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

By DAVID G. POST


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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 part will be nearly 2,000 words long. We think your patience will be well rewarded.

Where Are We?

I get asked a lot of questions about the law of cyberspace.M-d How will personal privacy be protected? Are software patents good or bad for the growth of the Internet? Can I download pictures from a publicly accessible web page and post them on my own? How does the First Amendment apply to offshore databases?

I often have a strange feeling: not only do I not know the answer to most of the questions, I don't even know how to think clearly about what the answer might be. Familiar frameworks that work quite well for thinking about and analyzing real-space legal problems don't seem to work very effectively, making it harder and harder to get a grip on what's going on out there.

I don't know what it means that the patchwork world in which we live, where physical borders are critically important components of the legal landscape, is giving way to what Paul Geller has called the network world, where they're not.

I don't know how to determine which of our existing laws make sense, and which don't, in a world that consists of nothing but information -- binary digits, 1s and 0s -- and in which information lawM-d is, in effect, the only body of law there is.

I don't know how to assess the role of law in a world that is undergoing massive change, a world in which legal issues that might have been of concern to 5,000 people in the past -- what are the laws governing the copying of newspaper articles in the United Kingdom? -- now affect 50 or 500 million or more.

What I do know is that lots of what we thought we knew about intellectual property is wrong. We thought we knew that without legal protection for intellectual property, there would be no incentive to produce intellectual property, and that without incentives to produce intellectual property there would be none (or virtually none) created. So the Net, with its (shall we say) uncertainM-d legal protections for intellectual property, should be nothing more than a vast wasteland. But it's not.

We also thought we knew that given a choice between taking something at no cost, and taking something only if you share what you have, people would always choose the no-cost option. The Napster experiment would, therefore, fail. Since you can have access to the music files of Napster users without making your own personal files available to others, who would share? And if nobody shares, the system collapses. But Napster's system hasn't. Twenty million people, by last count, are sharing the files on their hard disks without any reasonM-d to do so.

It seems that this place --M-dcyberspaceM-d -- is a place unlike any we have seen before. It's as if we've come across a hitherto undiscovered island -- somewhere off the coast of Antarctica, say -- that has some pretty strange features. We can travel to and from it in an instant. While we're there, we can move about completely unencumbered by geography, gravity or the other inconveniences of the real, tangible world. We can engage in trade, form communities, and talk to one another there in new, sometimes bizarre, and occasionally unfathomable ways. We can be ourselves, or someone else (our true selves?) or we can be utterly anonymous.

This place has strange new life forms -- bots, web-crawlers, cookies, spiders, viruses. It doesn't really seem to have much of a thereM-d (or a hereM-d) there (and yet people go toM-d or visitM-d web sites). The familiar lines on the map around which we organize so much of our lives don't seem to matter there at all.

It is noplace,M-d really, but somehow it seems to keep growing, and to have room for anyone and anything. And as we continue racing to noplaceM-d in droves, building communities and businesses, services and roads, guides and maps, and so on, we find ourselves looking for principles of organization and ownership and protection -- in short, for law. But what kind of law? And drafted by whom? And how?

Help From An American Original -- And His Moose

There's one scene I've come across that I can't seem to get out of my mind. The story goes like this. It is 1787, shortly after Jefferson had taken up his post as the American Minister to France. That year was, of course, a truly remarkable one in human history. On one side of the Atlantic, delegates were gathering in Philadelphia to begin deliberating over a new Constitution for the recently-formed United States of America. And on the other side, the French Revolution was just beginning. Bread riots in the streets of Paris and a beleaguered King's call for a gathering of the Assembly of NotablesM-d at Versailles marked the beginning of a complex and bloody series of events that leveled European society and altered the course of the modern world.

In the midst of all of this, Jefferson found time to arrange for the display of a complete moose carcass -- antlers attached and 7 feet tall at the shoulder -- in the entrance hall of his residence, the elegant Hotel de Langeac in the center of Paris. This had been, as you might imagine, no small undertaking on his part. Getting a moose from the American woods to Paris in 1787 was an almost unbelievably complicated business. (Come to think of it, getting a moose to Paris today would be no trivial task.)

It's surely worth asking: What was the point of it all? This is not, after all, some randomly-chosen 18th-century eccentric we're talking about. This is the author of the Declaration of Independence and later, the third President, of the United States. Jefferson had lots of other things to occupy his time (and on which to spend his money) in Paris. Yet he spent his time and money on this, going so far as to call the moose carcass an acquisition more precious than you can imagineM-d in a letter to a friend. Why?

Two Stories From The New World

Let's leave the moose standing in the Hotel de Langeac for the moment. I'll return to it in a bit. I want to discuss two stories about cyberspace. The first is about cyber-squatting.M-d You have no doubt heard about the fights that have broken out between the owners of trademarks and the owners of domain names over the rightfulM-d use of individual domain names (exxon-mobil.com, harvard.edu, plannedparenthood.org, etc.). Scores of lawsuits have been filed around the world. In the six months or so since ICANN (the Internet Corporation for Assigned Names and Numbers) instituted an alternative dispute resolution process for these disputes, over 600 individual cases have been filed.

Here's how I look at it. Everyone needs a homestead, a piece of their own real estate, if they're going to settle and start building a life for themselves in this new place. But real estate in cyberspace is a funny thing. Its contours are not drawn by lines in physical space but by entries in a database of domain names.

This real estate is turning out to be very valuable -- worth in the aggregate uncountable billions of dollars. Some folks looked out across the horizon and said: I have a deed, a legally-protected entitlement, to a chunk of that real estate. I already own some of that territory. I have trademark rights in my name, and that means that only I can use that piece of territory with my name on it. Exxon-mobil.com is mine, says Exxon-Mobil, Inc.

But when these folks went out to stake their claim they found that their spots were already taken -- that people were squattingM-d on theirM-d domains. Fights, predictably, broke out. So how do we resolve these competing claims to the same patch of ground? Are these (trademark-based) deedsM-d valid? Which ones? In what circumstances?

Another Story -- Napster

Now, suppose that you find yourself desperate to hear, say, Bob Dylan's original acoustic version of Moonshiner.M-d You don't happen to own a copy of that song yourself, so you log into the Napster database. This allows you to reach the other nine million members of the Napster communityM-d-- the other folks who have downloaded and run the Napster software -- and ask, does anyone have this song on his hard disk? And is that person currently logged on to the Internet?

Let's assume the answer to both questions is yes -- that the database says, Yep, Ricardo Ibarguen in Sao Paolo has a copy of this recording on his hard drive and he's logged onto the Net right now -- here's his Internet address.M-d In that case, the Napster software lets you contact his computer, make a request for the file and download a copy of that file onto your machine so you can play it.

Pretty amazing. All of a sudden, thanks to a little string of (free) software, the whole world is your hard drive. You agree to share a portion of your hard drive with others, in return for their reciprocal agreement to share a portion of theirs with you. A few years ago, there was lots of talk about the coming celestial jukebox,M-d the instantly downloadable library of songs that would be available at the touch of a button. Who would have thought that it would come, not in the form of some gigantic machine housed in the basement of Time-Warner or Sony Music Corporation, but as a simple string of code written by a 19-year old?

And if you're not terribly interested in music, and none of this floats your boat, consider, perhaps, a poetry Napster? Or a real estate listing Napster? Or a Napster for articles about law and cyberspace? Lawyer cartoons? Viola jokes? How about a Napster for information about the genetic sequences making up the human genome? (The latter is already in the planning stages, it turns out. See Declan Butler, Music software to come to genome aid,M-d Nature, vol. 404, p. 694 (April 13 2000).)

So people on our newly-discovered little island, in addition to fighting over real estate, have this truly extraordinary sharing and copying device, a new way to move information around from one person to another. But it turns out that some people are smugglingM-d things in across the border from real-space onto our island. They're taking property created here and bringing it there. And that makes some people -- Metallica, many of the large music studios, and the Recording Industry Association of America, who have filed suit and begun a massive lobbying campaign to stamp out Napster -- pretty unhappy. Those groups believe that copyright law protects them -- or, at least, that it should protect them -- from actions of this kind.

This is in a sense the obverse of the cybersquatting dilemma. Cybersquatting involves newly discovered property there that people are crossing the border to claim. The Napster problemM-d involves existing property here that people are bringing with them as they come across the border.

Does copyright law prohibit this? Should it? And who decides whether it does, or should? How should we think about that?

Read Part II of Professor Post's article.

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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