BOSTON UNIVERSITY SCHOOL OF LAW WORKING PAPER SERIES. PUBLIC LAW LEGAL THEORY WORKING PAPER NO 01-21 THE COMMON LAW AND CYBERSPACE TAMAR FRANKEL This paper can be downloaded without charge at The Boston University School of Law Working Paper Series Index http://www.bu.edu/law/faculty/papers The Social Science Research Network Electronic Paper Collection http://papers.ssrn.com/abstract=292614
BOSTON UNIVERSITY SCHOOL OF LAW WORKING PAPER SERIES, PUBLIC LAW & LEGAL THEORY WORKING PAPER NO. 01-21 THE COMMON LAW AND CYBERSPACE TAMAR FRANKEL This paper can be downloaded without charge at: The Boston University School of Law Working Paper Series Index: http://www.bu.edu/law/faculty/papers The Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/abstract=292614
The Common Law and cyberspace Tamar Frankel The subject is about the common law under stress of change. The common law has continuously confronted stressful change. Internet conflicts raise the same value issues with which we are familiar.. The Internet environment poses unusual pressures on the common law system. It is a system that transcends boundaries and time as we never had before. By reducing significantly the cost of receiving and disseminating information the Internet has shifted benefits costs and disadvantages The internet touches almost all areas of life. To those who suggest that the common law has lost its vitality, Internet jurisprudence offers a powerful rebuttal. United States courts have demonstrated th viability and strength of the common law. Internet issues have also highlighted the common law's limitations, shown in part by the legislative initiatives in this area The questions are: First, are we witnessing the emergence of the "Law of the Internet or Cyberlaw?"I believe that we are not. But there are few exceptions, such as issues concerning domain names. Second, how do the courts address Internet issues? I suggest that usually there is nothing new in their approach. They resort to precedents, and use somewhat different choices of analogies. Courts may err in how they view the interne While the technical aspects of the system-the code and protocols-are identical in all respects, the impact of the Internet on various aspects of our lives may differ greatly. A code-based rule may bring unacceptable consequences that must later be corrected. The paper contains a number of stories to illustrate these propositions Third, are there cases demonstrating the common law's limitation? I believe there are These limitations appear, for example, in cases concerning domain names and Congress initiates legislation for a number of reasons. Among these reasons are the trademarks Fourth. under what conditions will Congress overrule the courts decisio courts decisions that have strayed away from the policies that power constituencies have agreed upon. Nonetheless, judicial decisions play a role in the legislation. They help narrow the issues that Congress will address and sometimes help to set the The sum and substance of this paper is in praise of common law and its interaction with legislation as an overall system of muddling through. Law is evolving piecemeal addressing particular conflicts, not al ways uniformly nor predictably Specificity with respect to select issues. generality to show overall direction and guide interpretations This kind of lawmaking is for the risk-averse -of which i am one. Piecemeal solutions reduce the risk of mistakes and the cost of correcting mistakes when they occur-as they are bound to occur. The price higher learning costs and fewer clear, bright-line and predictable laws
The Common Law and Cyberspace Tamar Frankel Abstract The subject is about the common law under stress of change. The common law has continuously confronted stressful change. Internet conflicts raise the same value issues with which we are familiar. . . The Internet environment poses unusual pressures on the common law system. It is a system that transcends boundaries and time as we never had before. By reducing significantly the cost of receiving and disseminating information the Internet has shifted benefits, costs, and disadvantages. The Internet touches almost all areas of life. To those who suggest that the common law has lost its vitality, Internet jurisprudence offers a powerful rebuttal. United States courts have demonstrated the viability and strength of the common law. Internet issues have also highlighted the common law’s limitations, shown in part by the legislative initiatives in this area. The questions are: First, are we witnessing the emergence of the “Law of the Internet” or “Cyberlaw?” I believe that we are not. But there are few exceptions, such as issues concerning domain names.. Second, how do the courts address Internet issues? I suggest that usually there is nothing new in their approach. They resort to precedents, and use somewhat different choices of analogies. Courts may err in how they view the Internet. While the technical aspects of the system – the code and protocols – are identical in all respects, the impact of the Internet on various aspects of our lives may differ greatly. A code-based rule may bring unacceptable consequences that must later be corrected. The paper contains a number of stories to illustrate these propositions. Third, are there cases demonstrating the common law’s limitation? I believe there are. These limitations appear, for example, in cases concerning domain names and trademarks. Fourth, under what conditions will Congress overrule the courts’ decisions? Congress initiates legislation for a number of reasons. Among these reasons are the courts’ decisions that have strayed away from the policies that power constituencies have agreed upon. Nonetheless, judicial decisions play a role in the legislation. They help narrow the issues that Congress will address and sometimes help to set the congressional agendas. The sum and substance of this paper is in praise of common law and its interaction with legislation as an overall system of “muddling through.” Law is evolving piecemeal, addressing particular conflicts, not always uniformly nor predictably. Specificity with respect to select issues. Generality to show overall direction and guide interpretations. This kind of lawmaking is for the risk-averse -- of which I am one. Piecemeal solutions reduce the risk of mistakes and the cost of correcting mistakes when they occur—as they are bound to occur. The price: higher learning costs and fewer clear, bright-line and predictable laws
C 2001 All rights reserved. No part of this paper may be reproduced or cited without the permission of the author DRAFT THE COMMON LAW AND CYBERSPACE Tamar frankel Me realize that attempting to apply established trademark law in the fast-developing world of the internet is somewhat like trying to board a moving bus. Judge Van Graafeiland in Bensusan Restaurant Corp v. King, 126 F3d 25, 27(2d Cir. 1997) INTRODUCTION My subject, the common law and cyberspace, may raise eyebrows. How are the two connected? I say that they are well connected The subject is about the common law under stress of change A system reveals its true strengths and weaknesses under stress common law has continuously confronted stressful change. Courts have centuries mediated among new and novel conflicting interests and values. This is their job Internet conflicts raise the same value issues with which we are familiar The criteria for good and evil have remained virtually unchanged, perhaps with the exception of the value of the Internet itself. There are hardly any new kinds of conflicts that could not have arisen but for the internet. It seems however that Professor of Law, Boston University School of Law. I am indebted to Dean Ronald Cass, and Professors Ward Farnsworth, Gary Lawson, and Michael Meurer, for the very helpful comments on this article. Many thanks to Basil Yanakakis, Esq. for the financial support in the preparation of this article. many thanks to Katherine heid and bill hecker for their valuable research Because domain names have acquired a very special position on the Internet, a somewhat new type of conflict has surfaced between the owners of domain and trademark maintaining Internet infrastructure requires unique names. No two persons or institutions can have the same name. In addition, name recognition has become far more important in Internet domain names colliding head-on with the rights of trademark holders. Technology enables competitors to divert customers to their own web sites by tagging on the names of others, raising the same issues with far more serious results. Ease of copying copyrighted materials has changed the balance
1 c. 2001 All rights reserved. No part of this paper may be reproduced or cited without the permission of the author. D R A F T THE COMMON LAW AND CYBERSPACE Tamar Frankel• “[W]e realize that attempting to apply established trademark law in the fast-developing world of the internet is somewhat like trying to board a moving bus.” Judge Van Graafeiland in Bensusan Restaurant Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997). INTRODUCTION My subject, the common law and cyberspace, may raise eyebrows. How are the two connected? I say that they are well connected. The subject is about the common law under stress of change. A system reveals its true strengths and weaknesses under stress. The common law has continuously confronted stressful change. Courts have for centuries mediated among new and novel conflicting interests and values. This is their job. Internet conflicts raise the same value issues with which we are familiar. The criteria for good and evil have remained virtually unchanged, perhaps with the exception of the value of the Internet itself. There are hardly any new kinds of conflicts that could not have arisen but for the Internet.1 It seems, however, that • Professor of Law, Boston University School of Law. I am indebted to Dean Ronald Cass, and Professors Ward Farnsworth, Gary Lawson, and Michael Meurer, for the very helpful comments on this article. Many thanks to Basil Yanakakis, Esq. for the financial support in the preparation of this article. Many thanks to Katherine Heid and Bill Hecker for their valuable research. 1 Because domain names have acquired a very special position on the Internet, a somewhat new type of conflict has surfaced between the owners of domain names and trademark owners. Maintaining Internet infrastructure requires unique names. No two persons or institutions can have the same name. In addition, name recognition has become far more important in Internet domain names colliding head-on with the rights of trademark holders. Technology enables competitors to divert customers to their own web sites by tagging on the names of others, raising the same issues with far more serious results. Ease of copying copyrighted materials has changed the balance
the Internet environment poses unusual pressures on the common law system and never experienced before. By reducing significantly the cost of receiving and a special challenge to the courts. Its new technology has offered a global outre disseminating information the internet has shifted benefits. costs and disadvantages Through the Internet we can conclude transactions more efficiently, and that is good, but our personal information is more easily accessible, forged and stolen. Knowledge and enriching materials are at anyone's fingertips, but so are hate speech and fraudulent securities offerings. The reach of web sites is global and this is good but that can subject everyone who disseminates information on the web to the blanket jurisdiction of courts every where, undermining the current limits on personal and subject matter jurisdiction. Further, cyber touching almost all areas of life. It is increasingly difficult to escape it. As it becomes more inhabited, those outside the space will lead the existence of exiles To those who suggest that the common law has lost its vitality, Internet jurisprudence offers a powerful rebuttal. United States courts have demonstrated the viability and strength of the common law. Internet issues have also highlighted the common law's limitations, shown in part by the legislative initiatives in this area. But the story does not end with legislation. The need for interpretation paves the way back to the courts, and on occasion ricochets back to the legislature. Internet cases demonstrate vividly not only how the common law works but also how the courts and the legislatures interact My talk will focus on the following questions First, are we witnessing the emergence of the Law of the Internet "or "Cyberlaw? "I believe that we are not. But there are few exceptions Second how do the courts address issues that involve the internet? l suggest that usually there is nothing new in their approach. They resort to precedents as they traditionally have, and use somewhat different choices of analogies, as they traditionally have Courts may err in how they view the Internet. While the technical aspects of the system-the code and protocols-are identical in all respects, the impact of the Internet on various aspects of our lives may differ greatly. A code-based rule may bri must later be corrected. I will tell a number of stories as examples of these propositions Third, are there cases demonstrating the common law's limitation? I believe there are. These limitations will be demonstrated by cases concerning domain names and trademarks between private and public spheres of intellectual property. It exposes copyright holders to far more losses than before. However, self-protecting contracts by copyright owners pits contract freedom and copyright entitlements against the public sphere of intellectual property and United States constitutional rig 2
2 the Internet environment poses unusual pressures on the common law system and a special challenge to the courts. Its new technology has offered a global outreach never experienced before. By reducing significantly the cost of receiving and disseminating information the Internet has shifted benefits, costs, and disadvantages. Through the Internet we can conclude transactions more efficiently, and that is good, but our personal information is more easily accessible, forged and stolen. Knowledge and enriching materials are at anyone’s fingertips, but so are hate speech and fraudulent securities offerings. The reach of web sites is global, and this is good, but that can subject everyone who disseminates information on the web to the blanket jurisdiction of courts everywhere, undermining the current limits on personal and subject matter jurisdiction. Further, cyberspace is touching almost all areas of life. It is increasingly difficult to escape it. As it becomes more inhabited, those outside the space will lead the existence of exiles. To those who suggest that the common law has lost its vitality, Internet jurisprudence offers a powerful rebuttal. United States courts have demonstrated the viability and strength of the common law. Internet issues have also highlighted the common law’s limitations, shown in part by the legislative initiatives in this area. But the story does not end with legislation. The need for interpretation paves the way back to the courts, and on occasion ricochets back to the legislature. Internet cases demonstrate vividly not only how the common law works, but also how the courts and the legislatures interact. My talk will focus on the following questions: First, are we witnessing the emergence of the “Law of the Internet” or “Cyberlaw?” I believe that we are not. But there are few exceptions. Second, how do the courts address issues that involve the Internet? I suggest that usually there is nothing new in their approach. They resort to precedents as they traditionally have, and use somewhat different choices of analogies, as they traditionally have. Courts may err in how they view the Internet. While the technical aspects of the system – the code and protocols – are identical in all respects, the impact of the Internet on various aspects of our lives may differ greatly. A code-based rule may bring unacceptable consequences that must later be corrected. I will tell a number of stories as examples of these propositions. Third, are there cases demonstrating the common law’s limitation? I believe there are. These limitations will be demonstrated by cases concerning domain names and trademarks. between private and public spheres of intellectual property. It exposes copyright holders to far more losses than before. However, self-protecting contracts by copyright owners pits contract freedom and copyright entitlements against the public sphere of intellectual property and United States constitutional rights
Fourth. under what conditions will Congress overrule the decisions? Congress initiates legislation for a number of reasons. Among these reasons are the courts' decisions that have strayed away from the policies that power constituencies have agreed upon. Nonetheless, judicial decisions play a ole in the legislation. They help narrow the issues that Congress will address and ometimes help to set the congressional agendas the law. Should the law be specific or general? And who should make the law? of The last two questions are age-old normative questions about the design of The sum and substance of my talk is in praise of common law and its interaction with legislation as an overall system of"muddling through. No specific guidelines are enunciated, and no general policies of law are declared B grandiose plans laced with minute details are laid out. No overall principles wit except to point the directions. Instead, the law is evolving piecemeal, addressing particular conflicts, not al ways uniformly nor predictably. Specificity with respect to select issues. Generality to show overall direction and guide interpretations Both the courts and the legislature make the law, each guided by its own institutional structure and domain. The movement of lawmaking among them is legislature. The legislature, tending to the general, affect the specificity of the interesting because the courts, tending to the specific affect the generality of th courts. i believe that each mutes the other 's movement to the extreme This kind of lawmaking is for the risk-averse --of which i am one Piecemeal solutions reduce the risk of mistakes and the cost of correcting mistakes when they occur-as they are bound to occur. To be sure, this method raises learning costs for the practitioners and consequently the cost for clients. But it reduces for clients the risk of a law that may seriously impede their operations long-term. I believe that, overall, the common law muddling through costs less and is safe To be sure, it would be nice to have clear, bright-line and predictable laws L, and many others, doubt whether that is possible. The second-best would be small retractable steps rather than a fully detailed map-the plan with capital P- that is more rigid. If all steps must fit, they lose the necessary flexibility to adjust to a fast-changing environment and law becomes a stranglehold if enforced and dead letter. if not enforced A. ARE WE WITNESSING THE EMERGENCE OF THE "LAW OF THE NTERNET? A University of Chicago Law School dean branded the classification of Internet law as the "law of the horse " Such a classification he said would produce a shallow understanding of law. It would cover the subject matter of a horse under the laws of contract, tort, crime, racing, efforts to collect prize Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996U CHI LEGAL F 207, 207
3 Fourth, under what conditions will Congress overrule the courts’ decisions? Congress initiates legislation for a number of reasons. Among these reasons are the courts’ decisions that have strayed away from the policies that power constituencies have agreed upon. Nonetheless, judicial decisions play a role in the legislation. They help narrow the issues that Congress will address and sometimes help to set the congressional agendas. The last two questions are age-old normative questions about the design of the law. Should the law be specific or general? And who should make the law? The sum and substance of my talk is in praise of common law and its interaction with legislation as an overall system of “muddling through.” No grandiose plans laced with minute details are laid out. No overall principles with specific guidelines are enunciated, and no general policies of law are declared except to point the directions. Instead, the law is evolving piecemeal, addressing particular conflicts, not always uniformly nor predictably. Specificity with respect to select issues. Generality to show overall direction and guide interpretations. Both the courts and the legislature make the law, each guided by its own institutional structure and domain. The movement of lawmaking among them is interesting because the courts, tending to the specific affect the generality of the legislature. The legislature, tending to the general, affect the specificity of the courts. I believe that each mutes the other’s movement to the extreme. This kind of lawmaking is for the risk-averse -- of which I am one. Piecemeal solutions reduce the risk of mistakes and the cost of correcting mistakes when they occur—as they are bound to occur. To be sure, this method raises learning costs for the practitioners and consequently the cost for clients. But it reduces for clients the risk of a law that may seriously impede their operations long-term. I believe that, overall, the common law muddling through costs less and is safer. To be sure, it would be nice to have clear, bright-line and predictable laws. I, and many others, doubt whether that is possible. The second-best would be small retractable steps rather than a fully detailed map—the plan with capital P— that is more rigid. If all steps must fit, they lose the necessary flexibility to adjust to a fast-changing environment, and law becomes a stranglehold if enforced, and a dead letter, if not enforced. A. ARE WE WITNESSING THE EMERGENCE OF THE “LAW OF THE INTERNET?” A University of Chicago Law School dean branded the classification of Internet law as the “law of the horse.” Such a classification, he said, would produce a shallow understanding of law.2 It would cover the subject matter of a horse under the laws of contract, tort, crime, racing, efforts to collect prize 2 Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 207