Class 1.0 Notes: Cyberlaw and the Global Economy

A few of the key themes that we developed in Class 1.0 of Cyberlaw and the Global Economy:

* We explored the question of what sort of scheme of governance would make the most sense for activities on the Net, with a particular emphasis on establishing an ecosystem for the development of business transactions.  Much of the controversy boils down to “One net or many?”  One law or many?  And who governs/decides?  Our inquiry began with the commercial perspective — i.e., to what extent do businesses need to have a reliable, clear, understandable global ecosystem, with calculable risks, before investment and commercial activity will take place online? — but quickly ran toward other concerns and perspectives.  Our core text was Jonathan Zittrain’s Be Careful What You Ask For, in which he considers whether the global Net can be reconciled with home rule.  We focused primarily on Dow Jones v. Gutnick, the Australian high court decision that said that Mr. Gutnick could hale Barrons’ parent company into court in Victoria, despite Dow Jones’ argument that they were publishing in New Jersey and that it was inappropriate to for the Victorian court to assert jurisdiction over it.  Dow Jones feared that this opinion meant they could be sued in any jurisdiction in the world as a result of publishing to the Net from the USA.  The class didn’t seem too worried by this concern, though we did get into the forum shopping argument that flowed from it.  A consideration of the governance issue from the perspective of the public interest (defined how, exactly?), as represented in a number of ways, led some people toward a different set of conclusions. 

* We considered Internet exceptionalism and American exceptionalism, the latter exacerbated by growth of the Net.  One student suggested Corporate exceptionalism as an added consideration.  We talked about the evolution of thinking about cyberspace as a separate space to a more nuanced view.  Certain types of transactions, or commercial activity, lead to different understanding about whether the Net is exceptional or not.  Some of our ideas: banking transactions, domain name disputes, taxation, gambling, contracts, and intellectual property disputes.

* Several people raised excellent points about solving the jurisdiction problems inherent in the governance question via technology — geolocation or otherwise — which led to consideration of the Yahoo! France case, eloquently described by one student. We developed the Lessig idea of code-is-law/west-coast and east-coast code.  We considered whether a zoned Net is a good or a bad idea (most people who spoke up thought it was a bad idea).

* For next week: heading into commercial transactions on the Net, with emphasis on contract law.

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