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BERKELEY TECHNOLOGY LAW JOURNAL

[Vol. 17:1

or deep thinking to come up with ways in which activity in cyberspace is functionally not identical to activity in realspace. For example, in cyber- space, I can communicate an offer to sell some product or service

  • instantaneously (or nearly so);

  • at zero marginal cost (or nearly so);

  • to several million people;

  • with near-zero probability of error in the reproduction or distribu-

tion of that offer;

  • which can be stored, retrieved, and translated into another lan- guage by each of the recipients (instantaneously, and at zero mar- ginal cost); and

  • to recipients who have the capability to respond to my offer (in- stantaneously, and at zero marginal cost).

I surely cannot engage in a transaction having all of those features us- ing mail, telephones, or smoke signals.

The Unexceptionalists are intelligent and sophisticated thinkers; how could they possibly think that activity in communication in cyberspace is “functionally identical”—not, mind you, merely functionally similar, or even roughly equivalent, but identical—to realspace communication?

Asking whether realspace and cyberspace transactions are identical to or different from one another is like asking whether life on land is identi- cal to or different from life in the ocean. The answer is that it is, and it must be, simultaneously, both; it depends entirely on the questions you are asking.53 The second law of thermodynamics, gravity, and the principle of

53. Confronted with the assertion “that in all the vast countries of America, there is but one language,” Thomas Jefferson pondered the question: “what constitutes identity, or difference, in two things, in the common acceptation of sameness?” This, he wrote, is a question of definition, in which every one is free to use his own . . . All languages may be called the same, as being all made up of the same primitive sounds, expressed by the letters of the different alphabets. But, in this sense, all things on earth are the same, as consisting of matter. . . . [and] it may be learnedly proved, that our trees and plants of every kind are descended from those of Europe, because, like them, they have no loco- motion, they draw nourishment from the earth, they clothe themselves with leaves in spring of which they divest themselves in autumn for the sleep of winter, etc. Our ani- mals too must be descended from those of Europe, because our wolves eat lambs, our deer are gregarious, our ants hoard, etc. Letter from Thomas Jefferson, Third President, United States of America, to John Ad- ams, Second President, United States of America. THE ADAMS-JEFFERSON LETTERS: THE

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