IP: The Hot New Field of Cyberlaw Is Just Hokum, Skeptics Argue

[Dave Farber <dave () farber net>]

http://online.wsj.com/article_print/0,,SB1025481262421276800,00.html


The Wall Street Journal

July 1, 2002
BOOM TOWN
By LEE GOMES


The Hot New Field of Cyberlaw
Is Just Hokum, Skeptics Argue


Is there really a cyberspace full of "cybercitizens" who need only be
accountable to their own "cyberlaws"? A loose-knit group of law professors
is bucking one of the big fads in the legal field by calling that whole
idea "cybersilly."

Law involving the online world is hot right now. Law schools trying to stay
current have courses in it, which tend to be popular with a generation of
law students reared on Wired magazine and Napster. Experts in so-called
cyberlaw typically have technology-friendly legal views, and are thus
frequent guests at the tech world's many conferences. They're also quoted
all the time in media accounts of online legal disputes.
Cyberskeptic or buff? Write to Lee Gomes at lee.gomes@wsj.com1

There is, though, a much less well-known but equally determined group of
legal experts -- let's call them the "cyberskeptics" -- who are deeply
troubled by just about everything about this trend. The skeptics start by
questioning the very existence of cyberspace, which they say is no more
real than a "phone space" involving all the people on the telephone at a
given time. They go on to argue that something happening online shouldn't
be treated any differently by the law than if it occurred on Main Street.

You can usually find the skeptics in law journals rather than at tech
conferences. Orin S. Kerr, of George Washington University Law School, for
example, is wary of courts looking at Internet legal issues from the
perspective of users, who may indeed think of themselves as cavorting about
in cyberspace. A more productive approach, he says, might be to look at
what is happening in the real world, where one usually simply finds a group
of computers connected to each other and passing along data.

Timothy Wu, a professor at the University of Virginia School of Law, writes
that there is no single Internet, but instead, many different Internet
applications that all need to be discussed differently.

Jack Goldsmith, of the University of Chicago law school, defends a decision
two years ago by a French judge who said that Yahoo couldn't sell Nazi
memorabilia in France, which bans the material. Netizens pounced on the
ruling as an affront to their brave new digital world. But Prof. Goldsmith
says that Yahoo, since it has a subsidiary in France, should no more be
immune to French laws than General Motors is.

More importantly, he says, the French judge went through with the ruling
only after determining that it was feasible, through various screening
technologies, for Yahoo to prevent its French visitors from seeing the ads
but still display them to others.

While the skeptics emphasize different points, they all have as a core
principle a rejection of the notion of "Internet exceptionalism," or the
idea that the Internet is a new, unique thing that requires its own special
laws. "The steam engine ... probably transformed American law, but the 'law
of the steam engine' never existed," writes Joseph H. Sommer, counsel at
the Federal Reserve Bank of New York, in a law review article called
"Against Cyberlaw." He also fretted that the cyberbuffs are afflicted with
"insufficient perspective, disdain for history, unnecessary futurology and
technophilia."

The skeptics have no particular beef with computer and Internet technology.
Most, in fact, are avid users. They just think that it shouldn't be
pandered to. And they certainly deride the ideas behind the "Declaration of
Independence of Cyberspace," which is posted on many Web sites and poses a
"hands off" challenge to government.

The dispute between the buffs and the skeptics doesn't have the usual
left-right overlay to it. The skeptics tend to be Republican but come from
both sides of the spectrum.

A better question, perhaps, involves the politics of the cyberspacians --
not their defenders in law schools as much as the cyberactivists
themselves. Many observers assume them to be politically progressive,
beyond their obvious libertarianism.

But are they really? Prof. Wu thinks not, calling them deeply technocratic
and elitist despite their populist rhetoric. And most of the activists
continue to see the Internet as a utopian ideal -- despite the fact that
many progressives are beginning to worry that the Web is really just a very
efficient way for companies to move white-collar U.S. jobs overseas.

Prof. Goldsmith says that most law professors are becoming increasingly
wary of the legal claims being made for cyberspace. But what about his
students? Well, he concedes, they're another matter. Many of them, with the
passion of youth, are still enthralled with the whole idea of a separate
universe, one they can call their own.

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