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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).

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