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BERKELEY TECHNOLOGY LAW JOURNAL

[Vol. 17:1

Transactions in cyberspace involve real people in one territorial jurisdiction either (i) transacting with real people in other territo- rial jurisdictions or (ii) engaging in activity in one jurisdiction that causes real-world effects in another territorial jurisdiction. To this extent, activity in cyberspace is functionally identical to transnational activity mediated by other means, such as mail or telephone or smoke signal.54

Now I get it: to that extent, but only to that extent, cyberspace and real- space transactions are identical. To the extent that our question requires us to ask whether “real people in one territorial jurisdiction [are] transacting with [other] real people in other territorial jurisdictions,”55 cyberspace and realspace transactions are, for that purpose, identical. To the extent that our question requires us to ask something else—whether, say, they involve bits and software, or instantaneous communication with enormous num- bers of people across the global network, etc.—they are not.

The question we need to be addressing, then, is this one: are Digital- books.com’s and Analogbooks’ transactions identical—or, at least, suffi- ciently similar—to one another with respect to the relevant principles of international choice of law and prescriptive jurisdiction? If so, it is rea- sonable to ignore the many differences between them; if not, it is not.

V. SCALE

To the Unexceptionalist, Digitalbooks.com’s and Analogbooks’ trans- actions are identical with respect to the relevant principles of international choice of law. The issues raised by application of these principles and pre- scriptive jurisdiction to Digitalbooks.com’s cyberspace transactions, they say,

. . . are no more complex than the same issues in real space. They also are no more complex or challenging than similar issues pre- sented by increasingly prevalent real-space events such as air- plane crashes, mass torts, multistate insurance coverage, or mul- tinational commercial transactions, all of which form the bread and butter of modern conflict of laws. Indeed, they are no more complex than a simple products liability suit arising from a two- car accident among residents of the same state, which can impli- cate the laws of several states, including the place of the acci- dent, the states where the car and tire manufacturers are head-

  • 54.

    Against Cyberanarchy, supra note 2, at 1239-40 (emphasis added).

  • 55.

    Id. at 1239.

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