Juries and the New Common Law of Cyberspace
David G. Post
Plugging In, September 2000
But I’m starting to come around. The constitutional system of the United States is based on a very simple idea: that the people are sovereign, that all law-making power derives ultimately from them, and that law cannot legitimately be imposed upon them unless they have a voice – an equal voice, at that -- in its creation. In Thomas Jefferson’s always-quotable words, "the essence of a republic is action by the citizens, in person in affairs within their reach and competence, and in all others by representatives, chosen, and removable, by themselves." These principles:
But over the past 200 years or so the idea that the people are sovereign has been transformed -- rather remarkably, when you think about it -- into a kind of "self-evident truth," a principle whose validity we take completely for granted and which we never seriously question.
The Constitutional system erected in 1787 is one way –not the only way, to be sure -- to implement this principle. The citizenry elects (Article I) representatives to sit in the law-making legislative body; they elect (Article II) a Chief Executive to oversee the ways in which law is applied to them; and their elected representatives themselves select (Article III) those who will sit as judges when that happens.
And they sit on juries. Though we often overlook it– at least, I often overlook it – the right to a trial by a jury of your peers was considered, and remains, an integral part of this intricate law-making system, another mechanism by which popular sovereignty is expressed and the people get to "make law." Jefferson again put it nicely:
Neither I, nor anyone else, for that matter, can tell you exactly what "well built" or "poorly built" institutions look like in this context; this is new and untrodden ground we’re walking on here. But Jefferson was right: the touchstone by which we should try the services of those we trust with law-making power is whether the people subject to the law have a voice in making it. If not -- if we have wandered from this principle in a moment of error or of alarm – we should hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety.
How well do cyberspace’s law-making institution measure up? Well, let me describe a particular set of such institutions, and you can judge for yourself. It’s a bit of a tangled story, but important enough that it is worth a bit of your attention.
As I (and others) have described in detail elsewhere, the United States government turned over management of the Internet’s domain name system to a private group, the Internet Corporation for Assigned Names and Numbers (ICANN), in 1998. Last November (1999), ICANN adopted something called the Uniform Dispute Resolution Policy (UDRP) – that’s it for acronyms, I promise. The UDRP was designed to deal with a set of conflicts that had arisen on the Net -- specifically, the well-publicized clashes between trademark holders and so-called "cybersquatters" over possession of particular domain names in the popular *.COM, *.ORG, or *.NET domains: the clash, for instance, arising out of Zippo, Inc.’s claim that its trademark in the word "zippo" entitles it to the domain name "zippo.com," or Porsche, Inc.’s claim that its trademark in the word "porsche" entitles it to the domain name "porsche.com," or Planned Parenthood of America’s claim that its trademark in the phrase "Planned Parenthood" entitles it to the domain name "plannedparenthood.org," or any of the dozens of other disputes like these that have made their way into courtrooms around the world.
The UDRP states that the trademark holder is entitled to the domain name if:
Is the UDRP "law"? Well, we could have an interesting philosophical discussion about that – "what is law?’ and all that. But I’ll save that for the classroom and the scholarly journals. If it walks like a duck and quacks like a duck, it’s a duck (even if it has a sign around its neck that says "I’m a dog."). The UDRP walks and quacks like law. It sets out a rule for deciding between competing claims to possession of particular resources. It sets up a process to apply that rule on a case-by-case basis.
And it is binding upon those in possession of the resource in question; in the event of an adverse ruling, the domain name holder will relinquish possession of the contested domain name.
[[It is, in fact, a little more complicated even than this; the losing party in a UDRP dispute does not relinquish the right to take the matter to court. So the decisions of the UDRP panels, while binding on domain name holders, are not final judgments, at least in theory. But possession, as the old cliche has it, is sometimes nine-tenths of the law; as a practical matter, only a minuscule handful of the over 1500 decisions that have handed down under the UDRP have been appealed to local courts.]]
For all intents and purposes, this process is creating a new body of international trademark law. Now, I don’t have the instinctive distaste for 'private law-making institutions' that some of my friends and colleagues have. In my judgment, the governing rules about things like "cybersquatting" can be made, and made well, by non-governmental institutions. So I don't object in principle to the idea that these disputes are being decided outside the traditional framework of courts and legislatures and the like.
But does the UDRP process measure up to our touchstone? Do those who are subject to this new law have any voice in its creation and application? Hardly. The ICANN Board that adopted the UDRP is hardly a "representative" institution; nine of its members are self-appointed, nine others have been appointed by "Supporting Organizations" in which the domain name holders of the world have no real voice. [In fairness to ICANN, I should point out that it is, as we speak, trying to figure out some way to make its Board a more representative institution through the election of five "At-Large Directors." But as of this writing – and as of the time the UDRP was adopted -- nothing has been worked out in that regard.]
And what about the arbitrators? Full disclosure: I myself have served as an arbitrator for a UDRP proceeding (Softquad Software v. Eleven-Eleven, Inc.), and I helped set up one of the organizations – the Disputes.org/eResolution Consortium – that has received ICANN accreditation to handle these claims. So I’m no arbitrator-basher; the organizations that ICANN has thus far accredited appear to be reputable, and the arbitrators generally seem to be smart, honest folks doing a reasonably good job.
But they can hardly claim to reflect, in any way, the views of those who are subject to their rulings. They, too, are entirely self-appointed; no mechanism exists whereby the public at large can select those in whom they are willing to repose their confidence, nor is there any removal mechanism to get rid of those who have, in the public’s eyes, misused their law-making authority.
We have, it seems to me, created a law-making system without law-making legitimacy, a system devoid of any means by which those on whom the law is being imposed can voice their views about it and participate in its formation.
A particularly critical place, then, for the institution of the jury. As mentioned above, every UDRP case must resolve the question of whether "the domain name holder has registered, or is using, the domain name ‘in bad faith’." Why would we think that some "expert" arbitrator is better able than anyone else – JohnQ@Public.org -- to decide that question? Is it "bad faith" to register porsche.com because you love Porsches and want to set up a "fan site"? Is it "bad faith" to register porsche.com if you represent the union representing Porsche workers? Is it "bad faith" to register porsche.com because you don’t want Porsche, Inc. to have its own website? Is it "bad faith" to register porsche.com if you are in the business of selling second-hand Porsches? Is it "bad faith" to register porsche.com if your last name is "Porsche"? Is it "bad faith" to register porsche.com because you want to set up a website to collect critical comments about Porsche automobiles?
What gives me, or any of the other self-appointed experts who are serving as arbitrators of these disputes, any special claim to wisdom on this score? These are precisely the sorts of questions, it seems to me, on which "the people" should get to air their views, and on which an expert’s opinion carries no more weight than anyone else’s. They are "legal" questions, but those trained in the law do not have any special competence to determine their answer in any particular case. They are ultimately questions about the reasonableness (or lack thereof) of conduct – just the sort of question we place, under the 7th Amendment, before the jury to decide.
I don’t minimize the difficulties that we might face in trying to get this institution off the ground. How should UDRP juries be chosen? What’s the appropriate pool of jurors? What about language problems? How might we get people to view jury service in cyberspace as a kind of civic obligation (and avoid the situation where only people with too much time on their hands actually agree to serve)?
But this is too serious a matter to give up without a fight. The problems are not, I suspect, insurmountable – and we won’t know, in any event, until we try a lot harder than we have up to now to solve them. I’m going to prepare a formal submission to ICANN on how we might accomplish this, and I urge any of you who might be interested in working on this to get in touch with me (at Postd@erols.com).
You might be thinking that this is all much ado about nothing. It is surely true that, when all is said and done, the UDRP deals with a pretty narrow slice of legal questions of little concern to most people. Efforts to figure out how to make this a more legitimate process might seem hardly worth the trouble.
The UDRP, though, is just the opening wedge, the first step in what will likely be a long journey towards the design of the new set of legal institutions that will be setting rules and creating a degree of order for the global network. For better or for worse, this private law-making model is likely to serve as a template for other, more complex and more significant issues, whether administered through ICANN and the domain name system or otherwise. We’ll be sorry – very sorry, I think -- if we don’t get it right.