money, as well as cruelty to animals, food regulation, manufacturing of brushe and toupees(made of horsehair ) Instead, he suggested, we should look at olr u main historical categories and adjust them to the horse situation. Another commentator made a similar argument Nonetheless. the commentator wrote cyberspace does have a special place, citing William Blake To see a World in a grain of Sand And a heaven in a Wild Flo Hold Infinity in the palm of your hand And Eternity in an hour Whether Internet law will remain the grain of sand or grow to become a world of its own depends on our capacities for finding the materials and the way we remember and relate different contexts. Treatises on the legal problems concerning Telegraph and Trains have sprung up and disappeared as the general laws of torts and contracts and rate regulation have been adjusted to take into account these special situations. Statutes and their judicial gloss augmented common law solutions In contrast, securities regulation, the regulation of investment management, and antitrust law have become permanent categories of special ituations-the laws of certain horses. While they touch on fundamental areas and are composed of the common law and legislation, the materials are organized and compiled under their specific names. To avoid repetition those areas of the special laws leave out the"general categories" that can be regulated within those categories, such as usual tort, contract, and corporate law, and keeping those rules which adjust contract, tort, and corporate law to the particular context. For example, contract common law applies to the agreements between advisers and mutual funds. But in addition and superimposed on the law is section 15 of the ld.at207-08 Joseph A Sommer, Against Cyberlav, 15 BERKELEY TECH. L.J. 1145, 1147(2000)(Very few bodies of law are defined by their characteristic technologies. Tort law is not the law of the automobile.”) 5 Id. at 1231 The future may also depend on the extent to which the context, approach, institutional structures and common principles will underlie decisions concerning cy berspace and legislation relating to it. I owe these points to Professor Nicola Lugaresi, University of Bologna, Bologna, Italy, who expressed them to an Internet discussion group "Cyberprof on March 2, 2001(the common denominator of internet issues may also include common"presuppositions"e.g,"distanc interaction, architecture, geographic locus(Weinberg); control( Chichester); anonymity information tracking; changes in politics and institutions; and lowered costs(Swire); or, at a different level, socially [sic] constructions of space,, property and identity; "unbundling libertaniarism [sic], friendly or challenging( Boyle); regulation of information(Ku)) 7 One reason for the classification may have been the comprehensive statutory regulation.Another eason may be that the context is sufficiently unique to give rise to unique and cohesive jurisprudence and enforcement institutions. Putting them under the umbrella of" contract woul not have helped. Impersonal agreements among the parties through intermediaries reduced the parties face to face bargaining protections. Internal rules of syndicates and exchanges failed to maintain efficient operations and public trust
4 money,3 as well as cruelty to animals, food regulation, manufacturing of brushes and toupees (made of horsehair). Instead, he suggested, we should look at our main historical categories and adjust them to the horse situation. Another commentator made a similar argument.4 Nonetheless, the commentator wrote, cyberspace does have a special place, citing William Blake: “To see a World in a Grain of Sand And a Heaven in a Wild Flower, Hold Infinity in the palm of your hand And Eternity in an hour.”5 Whether Internet law will remain the grain of sand or grow to become a world of its own depends on our capacities for finding the materials and the way we remember and relate different contexts.6 Treatises on the legal problems concerning Telegraph and Trains have sprung up and disappeared as the general laws of torts and contracts and rate regulation have been adjusted to take into account these special situations. Statutes and their judicial gloss augmented common law solutions. In contrast, securities regulation, the regulation of investment management, and antitrust law have become permanent categories of special situations—the laws of certain horses.7 While they touch on fundamental areas, and are composed of the common law and legislation, the materials are organized and compiled under their specific names. To avoid repetition those areas of the special laws leave out the “general categories” that can be regulated within those categories, such as usual tort, contract, and corporate law, and keeping those rules which adjust contract, tort, and corporate law to the particular context. For example, contract common law applies to the agreements between advisers and mutual funds. But in addition and superimposed on the law is section 15 of the 3 Id. at 207-08. 4 Joseph A. Sommer, Against Cyberlaw, 15 BERKELEY TECH. L.J. 1145, 1147 (2000) (“Very few bodies of law are defined by their characteristic technologies. Tort law is not ‘the law of the automobile.’”). 5 Id. at 1231. 6 The future may also depend on the extent to which the context, approach, institutional structures and common principles will underlie decisions concerning cyberspace and legislation relating to it. I owe these points to Professor Nicola Lugaresi, University of Bologna, Bologna, Italy, who expressed them to an Internet discussion group “Cyberprof” on March 2, 2001 (the common denominator of internet issues may also include common “presuppositions” e.g., “distance, interaction, architecture, geographic locus (Weinberg); control (Chichester); anonymity; information tracking; changes in politics and institutions; and lowered costs (Swire); or, at a different level, socially [sic] constructions of space,; property and identity; “unbundling”; libertaniarism [sic], friendly or challenging (Boyle); regulation of information (Ku)”). 7 One reason for the classification may have been the comprehensive statutory regulation. Another reason may be that the context is sufficiently unique to give rise to unique and cohesive jurisprudence and enforcement institutions. Putting them under the umbrella of “contract” would not have helped. Impersonal agreements among the parties through intermediaries reduced the parties face to face bargaining protections. Internal rules of syndicates and exchanges failed to maintain efficient operations and public trust
Investment Company Act of 1940, which imposes rules that apply only to such contracts Cyberlaw may not be one of these specialized categories because it touches many fundamental categories of law. Perhaps what will develop shallow, but important, generalized cyberlaw containing considerations, approaches, and ways of analysis-a new type of conceptual generalization composed of accepted interpretative and adjusting rules that apply to all areas the law when they relate to the Internet. My main point here is that by noting delightful new playground for old games, g oo crete area of law. At least not now. But this does not mean that cyberspace and law is an unnatural combination, or is unworthy of study. Quite the contrary: Cyberspace is a B. HOW DO COURTS ADDRESS ISSUES THAT INVOLVE THE NTERNET? 1. Following the markets and parties'intent A review of the decisions uncovers few innovations or surprises. Some courts resort to policies more than others, implicitly or explicitly. There are judges who look to the“ markets” and the parties'intent” for guidance. As one new environment but from lack of clarity of the general principles in t om the commentator argued, the problems regarding the Internet do not stem fro traditional particular area. Since no one knows how to prescribe better general laws, he suggests that courts "make rules clear; create property rights where now there are none, and facilitate the formation of bargaining institutions. Then let the world of cyberspace evolve as it will, and enjoy the benefits I am skeptical. This wonderfully simple guide is not easy to follow even if the contracts are explicit. It becomes speculative when the contracts are implied While the courts should pay attention to agreements among private parties the agreements are less clear than the laws some of them are not even rendered in writing, the language of signs often supplements such agreements, but the signs isappear or are misinterpreted. I will agree that the law is unclear. I doubt whether contracts are the general guides for the lay Besides. not all contract-based rules should be followed some contracts may conflict with legislative agendas and overall social good. Most importantly common law courts follow precedents and statutory rules of interpretation, not all of which are contract-based. Even policy-contract-oriented judges seek precedents to support their theories. I therefore view common law precedents or statutes and 815USC.§80a-5(1994) ler, supra note 4, at 12 Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 21
5 Investment Company Act of 1940, which imposes rules that apply only to such contracts.8 Cyberlaw may not be one of these specialized categories because it touches many fundamental categories of law. Perhaps what will develop is a shallow, but important, generalized cyberlaw containing considerations, approaches, and ways of analysis -- a new type of conceptual generalization composed of accepted interpretative and adjusting rules that apply to all areas of the law when they relate to the Internet. My main point here is that by noting Internet law I am not suggesting that it forms a discrete area of law. At least not now. “But this does not mean that cyberspace and law is an unnatural combination, or is unworthy of study. Quite the contrary: Cyberspace is a delightful new playground for old games.”9 B. HOW DO COURTS ADDRESS ISSUES THAT INVOLVE THE INTERNET? 1.Following the markets and parties’ intent A review of the decisions uncovers few innovations or surprises. Some courts resort to policies more than others, implicitly or explicitly. There are judges who look to the “markets” and the “parties’ intent” for guidance. As one commentator argued, the problems regarding the Internet do not stem from the new environment but from lack of clarity of the general principles in the traditional particular area. Since no one knows how to prescribe better general laws, he suggests that courts “make rules clear; create property rights where now there are none; and facilitate the formation of bargaining institutions. Then let the world of cyberspace evolve as it will, and enjoy the benefits.” 10 I am skeptical. This wonderfully simple guide is not easy to follow even if the contracts are explicit. It becomes speculative when the contracts are implied. While the courts should pay attention to agreements among private parties the agreements are less clear than the laws, some of them are not even rendered in writing, the language of signs often supplements such agreements, but the signs disappear or are misinterpreted. I will agree that the law is unclear. I doubt whether contracts are the general guides for the law. Besides, not all contract-based rules should be followed; some contracts may conflict with legislative agendas and overall social good. Most importantly, common law courts follow precedents and statutory rules of interpretation, not all of which are contract-based. Even policy-contract-oriented judges seek precedents to support their theories. I therefore view common law precedents or statutes and 8 15 U.S.C. § 80a-15 (1994). 9 Sommer, supra note 4, at 1231. 10 Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 216
their judicial gloss as the source of law addressing issues concerning cyberspace 2.Analogies The courts' choices of precedents depend on what they analogize to They may analogize to the facts of the cases, or to the applicable legal principles These approaches are demonstrated in the case of the freelancers copyrights Freelance authors sell their writings to publishers but retain the copyright materials may republish the materials under a"privilege"to "reproduce"and l ed to these pieces. Under copyright law, publishers who have purchased copyrigh distribute" the writings as part of a larger whole. For example, publishers may reproduce their periodicals, which include the copyrighted freelancer materials When electronic databases appeared on the scene, courts have held that the ublishers' privilege does not apply to electronic republication In Tasini v. New York Times Co. the defendant publisher reproduced freelancers' pieces in NEXIS--a very large electronic database--and in a CD- ROM. The question was whether these computer versions were privileged. The District Court held that they were so privileged. The Second Circuit reversed, 4 and the Supreme Court affirmed the Circuit Courts decision. The privilege does not cover these new circumstances The interesting point, for our purpose, is the courts use of analogies. The District Court sought an analogy to legal principles. It first determined whether the database constituted an infringement of the freelancers copyrights, and then whether the database was privileged as a"revision"of the copyrighted materials Since the distinguishing features of the original periodicals were retained in the database the court considered whether these aspects were preserved electronically and held that the selected articles were included in the periodicals were substantially similar" to the electronic version. Infringement was established Then, the court turned to the privilege, and held that the electronic reproduction was a"revision "to which the publishers privilege applied. The question, said the court, was"whether the electronic reproductions retain enough of defendant periodicals to be recognizable as versions of those periodicals. "Noting that the NEXIS database retained the publishers' original selection of articles, the court I agree that these sources are affected by and may incorporate the parties'intentions express or See Wendy J. Gordon, Fine-Tuning Tasini: Privileges of Electronic Distribution and Reproduction, 66 BROOKLYN L REV. 473, 477-80(2000) Tasini v N.Y. Times Co., 972 F Supp. 804(SD N.Y. 1997), rev d, 206 F 3d 161(2dCir. 999,ad, 4 Tasini v N.Y. Times Co., 206 F 3d 161(2d Cir. 1999), aff'd, 121 S Ct 2381(2001) N.Y. Times Co v. Tasini, 121 S Ct 2381 (2001) Id at 82 72 F Supp. at 821-25. 6
6 their judicial gloss as the source of law addressing issues concerning cyberspace.11 2.Analogies The courts’ choices of precedents depend on what they analogize to. They may analogize to the facts of the cases, or to the applicable legal principles. These approaches are demonstrated in the case of the freelancers’ copyrights. Freelance authors sell their writings to publishers but retain the copyright to these pieces. Under copyright law, publishers who have purchased copyrighted materials may republish the materials under a “privilege” to “reproduce” and to “distribute” the writings “as part of a larger whole.” For example, publishers may reproduce their periodicals, which include the copyrighted freelancer materials.12 When electronic databases appeared on the scene, courts have held that the publishers’ privilege does not apply to electronic republication. In Tasini v. New York Times Co. the defendant publisher reproduced freelancers’ pieces in NEXIS -- a very large electronic database -- and in a CDROM. The question was whether these computer versions were privileged. The District Court held that they were so privileged.13 The Second Circuit reversed,14 and the Supreme Court affirmed the Circuit Court’s decision.15 The privilege does not cover these new circumstances. The interesting point, for our purpose, is the courts’ use of analogies. The District Court sought an analogy to legal principles. It first determined whether the database constituted an infringement of the freelancers’ copyrights, and then whether the database was privileged as a “revision” of the copyrighted materials. Since the distinguishing features of the original periodicals were retained in the database the court considered whether these aspects were preserved electronically and held that the selected articles were included in the periodicals were “substantially similar”16 to the electronic version.17 Infringement was established. Then, the court turned to the privilege, and held that the electronic reproduction was a “revision” to which the publishers’ privilege applied. The question, said the court, was “whether the electronic reproductions retain enough of defendants’ periodicals to be recognizable as versions of those periodicals.” Noting that the NEXIS database retained the publishers’ original selection of articles, the court 11 I agree that these sources are affected by and may incorporate the parties’ intentions express or implied. 12 See Wendy J. Gordon, Fine-Tuning Tasini: Privileges of Electronic Distribution and Reproduction, 66 BROOKLYN L. REV. 473, 477-80 (2000). 13 Tasini v. N.Y. Times Co., 972 F. Supp. 804 (S.D.N.Y. 1997), rev’d, 206 F.3d 161 (2d Cir. 1999), aff’d, 121 S. Ct. 2381 (2001). 14 Tasini v. N.Y. Times Co., 206 F.3d 161 (2d Cir. 1999), aff’d, 121 S. Ct. 2381 (2001). 15 N.Y. Times Co. v. Tasini, 121 S. Ct. 2381 (2001). 16 Id. at 822. 17 972 F. Supp. at 821-25