The Prospect of Reconciling Internet and Cyberspace
Brett M. Frischmann
Yeshiva University - Benjamin N. Cardozo School of Law
Loyola University Chicago Law Journal, Vol. 35, pp. 205-234, 2003
Cyberlaw scholars have suggested that the outcome of many cyberlaw disputes depends significantly, if not entirely, on a judge's perspective of the Internet and how it works. Much of the debate among scholars focuses on figuring out which is the right perspective and which is the wrong perspective. There are two dominant perspectives of the Internet: an external perspective and an internal perspective. From the external perspective, one perceives the Internet in terms of its technical real-space operations - the Internet is a global meta-network that serves as an open platform for the transmission of information among end-users that connect computers to the network. From the internal perspective, one perceives the Internet in terms of the applications it enables and the ways in which those applications affect end-users; the technical operation of the network infrastructure may be largely irrelevant in terms of one's experience. This internal perspective leads to the conception of cyberspace as virtual reality.
In "The Problem of Perspective in Internet Law", Orin Kerr demonstrates the pervasiveness of these perspectives and observes "[b]oth internal and external perspectives can appear perfectly viable depending on the circumstances, and courts and commentators switch between them frequently without even recognizing the change." Kerr argues "we need to be aware of the problem of perspective and develop tools that can help us choose between real and virtual understandings of the Internet when we apply law to it."
While I agree with Kerr that "we need to be aware of the problem of perspective," I do not believe that a choice should be made (by courts, legislators, academics, or anyone else) between an external perspective focused on the technical operations of the Internet and an internal perspective focused on end-users' experiences. The perceived need to choose among perspectives is itself problematic.
In this article, I contend that both perspectives are descriptively valid and real, and both perspectives yield important insights about the facts of the Internet and the interests at stake in a legal decision. Choosing either perspective may lead to a partial view of the underlying facts in a given dispute (essentially, tunnel vision), which may effectively determine the outcome of a legal decision and bypass the difficult legal (normative) analysis that courts, legislators, and academics should undertake. Choosing a perspective subtly substitutes fact-finding for legal analysis and thereby masks policy decisions in the rhetoric of metaphor and factual analogy. Recognizing that both perspectives provide valid and accurate renditions of the underlying facts will allow courts (and scholars) to better examine the sets of interests at stake in a given dispute and engage in a principled application of relevant legal doctrines designed to address such interests.
Cyberlaw disputes tend to involve the following types of interests: (1) physical, tangible assets like computer network facilities, routers, and servers; (2) intangible information assets ranging from copyright-protected expression to public domain data; and (3) relational assets like goodwill, trust, and community values - in other words, assets based on relationships among people. Legal doctrines tend to focus on a particular set of interests. (For example, property law focuses on physical, tangible assets.) Courts applying traditional legal doctrine or developing new doctrine in cyberlaw cases should appreciate the connections (or links) between the three types of interests made possible via the Internet.
Courts should be open to the prospect of reconsidering (and perhaps recalibrating) the balancing of interests struck by existing law, and also should consider the complex intersections among different areas of the law. It is well understood that law develops to protect and balance particular sets of interests in a given factual context, and that evolving technology can change the factual context and thereby disrupt previously-struck balances, e.g., consider copyright law in the digital age. However, it may be less understood that a change in factual context may bring into relief complex intersections between traditionally independent areas of the law. When evaluating and applying law and creating new law, courts must understand and fully appreciate the significance of changes in factual context. Recognizing the validity and utility of both the external and internal perspectives may engender such an appreciation; whereas choosing one perspective over the other may simply lead to tunnel vision.
Number of Pages in PDF File: 30
Keywords: internet, cyberlaw, cyberspace, metaphor
JEL Classification: K10, K20, K30, K40, L86Accepted Paper Series
Date posted: March 14, 2004
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