congressional agendas. The sum and substance of this paper is in praise of common law and its interaction with legislation as an overall system of “muddling through.” Law is evolving piecemeal, addressing particular conflicts, not always uniformly nor predictably. Specificity with respect to select issues. Generality to show overall direction and guide interpretations. This kind of lawmaking is for the risk-averse -- of which I am one. Piecemeal solutions reduce the risk of mistakes and the cost of correcting mistakes when they occur—as they are bound to occur. The price: higher learning costs and fewer clear, bright-line and predictable laws
C 2001 All rights reserved. No part of this paper may be reproduced or cited without the permission of the author DRAFT THE COMMON LAW AND CYBERSPACE Tamar frankel Me realize that attempting to apply established trademark law in the fast-developing world of the internet is somewhat like trying to board a moving bus. Judge Van Graafeiland in Bensusan Restaurant Corp v. King, 126 F3d 25, 27(2d Cir. 1997) INTRODUCTION My subject, the common law and cyberspace, may raise eyebrows. How are the two connected? I say that they are well connected The subject is about the common law under stress of change A system reveals its true strengths and weaknesses under stress common law has continuously confronted stressful change. Courts have centuries mediated among new and novel conflicting interests and values. This is their job Internet conflicts raise the same value issues with which we are familiar The criteria for good and evil have remained virtually unchanged, perhaps with the exception of the value of the Internet itself. There are hardly any new kinds of conflicts that could not have arisen but for the internet. It seems however that Professor of Law, Boston University School of Law. I am indebted to Dean Ronald Cass, and Professors Ward Farnsworth, Gary Lawson, and Michael Meurer, for the very helpful comments on this article. Many thanks to Basil Yanakakis, Esq. for the financial support in the preparation of this article. many thanks to Katherine heid and bill hecker for their valuable research Because domain names have acquired a very special position on the Internet, a somewhat new type of conflict has surfaced between the owners of domain and trademark maintaining Internet infrastructure requires unique names. No two persons or institutions can have the same name. In addition, name recognition has become far more important in Internet domain names colliding head-on with the rights of trademark holders. Technology enables competitors to divert customers to their own web sites by tagging on the names of others, raising the same issues with far more serious results. Ease of copying copyrighted materials has changed the balance
1 c. 2001 All rights reserved. No part of this paper may be reproduced or cited without the permission of the author. D R A F T THE COMMON LAW AND CYBERSPACE Tamar Frankel• “[W]e realize that attempting to apply established trademark law in the fast-developing world of the internet is somewhat like trying to board a moving bus.” Judge Van Graafeiland in Bensusan Restaurant Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997). INTRODUCTION My subject, the common law and cyberspace, may raise eyebrows. How are the two connected? I say that they are well connected. The subject is about the common law under stress of change. A system reveals its true strengths and weaknesses under stress. The common law has continuously confronted stressful change. Courts have for centuries mediated among new and novel conflicting interests and values. This is their job. Internet conflicts raise the same value issues with which we are familiar. The criteria for good and evil have remained virtually unchanged, perhaps with the exception of the value of the Internet itself. There are hardly any new kinds of conflicts that could not have arisen but for the Internet.1 It seems, however, that • Professor of Law, Boston University School of Law. I am indebted to Dean Ronald Cass, and Professors Ward Farnsworth, Gary Lawson, and Michael Meurer, for the very helpful comments on this article. Many thanks to Basil Yanakakis, Esq. for the financial support in the preparation of this article. Many thanks to Katherine Heid and Bill Hecker for their valuable research. 1 Because domain names have acquired a very special position on the Internet, a somewhat new type of conflict has surfaced between the owners of domain names and trademark owners. Maintaining Internet infrastructure requires unique names. No two persons or institutions can have the same name. In addition, name recognition has become far more important in Internet domain names colliding head-on with the rights of trademark holders. Technology enables competitors to divert customers to their own web sites by tagging on the names of others, raising the same issues with far more serious results. Ease of copying copyrighted materials has changed the balance
the Internet environment poses unusual pressures on the common law system and never experienced before. By reducing significantly the cost of receiving and a special challenge to the courts. Its new technology has offered a global outre disseminating information the internet has shifted benefits. costs and disadvantages Through the Internet we can conclude transactions more efficiently, and that is good, but our personal information is more easily accessible, forged and stolen. Knowledge and enriching materials are at anyone's fingertips, but so are hate speech and fraudulent securities offerings. The reach of web sites is global and this is good but that can subject everyone who disseminates information on the web to the blanket jurisdiction of courts every where, undermining the current limits on personal and subject matter jurisdiction. Further, cyber touching almost all areas of life. It is increasingly difficult to escape it. As it becomes more inhabited, those outside the space will lead the existence of exiles To those who suggest that the common law has lost its vitality, Internet jurisprudence offers a powerful rebuttal. United States courts have demonstrated the viability and strength of the common law. Internet issues have also highlighted the common law's limitations, shown in part by the legislative initiatives in this area. But the story does not end with legislation. The need for interpretation paves the way back to the courts, and on occasion ricochets back to the legislature. Internet cases demonstrate vividly not only how the common law works but also how the courts and the legislatures interact My talk will focus on the following questions First, are we witnessing the emergence of the Law of the Internet "or "Cyberlaw? "I believe that we are not. But there are few exceptions Second how do the courts address issues that involve the internet? l suggest that usually there is nothing new in their approach. They resort to precedents as they traditionally have, and use somewhat different choices of analogies, as they traditionally have Courts may err in how they view the Internet. While the technical aspects of the system-the code and protocols-are identical in all respects, the impact of the Internet on various aspects of our lives may differ greatly. A code-based rule may bri must later be corrected. I will tell a number of stories as examples of these propositions Third, are there cases demonstrating the common law's limitation? I believe there are. These limitations will be demonstrated by cases concerning domain names and trademarks between private and public spheres of intellectual property. It exposes copyright holders to far more losses than before. However, self-protecting contracts by copyright owners pits contract freedom and copyright entitlements against the public sphere of intellectual property and United States constitutional rig 2
2 the Internet environment poses unusual pressures on the common law system and a special challenge to the courts. Its new technology has offered a global outreach never experienced before. By reducing significantly the cost of receiving and disseminating information the Internet has shifted benefits, costs, and disadvantages. Through the Internet we can conclude transactions more efficiently, and that is good, but our personal information is more easily accessible, forged and stolen. Knowledge and enriching materials are at anyone’s fingertips, but so are hate speech and fraudulent securities offerings. The reach of web sites is global, and this is good, but that can subject everyone who disseminates information on the web to the blanket jurisdiction of courts everywhere, undermining the current limits on personal and subject matter jurisdiction. Further, cyberspace is touching almost all areas of life. It is increasingly difficult to escape it. As it becomes more inhabited, those outside the space will lead the existence of exiles. To those who suggest that the common law has lost its vitality, Internet jurisprudence offers a powerful rebuttal. United States courts have demonstrated the viability and strength of the common law. Internet issues have also highlighted the common law’s limitations, shown in part by the legislative initiatives in this area. But the story does not end with legislation. The need for interpretation paves the way back to the courts, and on occasion ricochets back to the legislature. Internet cases demonstrate vividly not only how the common law works, but also how the courts and the legislatures interact. My talk will focus on the following questions: First, are we witnessing the emergence of the “Law of the Internet” or “Cyberlaw?” I believe that we are not. But there are few exceptions. Second, how do the courts address issues that involve the Internet? I suggest that usually there is nothing new in their approach. They resort to precedents as they traditionally have, and use somewhat different choices of analogies, as they traditionally have. Courts may err in how they view the Internet. While the technical aspects of the system – the code and protocols – are identical in all respects, the impact of the Internet on various aspects of our lives may differ greatly. A code-based rule may bring unacceptable consequences that must later be corrected. I will tell a number of stories as examples of these propositions. Third, are there cases demonstrating the common law’s limitation? I believe there are. These limitations will be demonstrated by cases concerning domain names and trademarks. between private and public spheres of intellectual property. It exposes copyright holders to far more losses than before. However, self-protecting contracts by copyright owners pits contract freedom and copyright entitlements against the public sphere of intellectual property and United States constitutional rights
Fourth. under what conditions will Congress overrule the decisions? Congress initiates legislation for a number of reasons. Among these reasons are the courts' decisions that have strayed away from the policies that power constituencies have agreed upon. Nonetheless, judicial decisions play a ole in the legislation. They help narrow the issues that Congress will address and ometimes help to set the congressional agendas the law. Should the law be specific or general? And who should make the law? of The last two questions are age-old normative questions about the design of The sum and substance of my talk is in praise of common law and its interaction with legislation as an overall system of"muddling through. No specific guidelines are enunciated, and no general policies of law are declared B grandiose plans laced with minute details are laid out. No overall principles wit except to point the directions. Instead, the law is evolving piecemeal, addressing particular conflicts, not al ways uniformly nor predictably. Specificity with respect to select issues. Generality to show overall direction and guide interpretations Both the courts and the legislature make the law, each guided by its own institutional structure and domain. The movement of lawmaking among them is legislature. The legislature, tending to the general, affect the specificity of the interesting because the courts, tending to the specific affect the generality of th courts. i believe that each mutes the other 's movement to the extreme This kind of lawmaking is for the risk-averse --of which i am one Piecemeal solutions reduce the risk of mistakes and the cost of correcting mistakes when they occur-as they are bound to occur. To be sure, this method raises learning costs for the practitioners and consequently the cost for clients. But it reduces for clients the risk of a law that may seriously impede their operations long-term. I believe that, overall, the common law muddling through costs less and is safe To be sure, it would be nice to have clear, bright-line and predictable laws L, and many others, doubt whether that is possible. The second-best would be small retractable steps rather than a fully detailed map-the plan with capital P- that is more rigid. If all steps must fit, they lose the necessary flexibility to adjust to a fast-changing environment and law becomes a stranglehold if enforced and dead letter. if not enforced A. ARE WE WITNESSING THE EMERGENCE OF THE "LAW OF THE NTERNET? A University of Chicago Law School dean branded the classification of Internet law as the "law of the horse " Such a classification he said would produce a shallow understanding of law. It would cover the subject matter of a horse under the laws of contract, tort, crime, racing, efforts to collect prize Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996U CHI LEGAL F 207, 207
3 Fourth, under what conditions will Congress overrule the courts’ decisions? Congress initiates legislation for a number of reasons. Among these reasons are the courts’ decisions that have strayed away from the policies that power constituencies have agreed upon. Nonetheless, judicial decisions play a role in the legislation. They help narrow the issues that Congress will address and sometimes help to set the congressional agendas. The last two questions are age-old normative questions about the design of the law. Should the law be specific or general? And who should make the law? The sum and substance of my talk is in praise of common law and its interaction with legislation as an overall system of “muddling through.” No grandiose plans laced with minute details are laid out. No overall principles with specific guidelines are enunciated, and no general policies of law are declared except to point the directions. Instead, the law is evolving piecemeal, addressing particular conflicts, not always uniformly nor predictably. Specificity with respect to select issues. Generality to show overall direction and guide interpretations. Both the courts and the legislature make the law, each guided by its own institutional structure and domain. The movement of lawmaking among them is interesting because the courts, tending to the specific affect the generality of the legislature. The legislature, tending to the general, affect the specificity of the courts. I believe that each mutes the other’s movement to the extreme. This kind of lawmaking is for the risk-averse -- of which I am one. Piecemeal solutions reduce the risk of mistakes and the cost of correcting mistakes when they occur—as they are bound to occur. To be sure, this method raises learning costs for the practitioners and consequently the cost for clients. But it reduces for clients the risk of a law that may seriously impede their operations long-term. I believe that, overall, the common law muddling through costs less and is safer. To be sure, it would be nice to have clear, bright-line and predictable laws. I, and many others, doubt whether that is possible. The second-best would be small retractable steps rather than a fully detailed map—the plan with capital P— that is more rigid. If all steps must fit, they lose the necessary flexibility to adjust to a fast-changing environment, and law becomes a stranglehold if enforced, and a dead letter, if not enforced. A. ARE WE WITNESSING THE EMERGENCE OF THE “LAW OF THE INTERNET?” A University of Chicago Law School dean branded the classification of Internet law as the “law of the horse.” Such a classification, he said, would produce a shallow understanding of law.2 It would cover the subject matter of a horse under the laws of contract, tort, crime, racing, efforts to collect prize 2 Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 207
money, as well as cruelty to animals, food regulation, manufacturing of brushe and toupees(made of horsehair ) Instead, he suggested, we should look at olr u main historical categories and adjust them to the horse situation. Another commentator made a similar argument Nonetheless. the commentator wrote cyberspace does have a special place, citing William Blake To see a World in a grain of Sand And a heaven in a Wild Flo Hold Infinity in the palm of your hand And Eternity in an hour Whether Internet law will remain the grain of sand or grow to become a world of its own depends on our capacities for finding the materials and the way we remember and relate different contexts. Treatises on the legal problems concerning Telegraph and Trains have sprung up and disappeared as the general laws of torts and contracts and rate regulation have been adjusted to take into account these special situations. Statutes and their judicial gloss augmented common law solutions In contrast, securities regulation, the regulation of investment management, and antitrust law have become permanent categories of special ituations-the laws of certain horses. While they touch on fundamental areas and are composed of the common law and legislation, the materials are organized and compiled under their specific names. To avoid repetition those areas of the special laws leave out the"general categories" that can be regulated within those categories, such as usual tort, contract, and corporate law, and keeping those rules which adjust contract, tort, and corporate law to the particular context. For example, contract common law applies to the agreements between advisers and mutual funds. But in addition and superimposed on the law is section 15 of the ld.at207-08 Joseph A Sommer, Against Cyberlav, 15 BERKELEY TECH. L.J. 1145, 1147(2000)(Very few bodies of law are defined by their characteristic technologies. Tort law is not the law of the automobile.”) 5 Id. at 1231 The future may also depend on the extent to which the context, approach, institutional structures and common principles will underlie decisions concerning cy berspace and legislation relating to it. I owe these points to Professor Nicola Lugaresi, University of Bologna, Bologna, Italy, who expressed them to an Internet discussion group "Cyberprof on March 2, 2001(the common denominator of internet issues may also include common"presuppositions"e.g,"distanc interaction, architecture, geographic locus(Weinberg); control( Chichester); anonymity information tracking; changes in politics and institutions; and lowered costs(Swire); or, at a different level, socially [sic] constructions of space,, property and identity; "unbundling libertaniarism [sic], friendly or challenging( Boyle); regulation of information(Ku)) 7 One reason for the classification may have been the comprehensive statutory regulation.Another eason may be that the context is sufficiently unique to give rise to unique and cohesive jurisprudence and enforcement institutions. Putting them under the umbrella of" contract woul not have helped. Impersonal agreements among the parties through intermediaries reduced the parties face to face bargaining protections. Internal rules of syndicates and exchanges failed to maintain efficient operations and public trust
4 money,3 as well as cruelty to animals, food regulation, manufacturing of brushes and toupees (made of horsehair). Instead, he suggested, we should look at our main historical categories and adjust them to the horse situation. Another commentator made a similar argument.4 Nonetheless, the commentator wrote, cyberspace does have a special place, citing William Blake: “To see a World in a Grain of Sand And a Heaven in a Wild Flower, Hold Infinity in the palm of your hand And Eternity in an hour.”5 Whether Internet law will remain the grain of sand or grow to become a world of its own depends on our capacities for finding the materials and the way we remember and relate different contexts.6 Treatises on the legal problems concerning Telegraph and Trains have sprung up and disappeared as the general laws of torts and contracts and rate regulation have been adjusted to take into account these special situations. Statutes and their judicial gloss augmented common law solutions. In contrast, securities regulation, the regulation of investment management, and antitrust law have become permanent categories of special situations—the laws of certain horses.7 While they touch on fundamental areas, and are composed of the common law and legislation, the materials are organized and compiled under their specific names. To avoid repetition those areas of the special laws leave out the “general categories” that can be regulated within those categories, such as usual tort, contract, and corporate law, and keeping those rules which adjust contract, tort, and corporate law to the particular context. For example, contract common law applies to the agreements between advisers and mutual funds. But in addition and superimposed on the law is section 15 of the 3 Id. at 207-08. 4 Joseph A. Sommer, Against Cyberlaw, 15 BERKELEY TECH. L.J. 1145, 1147 (2000) (“Very few bodies of law are defined by their characteristic technologies. Tort law is not ‘the law of the automobile.’”). 5 Id. at 1231. 6 The future may also depend on the extent to which the context, approach, institutional structures and common principles will underlie decisions concerning cyberspace and legislation relating to it. I owe these points to Professor Nicola Lugaresi, University of Bologna, Bologna, Italy, who expressed them to an Internet discussion group “Cyberprof” on March 2, 2001 (the common denominator of internet issues may also include common “presuppositions” e.g., “distance, interaction, architecture, geographic locus (Weinberg); control (Chichester); anonymity; information tracking; changes in politics and institutions; and lowered costs (Swire); or, at a different level, socially [sic] constructions of space,; property and identity; “unbundling”; libertaniarism [sic], friendly or challenging (Boyle); regulation of information (Ku)”). 7 One reason for the classification may have been the comprehensive statutory regulation. Another reason may be that the context is sufficiently unique to give rise to unique and cohesive jurisprudence and enforcement institutions. Putting them under the umbrella of “contract” would not have helped. Impersonal agreements among the parties through intermediaries reduced the parties face to face bargaining protections. Internal rules of syndicates and exchanges failed to maintain efficient operations and public trust
Investment Company Act of 1940, which imposes rules that apply only to such contracts Cyberlaw may not be one of these specialized categories because it touches many fundamental categories of law. Perhaps what will develop shallow, but important, generalized cyberlaw containing considerations, approaches, and ways of analysis-a new type of conceptual generalization composed of accepted interpretative and adjusting rules that apply to all areas the law when they relate to the Internet. My main point here is that by noting delightful new playground for old games, g oo crete area of law. At least not now. But this does not mean that cyberspace and law is an unnatural combination, or is unworthy of study. Quite the contrary: Cyberspace is a B. HOW DO COURTS ADDRESS ISSUES THAT INVOLVE THE NTERNET? 1. Following the markets and parties'intent A review of the decisions uncovers few innovations or surprises. Some courts resort to policies more than others, implicitly or explicitly. There are judges who look to the“ markets” and the parties'intent” for guidance. As one new environment but from lack of clarity of the general principles in t om the commentator argued, the problems regarding the Internet do not stem fro traditional particular area. Since no one knows how to prescribe better general laws, he suggests that courts "make rules clear; create property rights where now there are none, and facilitate the formation of bargaining institutions. Then let the world of cyberspace evolve as it will, and enjoy the benefits I am skeptical. This wonderfully simple guide is not easy to follow even if the contracts are explicit. It becomes speculative when the contracts are implied While the courts should pay attention to agreements among private parties the agreements are less clear than the laws some of them are not even rendered in writing, the language of signs often supplements such agreements, but the signs isappear or are misinterpreted. I will agree that the law is unclear. I doubt whether contracts are the general guides for the lay Besides. not all contract-based rules should be followed some contracts may conflict with legislative agendas and overall social good. Most importantly common law courts follow precedents and statutory rules of interpretation, not all of which are contract-based. Even policy-contract-oriented judges seek precedents to support their theories. I therefore view common law precedents or statutes and 815USC.§80a-5(1994) ler, supra note 4, at 12 Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 21
5 Investment Company Act of 1940, which imposes rules that apply only to such contracts.8 Cyberlaw may not be one of these specialized categories because it touches many fundamental categories of law. Perhaps what will develop is a shallow, but important, generalized cyberlaw containing considerations, approaches, and ways of analysis -- a new type of conceptual generalization composed of accepted interpretative and adjusting rules that apply to all areas of the law when they relate to the Internet. My main point here is that by noting Internet law I am not suggesting that it forms a discrete area of law. At least not now. “But this does not mean that cyberspace and law is an unnatural combination, or is unworthy of study. Quite the contrary: Cyberspace is a delightful new playground for old games.”9 B. HOW DO COURTS ADDRESS ISSUES THAT INVOLVE THE INTERNET? 1.Following the markets and parties’ intent A review of the decisions uncovers few innovations or surprises. Some courts resort to policies more than others, implicitly or explicitly. There are judges who look to the “markets” and the “parties’ intent” for guidance. As one commentator argued, the problems regarding the Internet do not stem from the new environment but from lack of clarity of the general principles in the traditional particular area. Since no one knows how to prescribe better general laws, he suggests that courts “make rules clear; create property rights where now there are none; and facilitate the formation of bargaining institutions. Then let the world of cyberspace evolve as it will, and enjoy the benefits.” 10 I am skeptical. This wonderfully simple guide is not easy to follow even if the contracts are explicit. It becomes speculative when the contracts are implied. While the courts should pay attention to agreements among private parties the agreements are less clear than the laws, some of them are not even rendered in writing, the language of signs often supplements such agreements, but the signs disappear or are misinterpreted. I will agree that the law is unclear. I doubt whether contracts are the general guides for the law. Besides, not all contract-based rules should be followed; some contracts may conflict with legislative agendas and overall social good. Most importantly, common law courts follow precedents and statutory rules of interpretation, not all of which are contract-based. Even policy-contract-oriented judges seek precedents to support their theories. I therefore view common law precedents or statutes and 8 15 U.S.C. § 80a-15 (1994). 9 Sommer, supra note 4, at 1231. 10 Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 216
their judicial gloss as the source of law addressing issues concerning cyberspace 2.Analogies The courts' choices of precedents depend on what they analogize to They may analogize to the facts of the cases, or to the applicable legal principles These approaches are demonstrated in the case of the freelancers copyrights Freelance authors sell their writings to publishers but retain the copyright materials may republish the materials under a"privilege"to "reproduce"and l ed to these pieces. Under copyright law, publishers who have purchased copyrigh distribute" the writings as part of a larger whole. For example, publishers may reproduce their periodicals, which include the copyrighted freelancer materials When electronic databases appeared on the scene, courts have held that the ublishers' privilege does not apply to electronic republication In Tasini v. New York Times Co. the defendant publisher reproduced freelancers' pieces in NEXIS--a very large electronic database--and in a CD- ROM. The question was whether these computer versions were privileged. The District Court held that they were so privileged. The Second Circuit reversed, 4 and the Supreme Court affirmed the Circuit Courts decision. The privilege does not cover these new circumstances The interesting point, for our purpose, is the courts use of analogies. The District Court sought an analogy to legal principles. It first determined whether the database constituted an infringement of the freelancers copyrights, and then whether the database was privileged as a"revision"of the copyrighted materials Since the distinguishing features of the original periodicals were retained in the database the court considered whether these aspects were preserved electronically and held that the selected articles were included in the periodicals were substantially similar" to the electronic version. Infringement was established Then, the court turned to the privilege, and held that the electronic reproduction was a"revision "to which the publishers privilege applied. The question, said the court, was"whether the electronic reproductions retain enough of defendant periodicals to be recognizable as versions of those periodicals. "Noting that the NEXIS database retained the publishers' original selection of articles, the court I agree that these sources are affected by and may incorporate the parties'intentions express or See Wendy J. Gordon, Fine-Tuning Tasini: Privileges of Electronic Distribution and Reproduction, 66 BROOKLYN L REV. 473, 477-80(2000) Tasini v N.Y. Times Co., 972 F Supp. 804(SD N.Y. 1997), rev d, 206 F 3d 161(2dCir. 999,ad, 4 Tasini v N.Y. Times Co., 206 F 3d 161(2d Cir. 1999), aff'd, 121 S Ct 2381(2001) N.Y. Times Co v. Tasini, 121 S Ct 2381 (2001) Id at 82 72 F Supp. at 821-25. 6
6 their judicial gloss as the source of law addressing issues concerning cyberspace.11 2.Analogies The courts’ choices of precedents depend on what they analogize to. They may analogize to the facts of the cases, or to the applicable legal principles. These approaches are demonstrated in the case of the freelancers’ copyrights. Freelance authors sell their writings to publishers but retain the copyright to these pieces. Under copyright law, publishers who have purchased copyrighted materials may republish the materials under a “privilege” to “reproduce” and to “distribute” the writings “as part of a larger whole.” For example, publishers may reproduce their periodicals, which include the copyrighted freelancer materials.12 When electronic databases appeared on the scene, courts have held that the publishers’ privilege does not apply to electronic republication. In Tasini v. New York Times Co. the defendant publisher reproduced freelancers’ pieces in NEXIS -- a very large electronic database -- and in a CDROM. The question was whether these computer versions were privileged. The District Court held that they were so privileged.13 The Second Circuit reversed,14 and the Supreme Court affirmed the Circuit Court’s decision.15 The privilege does not cover these new circumstances. The interesting point, for our purpose, is the courts’ use of analogies. The District Court sought an analogy to legal principles. It first determined whether the database constituted an infringement of the freelancers’ copyrights, and then whether the database was privileged as a “revision” of the copyrighted materials. Since the distinguishing features of the original periodicals were retained in the database the court considered whether these aspects were preserved electronically and held that the selected articles were included in the periodicals were “substantially similar”16 to the electronic version.17 Infringement was established. Then, the court turned to the privilege, and held that the electronic reproduction was a “revision” to which the publishers’ privilege applied. The question, said the court, was “whether the electronic reproductions retain enough of defendants’ periodicals to be recognizable as versions of those periodicals.” Noting that the NEXIS database retained the publishers’ original selection of articles, the court 11 I agree that these sources are affected by and may incorporate the parties’ intentions express or implied. 12 See Wendy J. Gordon, Fine-Tuning Tasini: Privileges of Electronic Distribution and Reproduction, 66 BROOKLYN L. REV. 473, 477-80 (2000). 13 Tasini v. N.Y. Times Co., 972 F. Supp. 804 (S.D.N.Y. 1997), rev’d, 206 F.3d 161 (2d Cir. 1999), aff’d, 121 S. Ct. 2381 (2001). 14 Tasini v. N.Y. Times Co., 206 F.3d 161 (2d Cir. 1999), aff’d, 121 S. Ct. 2381 (2001). 15 N.Y. Times Co. v. Tasini, 121 S. Ct. 2381 (2001). 16 Id. at 822. 17 972 F. Supp. at 821-25
viewed the database as a revision, within the privilege, and again supported its holding by analogizing to compilation infringement cases The Second Circuit chose another analogy route It focused on"whether one or more of the pertinent electronic databases may be considered a ' revision of the individual periodical issues from which the articles were taken (emphasis added). That is: whether the periodicals were revised rather than the individual pieces. The court compared revision in an electronic form with revision in a paper form. It noted that some of the periodicals content and arrangement was lost in NEXIS. Therefore, the databases "can hardly be deemed a revision of every periodical that it contains. 2 There is a difference between periodicals that are not easily decomposed, and an electronic database in which the periodicals become available in decomposed parts. In addition, databases make it far easier for users to download the works as one commentator noted the databases constituted a prohibited"distribution as well Similarly, contract law in the Internet context does not require innovation The following, for example, is the case of the contract that the customers did not have a chance to read. Netscape, an Internet Service Provider(IsP), has been offering customers free software making it easier to download materials from Internet web sites. The customers alleged that Netscape invaded the customers privacy by using the software to monitor the materials that customers would download, without the customers'knowledge Netscape sought to remove the case to arbitration, on the basis of the license agreement covering the software That agreement contained an arbitration clause The question was whether the license agreement was binding on the customers. The first page of the free software offer did not refer to a contract, and the customer could download the software without scrolling down the page. Had the customer scrolled down the page, however, he would have received a message to click on a hypertext link for the license agreement. The link would have led to a web page stating that the customer must read and agree to the license agreement before downloading the software, and containing a hypertext link to the license agreement. The agreement stated that by downloading the software the customer was bound by the license contract The court held that the customers were not bound by this contract. Too little information was revealed to which customers could agree before they downloaded the software The"teasers" were insufficient to constitute consent to the terms of the contract that appeared only after an additional four-stage search. 18d.at824-25 19at825 Tasini v N.Y. Times Co., 206 F 3d 161, 195(2d. Cir. 1999),affd, 121S. Ct. 2381(2001) 2 1d. at 169 221d. at 168(relying also on analysis of statutory framework) 23Gordon, supra note 12, at 489. In fact, the Court declined to use the"substantial similarity"test of factual compilation cases. 206 F 3d at 169 n 4
7 viewed the database as a revision, within the privilege,18 and again supported its holding by analogizing to compilation infringement cases.19 The Second Circuit chose another analogy route. It focused on“whether one or more of the pertinent electronic databases may be considered a ‘revision’ of the individual periodical issues from which the articles were taken.”20 (emphasis added). That is: whether the periodicals were revised rather than the individual pieces. The court compared revision in an electronic form with revision in a paper form. It noted that some of the periodicals’ content and arrangement was lost in NEXIS.21 Therefore, the databases “can hardly be deemed a ‘revision’ of every periodical that it contains.”22 There is a difference between periodicals that are not easily decomposed, and an electronic database in which the periodicals become available in decomposed parts. In addition, databases make it far easier for users to download the works. As one commentator noted, the databases constituted a prohibited “distribution” as well.23 Similarly, contract law in the Internet context does not require innovation. The following, for example, is the case of the contract that the customers did not have a chance to read. Netscape, an Internet Service Provider (ISP), has been offering customers free software making it easier to download materials from Internet web sites. The customers alleged that Netscape invaded the customers’ privacy by using the software to monitor the materials that customers would download, without the customers’ knowledge. Netscape sought to remove the case to arbitration, on the basis of the license agreement covering the software. That agreement contained an arbitration clause. The question was whether the license agreement was binding on the customers. The first page of the free software offer did not refer to a contract, and the customer could download the software without scrolling down the page. Had the customer scrolled down the page, however, he would have received a message to click on a hypertext link for the license agreement. The link would have led to a web page stating that the customer must read and agree to the license agreement before downloading the software, and containing a hypertext link to the license agreement. The agreement stated that by downloading the software the customer was bound by the license contract. The court held that the customers were not bound by this contract. Too little information was revealed to which customers could agree before they downloaded the software. The “teasers” were insufficient to constitute consent to the terms of the contract that appeared only after an additional four-stage search. 18 Id. at 824-25. 19 Id. at 825. 20 Tasini v. N.Y. Times Co., 206 F.3d 161, 195 (2d. Cir. 1999), aff’d, 121 S. Ct. 2381 (2001). 21 Id. at 169. 22 Id. at 168 (relying also on analysis of statutory framework). 23 Gordon, supra note 12, at 489. In fact, the Court declined to use the “substantial similarity” test of factual compilation cases. 206 F.3d at 169 n.4
In this case too the court resorted to well-known and accepted contract principles of informed consent. and noted cases in which contracts on the internet have been recognized when notice of its existence and location of its full terms were reasonably available 24 In all these cases no groundbreaking new rules have developed. The courts resorted to precedents and usually analogized the facts of the precedents with the facts in the internet context a danger in analogies lies when facts in cyberspace are analyzed inappropriately. One commentator analogizes the Internet to the paintings of the French artist Georges Seurat, showing the streets of Paris by thousands of color points Closely, the points look the same, like the components of a code. At a of the code. When the courts compare the close view of the Internet the code osed distance, they form the image of Paris streets, like a particular software compe they design an overbroad rule that does not take into account the effect of the rule on the more relevant, broader impact. For example encryption was held to be brech, protected by the First Amendment. Another case could be interpreted to that every computer program with certain characteristics is patentable, without exceptions, offering a broader protection than the protections afforded inventions in real space. That approach may be explained by the close view the courts take of code as similar to Seurat's points. Whether this criticism is warranted is open to debate. What is important is the need for caution and the requirement that courts view the Internets impact as well as its functional aspects C THE LIMIITS OF THE COMMON LAW ENTER CONGRESS 1. Congress overrules strict interpretation The courts in the United States have taken different attitudes towards precedents. Some courts tend to address novel issues and even overrule precedents more readily than others. Others invite Congress to make the changes In the following cases Congress overruled decisions in which the courts have strictly followed precedents on fairly narrow points In United States v LaMacchia. a student at Massachusetts Institute of Technology in Cambridge"set up an electronic bulletin board" that allowed people to uploadpopular software applications . and computer games He transferred the applications to a second address where people with a password Specht v Netscape Communications Corp 150 F Supp 2d 585 (S.D.N.Y. 2001) Orin S Kerr, Are We Overprotecting Code? Thoughts on First-Generation Internet Law, 57 WASH. LEE L REv. 1287, 1287-88, 1293(2000)(citing Junger v. Daley, 209 F 3d 481(6Cir 2000) 26a.at1290-91 27lat1294-96 2871F.Sup.535(D.Mass.1994 8
8 In this case too the court resorted to well-known and accepted contract principles of informed consent, and noted cases in which contracts on the Internet have been recognized when notice of its existence and location of its full terms were reasonably available.24 In all these cases no groundbreaking new rules have developed. The courts resorted to precedents and usually analogized the facts of the precedents with the facts in the Internet context. A danger in analogies lies when facts in cyberspace are analyzed inappropriately. One commentator analogizes the Internet to the paintings of the French artist Georges Seurat, showing the streets of Paris by thousands of color points. Closely, the points look the same, like the components of a code. At a distance, they form the image of Paris streets, like a particular software composed of the code. When the courts compare the close view of the Internet, the code, they design an overbroad rule that does not take into account the effect of the rule on the more relevant, broader impact.25 For example encryption was held to be speech, protected by the First Amendment.26 Another case could be interpreted to hold that every computer program with certain characteristics is patentable, without exceptions,27 offering a broader protection than the protections afforded inventions in real space. That approach may be explained by the close view the courts take of code as similar to Seurat’s points. Whether this criticism is warranted is open to debate. What is important is the need for caution and the requirement that courts view the Internet’s impact as well as its functional aspects. C. THE LIMITS OF THE COMMON LAW. ENTER CONGRESS 1.Congress overrules strict interpretation The courts in the United States have taken different attitudes towards precedents. Some courts tend to address novel issues and even overrule precedents more readily than others. Others invite Congress to make the changes. In the following cases Congress overruled decisions in which the courts have strictly followed precedents on fairly narrow points. In United States v. LaMacchia, 28 a student at Massachusetts Institute of Technology in Cambridge “set up an electronic bulletin board” that allowed people to upload “popular software applications . . . and computer games . . . .” He transferred the applications to a second address where people with a password 24 Specht v. Netscape Communications Corp. 150 F. Supp. 2d 585 (S.D.N.Y. 2001). 25 Orin S. Kerr, Are We Overprotecting Code? Thoughts on First-Generation Internet Law, 57 WASH. & LEE L. REV. 1287, 1287-88, 1293 (2000) (citing Junger v. Daley, 209 F.3d 481 (6th Cir. 2000)). 26 Id. at 1290-91. 27 Id. at 1294-96. 28 871 F. Supp. 535 (D. Mass. 1994)
