43 Wayne Law Review 155 (1997)
David G. Post(1)
By way of illustration, consider the various forms of copying undertaken by Joanna Zakalik's fictional Maurice.(5) How are we to know and perhaps more importantly, how is Maurice to know whether or not those actions are in any sense wrongful? It may seem obvious that Maurice is guilty of any number of acts of copyright infringement, and that the only truly difficult questions remaining concern the way that the authors' intellectual property rights can be enforced against him. But what is the definition of "infringement" against which we are to measure Maurice's conduct? Whose copyright law applies here?
As it happens, existing international copyright law doctrine provides no ready answer to this question in cyberspace, as has been well described elsewhere.(6) The principle of territoriality governs private international copyright law; each sovereign state provides for its own regime of protection for works of authorship.(7) The Berne Convention for the Protection of Literary and Artistic Works, the leading international treaty governing copyright, reinforces this territorial principle. It declares that "domestic law" governs questions regarding the protection accorded to works in their "country of origin";(8) elsewhere (i.e., in "countries . . . other than the country of origin") the rights of authors are governed by "their respective laws" (i.e. the domestic laws of those other countries), subject to the rule of national treatment the requirement that national law may discriminate against foreign works from member countries.(9) Thus, Berne requires Maurice to conform his behavior to the copyright laws of all jursidictions simultaneously, inasmuch as his works are being made available in all jurisdictions simultaneously and are thereby subject to the "respective laws" of each.
The true conundrum facing Maurice, however, has not been produced by the drafters of Berne, but by the architects of cyberspace itself; my contention is that in the special circumstances of cyberspace, no choice of law rule no algorithm we can apply to the set of potentially applicable rule-setsdefined in geographic terms can provide Maurice with a sensible answer to his question regarding the nature of the obligations under which he acts. We face more than the task of clarifying Berne's choice of law to take the transborder characteristics of Internet transactions into account, for the Net more radically subverts our ordinary means of answering this question. Cyberspace is more fundamentally intractable in regard to determining the applicable legal constraints on this activity: the geographical borders lines separating physical spaces that define law-making power in the ordinary sense are not, and cannot be made, operative on the global network.(10)
Law-making sovereignty itself internationally recognized "statehood" is defined, at bottom, by control over a physical territory,(11) and a sovereign's jurisdiction to prescribe rules of conduct necessarily extends only to events and transactions that bear some relationship to that physical territory over which it has control.(12) In the realm of conflict of laws, although a stringent physicality requirement embodied in the rules of lex locus contractu and lex locus delicti has been abandoned as transborder events and transactions have become commonplace during the twentieth century, in favor of a more flexible "interest analysis" to determine whether, say, French law is to be applied to transactions or events that may take place outside French borders,(13) the core requirement that there be some nexus between a physical place and the persons or transactions at issue remains.(14)
Cyberspace, however, does not merely weaken the significance of physical location, it destroys it in three distinct senses.(15)First,events in cyberspace take place "everywhere if anywhere, and hence no place in particular;"(16) they do not cross geographical boundaries (in the way that, say, environmental pollution crosses geographical boundaries), they ignore the existence of the boundaries altogether. The cost and speed of message transmission from one point on the net to any other is entirely independent of physical location: messages can be transmitted between physical locations without any distance- or location-based degradation, decay, or delay. There are no physical cues or barriers that might otherwise keep geographically remote places and people separate from one another, no territorially based boundaries at all. A message posted to an Internet server in, say, Japan arrives no more quickly at another Internet server in Japan than it does at a server located anywhere on the globe, it looks no different when retrieved from a server down the street than from a server across the Pacific, and it is, simultaneously and instantaneously, accessible to persons accessing the Internet from anywhere. Second, while we may be able to sustain a useful fiction that, in some sense at least, the location of the physical server on Japanese soil gives Japan some special interest in the content of the communication posted there, many events and transactions have no recognizable tie at all to physical places but take place only on the network itself, which, by its very nature, is not a localizable phenomenon. Usenet discussion groups, for example, consist of continuously changing collections of messages that are routed from one network to another across the global net, with no centralized location at all. They exist, in effect, everywhere, nowhere in particular, and only on the Net.(17) And third, the net enables simultaneous transactions between large numbers of people who do not and cannot know the physical location of the other party. One can meaningfully talk of the "location" of events and transactions in cyberspace, but only in reference to a virtual space consisting of the "addresses" of the machines between which messages and information are routed; this machine addressing system is entirely independent of the physical address or location of those machines.(18)
A World Wide Web server in Frankfurt, Germany is thus truly indistinguishable from a server in Frankfort, Kentucky: it is as incoherent to speak of events in cyberspace that "wholly or in substantial part, take place within [a State's] territory,"(19) as it is indeterminate to talk of conduct that "has or is intended to have substantial effect within [a State's] territory."(20) The effects of cyberspace transactions are felt everywhere, simultaneously and equally in all corners of the global network. These are wholly arbitrary bases on which to base a choice of law rule for Maurice's conduct.(21)
This is not a system designed for the convenience of lawyers. Existing legal and political doctrine and institutions may well be inadequate for the task of crafting effective and legitimate rules for this new environment. But the basic problem of social life remains: how can people order their collective affairs to achieve results that they cannot accomplish on their own? Cyberspace may herald what Walter Wriston called, some years back, the "twilight of sovereignty,"(22) quite possibly the final days of a governance system relying on individual sovereign states as primary law-making authority, a system that has served us, often for better and sometimes for worse, for the last half millennium. This is an exciting, and a slightly terrifying prospect, a radical transformation of the legal landscape to which we have all become accustomed. What will take its place?
There are, appropriately enough given the binary nature of the information
traveling in cyberspace, two radically different processes through which
order can emerge in this environment. I have, only somewhat facetiously,
referred elsewhere to them by name: Hamilton and Jefferson.(23)
Hamilton involves an increasing degree of centralization of control, achieved
by means of increasing international coordination among existing sovereigns,
through multi-lateral treaties and/or the creation of new international
governing bodies along the lines of the World Trade Organization, the World
Intellectual Property Organization, and the like.(24)
If choice of law is hopelessly confused, in other words, we can eliminate
the choice by imposing a single, uniform legal standard world-wide.(25)
Jefferson invokes a radical decentralization of law-making, the development
of processes that do not impose order on the electronic world but
through which order can emerge.(26) Some
of these decentralized processes will look familiar to us as a kind of
"electronic federalism."(27) In this model,
individual network access providers, rather than territorially-based states,
become the essential units of governance; users in effect delegate the
task of rule-making to them confer sovereignty on them and
choose among them according to their own individual views of the constituent
elements of an ordered society. The "law of the Internet" thus emerges,
not from the decision of some higher authority, but as the aggregate of
the choices made by individual system operators about what rules to impose,
and by individual users about which online communities to join. Mobility
our ability to move unhindered into and out of these individual networks
with their distinct rule-sets is a powerful guarantee that the resulting
distribution of rules is a just one; indeed, our very conception of what
constitutes justice may change as we observe the kind of law that emerges
from uncoerced individual choice.(28)
To illustrate, and to bring this discussion back down to earth, consider the facts of a case now making its way through the federal court system coincidentally, in the same court that recently decided ACLU v. Reno, the case striking down the Communications Decency Act on First Amendment grounds.(29) This other case, Cyber Promotions, Inc. v. America Online,(30) is a simple and rather mundane commercial dispute, with nothing, on the surface at least, as grand as the issues raised in ACLU v. Reno. Yet, I think it may ultimately have far greater implications for the question of law and order on this new electronic frontier.(31)
The defendant, America Online, is, of course, a large commercial online service provider. Like most online service providers, America Online offers a service to its subscribers the ability to receive, and to send, electronic mail, not merely to other America Online subscribers but over the Internet a "gateway" between the closed America Online system and the open, worldwide Internet. Cyber Promotions, Inc., the plaintiff, is a bulk e-mail operation, offering businesses the opportunity to send electronic mail containing commercial solicitations to millions of recipients at a minuscule fraction of the cost of such promotional activities in the real world.
America Online claims that many of its subscribers have complained about receiving this "virtual junk mail" or "spam," as it is sometimes called in online parlance. In response, it configured its Internet gateway to reject any and all electronic mail that arrives bearing a Cyber Promotions return address. Cyber Promotions cried foul (and filed suit), claiming that America Online's actions improperly interfere with its "freedom of speech," its ability to engage in commercial activity on the net.
In a stunningly wrongheaded move, the trial court initially issued a preliminary ruling siding with Cyber Promotions, ordering America Online to open up its mail gateway to incoming mail from the Cyber Promotions site, at least pending a full trial.(32) Wrongheaded because what America Online has done here is precisely what Internet governance requires. It has, in effect, promulgated a rule about junk e-mail. Those who believe it is a good rule can remain as members of the America Online community, and those who believe it is otherwise (including those who believe it is infringing some right of entities like Cyber Promotion) can move elsewhere, to any one of the hundreds of other providers of Internet mail service, each of whom may define "junk mail" in very different ways (or, of course, not at all). We can be reasonably confident that the rule imposed by America Online is an expression of their subscribers' collective desires to order their electronic world in a certain way, because America Online's ability to "impose" rules contrary to that collective will is severely constrained by the ability of its subscribers to move somewhere else to "vote with their electrons."
This is a kind of market for law and, like all markets, it is a powerful information-processing device.(33) We could engage in an abstract argument within some centralized Hamiltonian process about whether there exists some 'right' to send unsolicited bulk e-mail, and perhaps impose some uniform rule on the global network regarding this practice. But even aside from the difficulty of reaching consensus among the sovereign governments of the world in regard to the scope of that right, consider the possibility that the decentralized Jeffersonian market for rules is a better indicator of the views of the participants in these transactions on this question than is a vote in, say, the International Telecommunications Union, that the process that records the aggregate of uncoerced voluntary choices among communities with different rule-sets is a superior device for answering the question "what is the 'best' rule?" It is true, of course, that if many Internet service providers implement a rule similar to America Online's, and if those service providers flourish and attract many subscribers, the activities of entities like Cyber Promotions will be drastically curtailed. But if many Internet service providers implement a similar rule, and if those service providers flourish and attract many subscribers, who would venture to say who has the right to say that that isn't the best rule to deal with this problem?
Decentralized systems are capable of generating remarkable degrees of coordination think, most obviously, of biological systems, which evolve without any centralized decision-making at all.(34) Or think of the Internet itself, which is nothing if not a truly remarkable triumph of international coordination and cooperation, a complex adaptive system that has achieved a previously unimaginable degree of inter-connection without reliance on top down, hierarchical control. No sovereign authority with the power to compel obedience among its subjects promulgated that law, no treaty decreed that a specific set of such standards must be used in order to link each of the diverse individual networks together into a single global web.
Governance systems are no exception to this rule, and decentralized mechanisms for governance Jeffersonian mechanisms can likewise produce a substantial degree of order and harmony.(35) The Jeffersonian mode of law-making has, at its heart, the sovereignty of the individual, the recognition that individual choice consent of the governed is the firmest basis on which to build political order. The extent to which it is allowed to flourish on the global network in the coming years is the central question we face as we engage in our collective conversation about the way that this new territory is going to be settled.
1. Associate Professor of Law, Temple University Law School; Co-Director, Cyberspace Law Institute. Postd@erols.com; <http://www.cli.org.>.
This is an expanded version of the talk delivered on September 28, 1996, at the annual meeting of the American Society of Comparative Law. A version of this talk was given as the Daniel W. Kops Lecture at Cornell University, September 16, 1996 under the title "Sex, Lies, and the Internet: Some New, and Some Not So New, Questions About Free Expression in Cyberspace." Many thanks to David R. Johnson for his help in formulating the arguments developed here.
2. See, e.g., American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa.), probable jurisdiction noted, 117 S. Ct. 554 (1996); Symposium, Emerging Media Technology and the First Amendment, 104 Yale L.J. 1613 (1995).
3. There is, to put it mildly, an enormous amount of literature that examines the application of copyright law in cyberspace. Seegenerally James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (1996); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 Cardozo Arts & Ent. L.J. 215 (1996); Jane C. Ginsburg, Putting Cars on the Information Superhighway: Authors, Exploiters, and Copyright in Cyberspace, 95 Colum. L. Rev. 1466 (1995); I. Trotter Hardy, Property (and Copyright) in Cyberspace, 1996 U. Chi. Legal F. (forthcoming Jan. 1997); Jessica Litman, Revising Copyright Law for the Information Age, 75 Or. L. Rev. 19 (1996); Neil Netanel, Copyright and a Democratic Civil Society, 106 Yale L.J. 283 (1996); Henry Perritt, Jr., Property and Innovation in the Global Information Infrastructure, 1996 U. Chi. Legal F. (forthcoming Jan. 1997); Pamela Samuelson, Digital Media and the Changing Face of Intellectual Property Law, 16 Rutgers Computer & Tech. L.J. 323 (1990).
4. See generally Michael Froomkin, Flood Control on the Information Ocean: Living with Anonymity, Digital Cash, and Distributed Databases, 15 J.L. & Com. 395 (1996); George Long, Who are You? Identity and Anonymity in Cyberspace, 55 U. Pitt. L. Rev. 1177 (1994); Curtis E. A. Karnow, The Encrypted Self: Fleshing Out the Rights of Electronic Personalities, 13 J. Marshall J. of Comp. & Info. L. 1 (1994); David Post, Pooling Intellectual Capital: Thoughts on Anonymity, Pseudonymity, and Limited Liability in Cyberspace, 1996 U. Chi. Legal F. (forthcoming Jan. 1997).
5. Cite to Joanna Zakalik's article in this symposium issue will be inserted.
6. See, e.g., Paul Edward Geller, Conflicts of Laws in Cyberspace: Rethinking International Copyright in a Digitally Networked World, 20 Colum.-VLA J.L. & Arts 571 (1996); Jane Ginsburg, Global Use/Territorial Rights: Private International Law Questions of the Global Information Infrastructure, 42 J. Copy Soc. 318 (1995).
7. Melville B. Nimmer & Paul E. Geller, International Copyright Law and Practice § 3 (1988-94); Ginsburg, supra note 5, at 319.
8. Berne Convention for the Protection of Literary and Artistic Works, Art. 5 para. 3.
9. Id. Art. 5 para. 1. See Ginsburg, supra note 5, at 319 (noting the national treatment rule "reinforces the principle of territoriality, because it confirms the role of local copyright laws by requiring that local law apply equally to the protection of local and foreign works of authorship").
10. This argument draws heavily on David R. Johnson and David G. Post, Law and Borders: The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996).
11. E.g., Restatement (Third) of Foreign Relations Law of the United States § 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 . . . ."); Malcolm N. Shaw, International Law 277-314 (3d ed. 1991) ("International law is based on the concept of the state [which] in its turn lies upon the foundation of sovereignty [which itself] is founded upon the fact of territory. Without territory, a legal person cannot be a state."); see also Lea Brilmayer, Consent, Contract, and Territory, 74 Minn. L. Rev. 1, 11-12 (1989) (noting the significance of state authority derived from sovereignty over physical territory in the context of social contract theory).
12. The Third Restatement of Foreign Relations Law of the United States states the principle thus: a state's prescriptive jurisdiction extends to "conduct that, wholly or in substantial part, takes place within its territory; the status of persons, or interests in things, present within its territory; [and] conduct outside its territory that has or is intended to have substantial effect within its territory." Restatement (Third) of Foreign Relations, supra note 10, § 402.
13. This change is exemplified by evolution from the approach embodied in the First Restatement of Conflict of Laws to that of the Second Restatement. See generally Restatement (Second) of Conflict of Laws § 145 (1982) intro. comm. (as a "reflection of a change in our national life" whereby the "increased mobility of our population and of the increasing tendency of men to conduct their affairs across boundary lines," the approach of the First Restatement, wherein "with minor exceptions, all substantive questions relating to the existence of a tort claim are governed by the local law of the 'place of wrong,'" has been replaced with the rights and liabilities of the parties in tort are said to be governed by the local law of the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties"). Seealso William M. Richman & William L. Reynolds, Understanding Conflict of Laws (1984); Lea Brilmayer, Conflict of Laws 44-108 (1991) (both describing the evolution of the Second Restatement approach). However, the core requirement that there be some nexus between a physical place and the persons or the transactions at issue remains.
14. See, e.g., Restatement (Second) of Conflicts of Law, supra note 12, § 145 (stating that "the rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties" which is determined by considering "(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered"); id. § 188(2) (directing courts, for contracts, to look at the place of contracting, the place of negotiation of the contract, the place of performance, the location of the subject matter, the domicile, residence, nationality, place of incorporation, and place of business of the participants). See generally Henry H. Perritt, Jr., Law and the Information Superhighway 527-33 (1996) (discussing these issues in context of the global information infrastructure).
15. Cf. Geller, supra note 5, at 573 ("It is no longer possible to localize works at any single point in transterritorial cyberspace, which William Gibson prophetically called the 'space that wasn't space.'") (quoting William Gibson, Count Zero 38 (1986)).
16. Lawrence Lessig, Zones in Cyberspace, 48 Stan. L. Rev. 1403, 1404 (1996).
17. The Reno court described the Usenet system as follows:
Distributed message databases. Similar in function to listservs but quite different in how communications are transmitted are distributed message databases such as "USENET newsgroups." User-sponsored newsgroups are among the most popular and widespread applications of Internet services, and cover all imaginable topics of interest to users. Like listservs, newsgroups are open discussions and exchanges on particular topics. Users, however, need not subscribe to the discussion mailing list in advance, but can instead access the database at any time. . . . USENET newsgroups are disseminated using ad hoc, peer to peer connections between approximately 200,000 computers (called USENET "servers") around the world. For unmoderated newsgroups, when an individual user with access to a USENET server posts a message to a newsgroup, the message is automatically forwarded to all adjacent USENET servers that furnish access to the newsgroup, and it is then propagated to the servers adjacent to those servers, etc. The messages are temporarily stored on each receiving server, where they are available for review and response by individual users. The messages are automatically and periodically purged from each system after a time to make room for new messages. Responses to messages, like the original messages, are automatically distributed to all other computers receiving the newsgroup or forwarded to a moderator in the case of a moderated newsgroup. The dissemination of messages to USENET servers around the world is an automated process that does not require direct human intervention or review.
ACLU v. Reno, 929 F. Supp. 824, 834-35 (E.D. Pa. 1996). See also 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, and 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 'distributed 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.
Id. See generally Usenet The Global Watering Hole, inThe Electronic Frontier Foundation's (Extended) Guide to the Internet.
18. See Dan L. Burk, Trademarks Along the Infobahn: A First Look at the Emerging Law of Cybermarks, 1 U. Rich. J.L. & Tech. 1, 12-14 (1995). For a general description of the Domain Name System, see also Robert Shaw, Internet Domain Names: Whose Domain is This?; Bush et al., Delegation of International Top Level Domains, Internet-Draft ymbk-itld-admin-00; RFC 882, Domain Names Concepts and Facilities; RFC 883, Domain Names Implementation and Specifications.
19. See supra note 12.
20. See id.
21. See Geller, supra note 5, at 595 ("[I]n the digital environment, the principle of territoriality will not provide reliable guidance in sorting out . . . conflicts of laws."); Ginsburg, supra note 5, at 319-20:
A key feature of the [Global Information Infrastructure] is its ability to render works of authorship pervasively and simultaneously accessible throughout the world. The principle of territoriality becomes problematic if it means that posting a work on the GII calls into play the laws of every country in which the work may be received when . . . these laws may differ substantively. Should the rights in a work be determined by a multiplicity of inconsistent legal regimes when the work is simultaneously communicated to scores of countries? Simply taking into account one country's laws, the complexity of placing works in a digital network is already daunting; should the task be further burdened by an obligation to assess the impact of the laws of every country where the work might be received? Put more bluntly, for works on the GII, there will be no physical territoriality; no way to stop works at the border because there will be no borders. Without physical territoriality, can legal territoriality persist?
22. See Walter Wriston, The Twilight of Sovereignty (1992).
23. David G. Post, Jefferson Ascendant. My apologies to those who are, not without reason, offended by this crass oversimplification of the complex dialectic between these two great polestars of American political thought. Cf. The American Enlightenment 547 (Adrienne Koch ed., 1965) (quoting Walter Lippmann's assertion that "to be partisan, as between Jefferson and Hamilton, is like arguing whether men or women are more necessary to the procreation of the race"). The Jefferson-Hamilton divide is well treated in Stanley Elkins & Eric McKitrick, The Age of Federalism (1993).
24. Hamilton's views on the importance of strong, centralized governmental power are well-known. For a good introduction to Hamilton's political thought, see Gerald Stourzh, Alexander Hamilton and the Idea of Republican Government (1970). Hamilton's views on the need for "energy in government" are described in Jacob Cooke, Alexander Hamilton 48-58 (1982). See also Gordon S. Wood, The Radicalism of the American Revolution 262 (1992) (Hamilton viewed as "nothing but delusions," the Jeffersonian view "that virtue and the natural sociability of people were the best social adhesives." Hamilton also "believed deeply in the 'need' for 'a common directing power' in government, and had only contempt for those who thought trade and other private interests could regulate themselves."). Hamilton's writings are full of opprobrium for those like Jefferson who, in his view, were "never to be satiated lovers of innovation and change . . . leading the dance to the tune of liberty without law," which
[left] too wide a door for sedition and popular licenciousness. In a government framed for durable liberty, no less regard must be paid to giving the magistrate a proper degree of authority, to make and execute the laws with rigour, than to guarding against encroachments upon the rights of the community. As too much power leads to despotism, too little leads to anarchy, and both eventually to the ruin of the people.
Alexander Hamilton, Contintentalist No. 1 (July 12, 1781), in The Papers of Alexander Hamilton 2, at 651 (1779-1781) (Harold C. Syrett & Jacob E. Locke eds., 1961) (footnotes omitted).
25. Hamilton is already making his presence felt on the net in calls for increasing harmonization of rules governing conduct in this new environment. Because of the obvious significance of intellectual property laws in this new medium, the global harmonization of strategy for cyberspace has been most forcefully pressed in this context. See National Information Superstructure Task Force, Intellectual Property and the National Information Infrastructure 132 (1994) (stating Clinton administration position in favor of "efforts to work toward a new level of international harmonization" of international copyright law); Nimmer, Licensing on the Global Information Infrastructure: Disharmony in Cyberspace, J. Intl. L. Bus. 224, 246-47 (1995) ("The multinational character of [Global Information Infrastructure]-related property and contract law creates potentially huge problems for the development of commercial relationships relating to information and other tangivle property moved through and around the [Global Information Infrastructure]. More so here than in any prior commercial/economic context, an enhanced degree of harmonization and simplification is needed to enable the transactions made possible by the technology to occur.") (emphasis added); Goldring, Netting the Cybershark: Consumer Protection, Cyberspace, the Nation-State, and Democracy, in B. Kahin & C. Nesson, Borders in Cyberspace 322, 340-344 (1996) (because cyberspace activities know no national boundaries, may call for harmonization of intellectual property laws); Charles McManis, Taking Trips on the Information Superhighway: International Intellectual Property Protection and Emerging Computer Technology, 41 Vill. L. Rev. 207 (1995) (discussing efforts to harmonize international trademark and unfair competition laws). The recently-concluded meetings called by the World Intellectual Property Organization to consider proposals to modify the Berne Convention for Literary and Artistic Property is a prime example of and attempt to implement this strategy.
In regard to other legal regimes, see Herscha, Is There a Doctor in the House? Licensing and Malpractice Issues Involved in Telemedicine, 2 B.U. J. Sci. & Tech. 8 (1996) (suggesting need for harmonized national licensing scheme for physicians); Michael Rustad & Lori Eisenschmidt, The Commercial Law of Interned Security, 10 High Tech. L.J. 213, 300 (1995) (noting the demand among commentators for a "uniform commercial law of the Internet"); Jeffery Ritter & Judith Gliniecki, International Electronic Commerce and Administrative Law: The Need for Harmonixed National Reforms, 6 Harv. J.L & Tech. 263 (1993); Lewis Solomon & Louise Corso, The Impact of Technology on the Trading of Securities: The Emerging Glogal Market and the Implications for Regulation, 24 J. Marshall L. Rev. 299, 330 (1991) (noting the difficult choice of law problems posed by cyberspace securities markets, and suggesting that "adoption of a uniform international law by all nations would surely be an ideal solution to the problems of internationalization"); Darryl Wilson, Viewing Computer Crime: Where Does the Systems Error Really Exist?, 11 Computer/L.J. 265 (1991) (arguing for adoption of a uniform federal computer crime statute to guide federal law, as well as to serve as a model for state law); Grundfest, Internationalization of the World's Securities Markets: Economic Causes and Regulatory Consequences, 4 J. Fin. Svcs. Res. 349 (1990) (discussing drive to increase global harmonization of securities laws in response to the increasing frequency of cross-border transactions).
26. The Jefferson to whom I refer is the one who could write:
The way to have good and safe governement, is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to. Let the national government be entrusted with the defence of the nation, and its foreign and federal relations; the State governments with the civil rights, law, police and administration of what concerns the State generally; the counties with the local concerns of the counties; and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man's farm and affairs by himself; by placing under every one what his own eye may superintend, that all will be done for the best.
Letter from Thomas Jefferson to Joseph Cabell (Feb. 2, 1816), in David N. Mayer, The Constitutional Thought of Thomas Jefferson 316-17 (1994); see also id. at 314-24 (describing Jefferson's philosophy of limited government); Gordon S. Wood, Thomas Jefferson, Equality, and the Creation of a Civil Society, 64 Fordham L. Rev. 2133, 2135 (1996) (describing Jefferson's "ideas of minimal government," including his belief that "the best government was the one that governs least, that he disliked all federal taxes . . . that he feared all governmental power, and often suggested that government was only a device by which the few attempt to rob, cheat, and oppress the many").
Interestingly, in light of the frequent reference to cyberspace as a kind of modern day Wild West, Hamilton and Jefferson had very different views about the desirability of expanding American influence in the "Western" territories (of Kentucky, Ohio, etc.). For his part, Hamilton despaired of the central government's ability to maintain control over settlements in the western territories:
The western region [is] not valuable to the United States for settlement. . . . [Should] our own citizens, more enterprising than wise, become desirous of settling this country, and emigrate thither, it must not only be attended with all the injuries of a too widely dispersed population, but by adding to the great weight of the western part of our territory, must hasten the dismemberment of a large portion of our country, or a dissolution of the Government.
Purchase of Louisiana, N.Y. Evening Post, July 5, 1803, quotedin Stourzh, supra note 23, at 193. Hamilton, of course, spoke from bitter personal experience; one of the great crises faced during his tenure as Secretary of the Treasury was the Whisky Rebellion, the refusal of settlers in the "western region" to pay the newly-imposed federal levy on distilled spirits, and Hamilton himself was forced to lead the militia into battle to ensure efficient projection of federal power as the westward expansion proceeded.
Jefferson, on the other hand, foresaw a flourishing "empire of liberty" on the western frontier, a place where a diffusion of power could take root and where "new sources of renovation" would serve as a safety valve against the despotic tendencies of the national government, renewing the spirit of liberty "should its principles, at any time, degenerate, in those portions of our country which gave them birth." Stourzh, supra note 23, at 192.
27. See Reidenberg, Governing Networks and Rule-Making in Cyberspace, in Borders in Cyberspace 84 (B. Kahin & C. Nesson eds., 1996) (discussing 'network federalism'); see also Dan L. Burk, Federalism in Cyberspace, 28 Conn. L. Rev. 1095 (1996).
28. Decentralized law-making processes in cyberspace will take other, perhaps less familiar, forms as well. In cyberspace, language the multiple software codes that define the architecture of cyberspace is law. See M. Ethan Katsh, Software Worlds and the First Amendment: Virtual Doorkeepers in Cyberspace, U. Chi. Legal F. (forthcoming) (discussing cyberspace as a "software world" where "code is the law"); Johnson & Post, supra note 9, at 1395-97 (describing ease with which 'software boundaries' can delineate separate territiories in cyberspace); Lawrence Lessig, Reading the Constitution in Cyberspace, Emory L.J. (forthcoming) (describing the "three sorts of laws or . . . 'codes' that will operate in cyberspace: legal constraints, social constraints, or social norms; and the "rules, or laws, inscribed in the software itself the code of the code"); David G. Post, Anarchy, State, and the Internet, 1 J. Online L. 3, ¶ 20 (1995) (discussing relationship between network technical specifications and the "law of the Internet"); see also David G. Post, Understanding the Techno Evolution, American Lawyer, Sept. 1996, at 104 (suggesting that the recent decision in ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa.), probable jurisdiction noted, 117 S. Ct. 554 (1996), striking down the Communications Decency Act on constitutional grounds, was the "first glimmerings of judicial recognition . . . that "software" is itself an alternative source of "law" . . . whose superior enforcement capabilities may give it a competitive advantage on the Net over more traditional forms of law like the CDA"). The many "linguistic communities" in cyberspace populations of individual machines speaking different languages may form prominent loci of law-making in cyberspace.
29. See supra note 1.
30. C.A. Nos. 96-2846, 96-5213 (E.D. Pa. Nov. 26, 1996).
31. See David G. Post, The Case of Virtual Junk Mail, American Lawyer, Nov. 1996, at 97.
32. Just before this talk was delivered, the Third Circuit in fact vacated the trial court's injunction. See Shannon P. Duffy, 3rd Circuit Frees AOL To Block Junk E-Mail, Legal Intelligencer, Sept. 23, 1996 at 1; America Online Wins Appeal on Mail, N.Y. Times, Sept. 21, 1996, at 43.
33. This idea of markets as information processors is most closely associated with the work of Friedrich Hayek. See, e.g., Friedrich Hayek, The Pretence of Knowledge, in New Studies in Philosophy, Politics, Economics and the History of Ideas 34 (1978) ("We are only beginning to understand how subtle a communication system the functioning of an advanced industrial society is based a communications system which we call the market and which turns out to be a more efficient mechanism for digesting dispersed information than any that man has deliberately designed."); Eamonn Butler, Hayek: His Contribution to the Political and Economic Thought of our Time 41-65 (1983) (discussing generally Hayek's views on the information-processing potential of markets).
34. The study of these processes may lead decentralized systems of various kinds social, political, biological, and technological to ordered end-states has, in recent years, come to be known as "Complexity Theory." A particularly readable introduction to this theory can be found in Stuart A. Kauffman, At Home in the Universe: The Search for Laws of Self-Organization and Complexity (1995). For particularly intriguing applications of this body of theory to studies of legal evolution, see, e.g., J.B. Ruhl, The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society and Its Practical Meaning for Democracy, 49 Vand. L. Rev. 1407 (1996); Glenn Harlan Reynolds, Is Denocracy Like Sex?, 48 Vand. L. Rev. 1635 (1995). See also David G. Post and David R. Johnson, "The New Civic Virtue of the Net: A Complex Governance Model for Cyberspace,"<http://www.cli.org/paper4.htm>.
35. Indeed, Robert Cooter has suggested that "centralized law . . . is not even plausible for a technologically advanced society. . . . [E]fficiency requires decentralized law to become more important, not less important, as economies become more complex." Robert Cooter, The Theory of Market Modernization of Law, 16 Int'l. Rev. L. & Econ. 141, 148 (1996).