JEFFERSON'S MOOSE AND THE LAW OF CYBERSPACE - PART II

By DAVID G. POST


[Illustration]

In Which A Law Professor Takes Us Back Two Centuries To Think About The 21st

Editors' note: We are pleased to publish, in two parts, an article by noted cyberspace scholar David Post. Breaking with our usual format of relatively brief pieces, each of the two parts will be nearly 2,000 words long. Part I was posted on Monday, August 7th. Today, we post the second part.

Old World Or New?

I ended the first half of this essay pondering the legal rules that might apply both to "smuggling" property from the Old World (such as music from Metallica) into the New World, and to claiming property in the New World (domain names), particularly when that property has a tie to the Old World (for instance, the domain name Exxon-mobil.com).

One of the reasons I have troubling thinking about these questions is that I'm not sure whether cyberspace is a "new place" or not. It makes a difference. For if it is, it is no longer so obvious that these "deeds" to cyberspace domains are valid, is it? Imposing "rights" on those who have never heard of them or consented to their validity smacks a little of colonialism, does it not?

After all, Lord Baltimore, too, had a deed -- a perfectly lawful instrument signed by the King of England giving him exclusive rights to a huge chunk of land, everything from the Chesapeake Bay to the headwaters of the Potomac. But because this was a new place, we asked: What gave the King the right to give away parts of it in that way? Did the inhabitants of America have to honor that deed? Have the "inhabitants" of cyberspace decided the extent to which they want to recognize these pre-existing rights? Where and when did that happen?

And thinking about cyberspace as a "new place" makes one think about the "smuggling" I mentioned a little differently, too. Just for a little perspective, "smuggling" copyrighted works into New places has a long and rather distinguished pedigree. Indeed, we did a lot of it ourselves when we were a New Place. For the first 100 years of our existence, bringing copyrighted works across the U.S. border and redistributing them to your heart's content was not "smuggling" at all, because it violated no law. Dickens (and other British authors, especially) complained bitterly about the way their works could be freely copied and shared in the New World.

The U.S. and Britain eventually worked that out, of course. In the mid- and late nineteenth century, American authors -- Hawthorne, Melville and Emerson foremost among them -- began to complain that their livelihoods were threatened by the absence of protection of their works overseas. And thus, in 1891, the American people, acting through their elected representatives, came to express the view that it was no longer in their interest to allow this free movement of works into the United States to go on. The U.S. Copyright Act was finally amended that year to provide for recognition of the rights of foreign authors (at least, the copyrights of authors from those countries that recognized the copyrights of our authors).

So if I'm trying to solve the "Napster problem," my first thought is not "how can I make copyright law stronger so that I can stop this smuggling?" Rather, it is: how might we get the inhabitants of cyberspace to see that it is in their interest to limit the movement of copyrighted works across their border with the real world? How we might build institutions in cyberspace through which those inhabitants might express and implement that view?

Jefferson brought the moose to Paris because there was a serious scientific debate raging in the eighteenth century about whether the New World was a degenerate place. The dominant scientific view at the time was that the native animals in the New World were smaller than those in the Old, that domestic animals actually got smaller if they were transported to the New World, and that the New World had smaller numbers of animal and plant species than the Old.

They didn't know what it was -- the New World was too humid? Too cold? -- but there was something about the place that took away the Life Force.

So out comes the moose. The moose was part of Jefferson's campaign to show that this particular New World was not a degenerate place. Sometimes a picture -- or, better yet, a carcass -- is worth a thousand words. The moose is a big animal, larger by a considerable margin than its European counterparts (the reindeer and caribou). Its brooding presence in downtown Paris was intended to make observers think twice about the degeneracy theory. Degenerate animals in the New World? Just check out that moose! (Jefferson went on to write a meticulously detailed refutation of the degeneracy theory in his only published book, "Notes on the State of Virginia," which carefully analyzed the relative sizes of numerous American and European animals.)

But it was not just a debate about the relative sizes of the quadrupeds that brought the moose to Paris. The degeneracy of animals in America is indeed within one step of the degeneracy of the man of Europe transplanted to America. There were, in other words, serious political implications of the degeneracy theory. To Jefferson, the boundaries between "science" and "politics" were never sharp, anyway.

Jefferson understood -- better, perhaps, than anyone before or since -- that natural history and politics are linked together at the deepest level; that social systems are natural systems, and that you cannot talk sensibly about how best to govern in a place until you understand the kind of life that can be lived there. If the New World really were a degenerate place, people would have a hard time building viable societies there. If forces "contrary to the enlargement of animal nature" in the New World were producing degenerate men and women, then surely those men and women were incapable of managing their own affairs. They would need guidance from the more vigorous inhabitants of the Old World to make their way in the New.

The degeneracy theory was, in Jefferson's view, just one part of a general campaign in the Old World to discredit the New World's claims to self-government, and to dissuade European peasants from moving to the New World to help build the new society that would flourish there. "The real motive," he wrote,

. . . is to discourage Emigrations. One half of Germany and more than half of England, Scotland, and Ireland would be soon on tiptoe, and no inconsiderable Part of France, to fly to America for relief from that intolerable load which they now carry on their shoulders, if they knew the true state of facts in America. The English Ministers and the whole hierarchy of their dependents are aware of this, and there is an incredible number of persons constantly employed in preparing paragraphs to represent the United States to be in a state of anarchy and misery.

So the moose was a kind of advertisement for New World. It had, figuratively speaking, a sign hanging around its neck: "Come to America -- see for yourself how degenerate life is there."

But in the final analysis, the moose was more than this, too. Jefferson used the moose to get his French friends to stand back, to gasp and to say: There really is a New World out there, one that has things in it that we can hardly imagine. He wanted them to have a moment of Aha! -- a flash of understanding about that New World from which Jefferson (and his moose) had emerged. He wanted them to share in his excitement about the possibilities inherent in this astounding new place.

good news. It meant that it was a place where we could think the unthinkable, re-evaluate the Received Wisdom and re-think the world in which we were to live. New Worlds present opportunities -- more than opportunities, imperatives -- to explore, to try to understand the ways in which they really are "new," to make them new. Later in his life Jefferson wrote:

We can no longer say there is nothing new under the sun. For this whole chapter in the history of man is new. The great extent of our Republic is new. Its sparse habitation is new. The mighty wave of public opinion which has rolled over it is new.

Our Own Moose

We need a lot more of Jefferson's attitude in cyberspace. Our first reaction to new things is often very different -- fear. It was certainly true then. Lots of people -- respectable and intelligent people -- genuinely feared what they'd find in the New World. And once they were there, they feared what might lie in waiting on the other side of the Alleghenies. The same is true now.

Sadly, we, as lawyers, are often the chosen instrument for expressing that fear, for exterminating the New in the name of serving the Old. It's an understandable reaction. It's even a very valuable one at times. But it was surely not Jefferson's reaction.

The first thing he would ask, and the first thing we should ask, about Napster is not whether it constitutes an infringement of copyright under Section 512 of the U.S. Copyright Act. Instead, it is whether, and how, it opens up new possibilities and new horizons for the human species and how we might help it do so.

Napster can be our moose. It can and should tempt us to explore this new place, to try to understand the ways in which it is different than (and the ways in which it is the same as) more familiar terrain. It can show us that there are new and wonderfully exciting things out there. It can and should remind us that we don't know everything there is to know about how life can be lived and about how societies can be built. That we, too, can always re-think Received Wisdom.

And it should remind us always to be on the lookout for modern versions of a "degeneracy theory" that attempts to devalue life in the New World for the purpose of establishing and maintaining dominion over it. The moose wandered all over New World land deeded by those in the Old World. Many, if not all, of those in the Old World who purported to own and to control the land in the New World over which the moose was wandering had no idea what a moose was or what a moose could do. They were often more interested in protecting the interests of those in the Old World, and thus adhering to the rules of that world, than starting fresh.

"Doubt," Jefferson wrote in connection with his moose escapade, "is wisdom. He is closer to the truth who believes nothing than he who believes what is wrong." Jefferson got it right. We need more doubt about law in cyberspace, fewer "answers" and more questions, fewer fences against, and more roads to, this new land. We cannot seriously hope to govern wisely here without it.

David Post is Associate Professor of Law at Temple University Law School, where he teaches intellectual property law and the law of cyberspace, and a Senior Fellow at the Tech Center at George Mason University Law School.

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