Are We Overprotecting Code? Thoughts on First-Generation Internet Law

Abstract

This Essay argues that Internet law presently suffers from a tendency to regulate cyberspace based on form rather than junction. In areas such as free speech, patent law, and privacy law, judges and legislatures have regulated Internet code based on what it is, rather than what it does. The result has been remarkably broad rules that extend far greater legal protection to code in cyberspace than its equivalents receive in the physical world. The author suggests that greater focus on junction can permit more accurate applications of traditional legal doctrines to the Internet.

Keywords: cyberlaw, cyberspace, Internet law

JEL Classification: K1, K42, K13