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 balance1 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