38 Pages Posted: 13 Nov 2002
Date Written: November 2002
For cyberlibertarians, the other shoe is rapidly dropping. In a curious inversion, those who argued less than a decade ago that cyberspace was a place all its own - and therefore unregulable by territorial governments - are finding their arguments and assumptions used for a very different end. Instead of concluding that cyberspace is outside of the physical world, courts are increasingly using the metaphor of cyberspace as a "place" to justify application of traditional laws governing real property to this new medium. Dan Hunter's excellent article explains how and why this is happening with uncanny accuracy, pointing to the power of metaphor in influencing legal thinking and the particular strength of metaphor in making the new seem familiar. He also quite correctly observes that reliance on the cyberspace as place metaphor is leading courts to results that are nothing short of disastrous as a matter of public policy. Finally, he concludes that there is no way for the Internet to escape the firmly entrenched spatial metaphor, either by substituting another metaphor or by eschewing metaphor altogether. Already, he concludes, the idea of cyberspace as a place is too well-established in our minds. The result is a paper that is both extraordinarily important and profoundly depressing.
In this essay, I do not challenge Hunter's argument that the cyberspace as place metaphor is rampant, nor his conclusion that judicial use of the metaphor has had pernicious consequences. Rather, I focus on the logical steps that courts seem to be missing as they move from metaphor to decision. Thus, in Part I, I explain why the cyberspace as place metaphor is not a particularly good one. In Part II, I suggest some ways courts might take account of these differences between the real world and the Internet. In Part III, I observe that even if one accepts the place metaphor in toto, it need not follow that everything in this new place must be privately owned. Nor must it follow that private ownership rights include complete rights of exclusion. My conclusion is somewhat more optimistic than Hunter's. While acknowledging the dangers of the cyberspace as place metaphor and the fact that courts have already started down the wrong road, I suggest that courts and commentators who think seriously about the nature of the Internet still have ample room to make reasoned policy decisions. Though we may easily be misled by metaphor, we need not be its slaves.
Keywords: cyberspace, metaphor, trespass to chattels, eBay v. Bidder's Edge
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