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Abstract:
What if you could check out of your world, and enter a place where the social environment was different, where real world laws didn't apply, and where the political system could be anything you wanted it to be? What if you could socialize there with family and friends, build your own palace, go skiing, and even hold down a job there? And what if there wasn't one alternate world, there were hundreds, and what if millions of people checked out of Earth and went there every day?

Virtual worlds - online worlds where millions of people come to interact, play, and socialize - are a new type of social order. In this Article, we examine the implications of virtual worlds for our understanding of law, and demonstrate how law affects the interests of those within the world. After providing an extensive primer on virtual worlds, including their history and function, we examine two fundamental issues in detail.

First, we focus on property, and ask whether it is possible to say that virtual world users have real world property interests in virtual objects. Adopting economic accounts that demonstrate the real world value of these objects and the exchange mechanisms for trading these objects, we show that, descriptively, these types of objects are indistinguishable from real world property interests. Further, the normative justifications for property interests in the real world apply - sometimes more strongly - in the virtual worlds.

Second, we discuss whether avatars have enforceable legal and moral rights. Avatars, the user-controlled entities that interact with virtual worlds, are a persistent extension of their human users, and users identify with them so closely that the human-avatar being can be thought of as a cyborg. We examine the issue of cyborg rights within virtual worlds and whether they may have real world significance.

The issues of virtual property and avatar rights constitute legal challenges for our online future. Though virtual worlds may be games now, they are rapidly becoming as significant as real-world places where people interact, shop, sell, and work. As society and law begin to develop within virtual worlds, we need to have a better understanding of the interaction of the laws of the virtual worlds with the law of this world.

virtual worlds, cyberlaw, cyberspace governance, intangible property, online rights, avatar rights

Abstract:
Cyberspace was once thought to be the modern equivalent of the Western Frontier, a place, where land was free for the taking, where explorers could roam, and communities could form with their own rules. It was an endless expanse of space: open, free, replete with possibility. This is true no longer. This Article argues that we are enclosing cyberspace, and imposing private property conceptions upon it. As a result, we are creating a digital anti-commons where sub-optimal uses of Internet resources is going to be the norm.

Part I shows why initial discussions of cyberspace as place have mistaken the idea of how we think about cyberspace, with the normative question of how we should regulate cyberspace. It suggests that we can bracket the normative question, and still answer the descriptive question of whether we think of cyberspace as a place.

Part II then examines the lessons of recent cognitive science, and demonstrates the importance of physical metaphors within our cognitive system. It then examines the evidence of our use of a physical metaphor, "cyberspace as place", in understanding online communication environments.

Part III focuses on the unacknowledged, and unrecognized, influence that this metaphor has had on the development of the legal framework for the Internet. It examines tortious, criminal, and constitutional law responses to cyberspace, and concludes that the metaphor of "cyberspace as place" exercises a strong, and unrecognized, influence on the regulatory regimes of cyberspace.

Part IV details the implications of this observation and shows why they are extremely troubling. The conception of "cyberspace as place" leads to the implication that there is property online, and that this property should be privately owned, parceled out, and exploited. Though private ownership of resources of itself is not problematic, it can lead to the opposite of the tragedy of the commons: the tragedy of the anti-commons. Anti-commons property occurs when multiple parties have an effective right to preclude others from using a given resource, and as a result no-one has an effective right of use. Part IV argues that this is precisely where the "cyberspace as place" metaphor leads. We are moving to a digital anti-commons, where no-one will be allowed to access competitors' cyberspace "assets" without some licensing, or other transactionally-expensive (or impossible), permission mechanism. The Article shows how the "cyberspace as place" metaphor leads to undesirable private control of the previously commons-like Internet, and the emergence of the digital anti-commons. As we all come to stake out our little claim in cyberspace, then the commons which is cyberspace is being destroyed.

cyberspace regulation, cyberlaw, cognitive science

Abstract:
Over the last ten years, much of copyright and patent has come under attack from those who suggest that capture by private interests has had a pernicious influence on public policy. In the related areas of telecommunication spectrum management and internet regulation there have emerged strong arguments for not allocating private property interests, and instead considering these domains as commons property. I suggest that, together, these developments form part of a culture war, a war over the means of production of creative content in our society. I argue that the best way to understand this war is to view it as a Marxist struggle. However, I suggest that copyright and patent reform - where commentators have actually been accused of Marxism - is not where the Marxist revolution is taking place. Instead I locate that revolution elsewhere, most notably in the rise of open source production and dissemination of cultural content.

Cyberlaw, intellectual property, Marxism

Abstract:
Markets for virtual property in massively multiplayer online games have recently emerged. This essay explores the question of whether such markets for virtual world properties might someday provide a basis for real criminal prosecutions. The authors conclude that this is unlikely. This is not due to the intangibility of virtual assets, but instead due to the contractual arrangements which modify the legal rights of players, as well as the encoded and textual game rules which govern player-to-player interactions in virtual worlds.

Property, rules, virtual worlds, games, cyberspace, cybercrime

Abstract:
Copyright, it is commonly said, matters in society because it encourages the production of socially beneficial, culturally significant expressive content. However our focus on copyright's recent history blinds us to the social information practices which have always existed. In this article, we examine these social information practices, and query copyright's role within them. We posit a functional model of what is necessary for creative content to move from creator to user. These are the functions dealing with creation, selection, production, dissemination, promotion, sale, and use of expressive content. We demonstrate how centralized commercial control of information content has been the driving force behind copyright's expansion. However, all of the functions that copyright industries used to control are undergoing revolutionary decentralization and disintermediation. Different aspects of information technology, notably the digitization of information, widespread computer ownership, the rise of the Internet, and the development of social software, threaten the viability and desirability of centralized control over every one of the content functions. These functions are increasingly being performed by individuals and disorganized, distributed groups. This raises an issue for copyright as the main regulatory force in information practices, because copyright assumes a central control structure that no longer applies to creative content. We examine the normative implications of this shift for our information policy in this new post-copyright era. Most notably we conclude that copyright law needs to be adjusted in order to recognize the opportunity and desirability of decentralized content, and the expanded marketplace of ideas it promises.

Copyright, expressive content, culture, peer production

Abstract:
The most significant recent development in scholarly publishing is the open access movement, which seeks to provide free online access to scholarly literature. Though this movement is well-developed in scientific and medical disciplines, American law reviews are almost completely unaware of the possibilities of open access publishing models. This Essay explains how open access publishing works, why it is important, and makes the case for its widespread adoption by law reviews. It also reports on a survey of law review publication policies conducted in 2004. This survey shows, inter alia, that few law reviews have embraced the opportunities of open access publishing, and many of the top law reviews are acting as stalking horses for the commercial interests of legal database providers. The open access model promises greater access to legal scholarship, wider readership for law reviews, and reputational benefits for law reviews and the law schools which house them. This Essay demonstrates how open access comports with the institutional aims of law schools and law reviews, and is better suited to the unique environment of legal publishing than the model that law reviews currently pursue. Moreover, the institutional structure of law reviews means that it is possible that the entire corpus of law reviews could easily move to an open access model, making law the first discipline with a realistic prospect of complete commitment to free, open access of all scholarly output.

Open Access, Legal Publishing

Abstract:
In the economy of the 21st century, economic and technical innovation is increasingly based on developments that don't rely on economic incentive or public provision. Unlike 20th century innovation, the most important developments in innovation have been driven not by research funded by governments or developed by corporations but by the collaborative interactions of individuals. In most cases, this modality of innovation has not been motivated by economic concerns or the prospect of profit. This raises the possibility of a world in which some of the sectors of the economy particularly the ones dealing with innovation and creativity are driven by social interactions of various kinds, rather than by profit-oriented investment. This Article examines the development of this amateur modality of creative production, and explains how it came to exist. It then deals with why this modality is different from and potentially inconsistent with the typical modalities of production that are at the heart of modern views of innovation policy. It provides a number of policy prescriptions that should be used by governments to recognize the significance of amateur innovation, and to further the development of amateur productivity.

Intellectual Property, Innovation Policy, Law, Economics

Abstract:
This Article argues that cognitive science models of human thinking tell us a huge amount about how analogical reasoning operates in law. Judges, attorneys, law professors, and students all reason with legal cases in ways that are clearly explained by cognitive science theories and experiments. The Article begins by explaining the different features of cognitive science theories of analogy. It examines the most salient theory - the multiple-constraint model - applies it to legal analogical reasoning, and shows how it fits with constraint theories in law generally.

In Part II, the Article examines the approach of legal theory to analogy. It begins by showing the different uses made of analogy within legal reasoning. Then it reviews the major theories of analogical inference presented by theorists like Alexander, Dworkin, Levi, Golding, Brewer and Sunstein. These theories are characterized by their reliance on a rule-based model of legal analogy. The author argues that this is fundamentally incoherent, and not as expressive or relevant as those provided by the multiple-constraint model. The Article concludes with an explanation of why these legal theories are so limited, and makes a call for greater attention to what is actually happening when lawyers and judges reason with analogy.

Abstract:
This Review Essay examines a recent trend in so-called "second generation" legal commentary about the Internet. This trend suggests that, for all that the Internet is an un-paralleled communication medium and a means of engaging in global e-commerce, it is not unmitigated force for good. Instead, the Net poses a fundamental danger to democracy. This trend is found to some degree in works by well-known cyberlaw theorists like Lawrence Lessig, Andrew Shapiro, and Neil Weinstock Netanel, but the most recent and most troubling criticism is found in Professor Cass Sunstein's REPUBLIC.COM.

In this book, Professor Sunstein argues that perfect filtering of information on the Internet is going to lead to a fractured communications environment. He suggests that this will lead to group polarization, cascades of false information, and a concomitant rise in extremism. Governmental regulation of the Internet to reduce these features is therefore warranted, and desirable. He suggests that the appropriate regulatory responses should include setting up or supporting public environments for deliberation and debate on the Net, along with a series of disclosure and "must carry" rules of various descriptions.

This Essay finds fault with almost every major feature of Sunstein's argument. First, it dismisses his assumptions that perfect filtering on the Net is either likely to occur, is possible in the sense that he suggests, or is significantly different from the media filtering which we already experience. Second, it argues that Sunstein mis-applies the social psychology work on how groups polarize to more extreme positions. Contrary to the fundamental basis of REPUBLIC.COM, the research on group polarization does not inevitably lead to the conclusion that the Internet creates extremist communications or behavior. Third, it suggests that Sunstein's theory of governance is controversial, and that important features of cyberlibertarian governance theories seriously undermine his position. And finally, it criticizes Sunstein's proposals for reform as utterly meritless. These proposals are either contradicted by his own earlier "perfect filtering" argument, or by his misunderstanding of the Net as a local broadcast medium.

Internet governance, democratic theory, social psychology

Abstract:
Analogy plays a central role in legal reasoning, yet how to analogize is poorly taught and poorly practiced. We all recognize when legal analogies are being made: when a law professor suggests a difficult hypothetical in class and a student tentatively guesses at the answer based on the cases she read the night before, when an attorney advises a client to settle because a previous case goes against him, or when a judge adopts one precedent over another on the basis that it better fits the present case. However, when it comes to explaining why certain analogies are compelling, persuasive, or better than the alternative, lawyers usually draw a blank. The purpose of this article is to provide a simple model that can be used to teach and to learn how analogy actually works, and what makes one analogy superior to a competing analogy. The model is drawn from a number of theories of analogy-making in cognitive science. Cognitive science is the "long-term enterprise to understand the mind scientifically." The field studies the mechanisms that are involved in cognitive processes like thinking, memory, learning, and recall; and one of its main foci has been on how people construct analogies. The lessons from cognitive science theories of analogy can be applied to legal analogies to give students and lawyers a better understanding of this fundamental process in legal reasoning.

analogy, legal reasoning, cognitive science

Abstract:
The Internet Corporation for Assigned Names and Numbers (ICANN) is an institution besieged. It has endeavored to be democratic but its attempts to do so have been disastrous. The typical explanation for this is that the problem is with ICANN: it fails to meet its democratic obligations. My view is that the problem is with our understanding of "democracy." Democracy is an empty concept that fails to describe few, if any, of our genuine political commitments. In the real world, the failings inherent in "democracy" have been papered over by some unusual characteristics of the physical political process. However, in online trans-national institutions like ICANN, democracy is exposed as a poor substitute for a number of other conceptions of our political commitments.

This Article seeks to articulate these political commitments and to explain why democracy and ICANN are such a poor mix. It begins by charting the rise of ICANN and its attempts to be democratic. It then explains why democracy is an empty shell of a concept. It then explores some features of democracy and ICANN, explaining why the online world exposes limitations in implications of democracy such as the nature of the demos, the idea of constituencies, direct democracy, voting, and the like. It concludes that ICANN's example demonstrates that democracy is in fact anything but a coherent general theory of political action. We need to consider, then, whether we should continue to berate ICANN for its undemocratic actions.

Cyberlaw, Internet Governance, Democracy

Abstract:
This Article is about legal scholarly publication in a time of plenitude. It is an attempt to explain why the most pressing questions in legal scholarly publishing are about how we ensure access to an infinity of content. It explains why standard assumptions about resource scarcity in publication are wrong in general, and how the changes in the modality of publication affect legal scholarship. It talks about the economics of open access to legal material, and how this connects to a future where there is infinite content. And because student-edited law reviews fit this future better than their commercially-produced, peer-refereed cousins, this Article is, in part, a defense of the crazy-beautiful institution that is the American law review.

Abstract:
Induction is an interesting model of legal reasoning, since it provides a method of capturing initial states of legal principles and rules, and adjusting these principles and rules over time as the law changes. In this Article I explain how Artificial Intelligence-based inductive learning algorithms work, and show how they have been used in law to model legal domains. I identify some problems with implementations undertaken in law to date, and create a taxonomy of appropriate cases to use in legal inductive inferencing systems. I suggest that inductive learning algorithms have potential in modeling law, but that the artificial intelligence implementations to date are problematic. I argue that induction should be further investigated, since it has the potential to be an extremely useful mechanism for understanding legal domains.