About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

91 Geo. L.J. 357 (2002-2003)
The Problem of Perspective in Internet Law

handle is hein.journals/glj91 and id is 371 raw text is: The Problem of Perspective in Internet Law ORIN S. KERR* INTRODUCTION The lawyer's quintessential task is to apply legal rules to facts.' When we apply law to the Internet, however, a difficult question arises: What are the facts of the Internet? The Internet's facts depend on whether we look to physical reality or virtual reality for guidance. We can model the Internet's facts based on virtual reality, looking from the perspective of an Internet user who perceives the virtual world of cyberspace and analogizes Internet transactions to their equivalent in the physical world. Alternatively, we can model the facts based on the physical reality of how the network operates. From this perspec- tive, Internet transactions can be understood based on how the network actually works behind the scenes, regardless of the perceptions of a user. Because the Internet can generate a virtual reality, it offers two distinct sets of facts: one based on physical reality, the other based on virtual reality. The Internet's ability to generate a virtual reality creates what I will call the problem of perspective in Internet law. The problem is that whenever we apply law to the Internet, we must first decide whether to apply the law to the facts as seen from the viewpoint of physical reality or virtual reality. In this Article, I will refer to the viewpoint of virtual reality as the internal perspective of the Internet, and the viewpoint of physical reality as the external perspective. This Article argues that the problem of perspective pervades Internet law, and that the nature and shape of Internet law depends upon how it is resolved in particular cases. In a surprising number of situations, we arrive at one result when applying law from an internal perspective and a different result when applying law from an external perspective. In fact, many of the major disputes within the field of cyberlaw''4 boil down to clashes between internal and external perspectives. To complicate matters, neither perspective holds an a priori claim to greater legitimacy. Both internal and external perspectives can appear perfectly viable depending on the circumstances, and courts and commen- * Associate Professor, George Washington University Law School. Thanks to Rachel Barkow, Amy Barrett, Laura Berger, James Boyle, Robert Brauneis, Brad Clark, Erica Hashimoto, Dan Hunter, Mark Lemley, Doug Lichtman, Chip Lupu, Dan Markel, Jonathan Molot, Richard Pierce, Jeffrey Rosen, Michael Selmi, Joe Singer, Daniel Solove, Peter Swire, Molly Van Houweling, and Tim Wu, as well as the participants in the George Washington University Law School faculty workshop. I benefited greatly from presenting early versions of this piece before the law faculties at George Washington, Northwest- ern, Rutgers-Newark, Cardozo, Washington University, and Boston College. 1. See, e.g., EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING 1-3 (1949). 2. See infra notes 8-9 and accompanying text. 3. See infra notes 10-12 and accompanying text. 4. See Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 HARV. L. REV. 501,501 (1999).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most