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BERKELEY TECHNOLOGY LAW JOURNAL

[Vol. 17:1

necessarily the same as a consequence of that identity. Scale matters. Dif- ferences in degree sometimes become differences in kind; quantitative changes can become qualitative changes.60 Rules and principles that may be quite reasonable at one scale may become incoherent and unreasonable at another.

Consider the following example of the ways in which the scale of ac- tivities in cyberspace can unsettle settled legal principles. In 1995, Dennis Erlich, a former-minister-turned-critic of the Church of Scientology, took the texts of a number of works authored by Scientology founder L. Ron Hubbard and, using the services of Netcom On-line Communication Ser-

vices,

Inc.,

distributed

them

to

the

Usenet

newsgroup

alt.religion.scientology. Netcom, for its part, reproduced each of those documents dozens, perhaps hundreds or thousands, of times in the course of transmitting Erlich’s messages (and the files he included in those mes- sages) to other Usenet sites. Hubbard’s works were protected by U.S. copyright law, and the owner of the copyright in Hubbard’s works— Religious Technology Center—appeared in Judge Ronald Whyte’s court- room in the Northern District of California to enjoin Netcom’s violation of its statutory rights. 61

Judge Whyte, I think it fair to say, found this case somewhat unset- tling. On the one hand, one would be hard-pressed to find a case in the federal reporters where the law, and the application of the law to particular facts, was more straightforward than this one. There was a nice, “settled” principle of law to work with: it is an infringement of copyright to “repro- duce” a copyrighted work of authorship “in copies” without the copyright holder’s authorization.62 It was hard to deny that Netcom had done just that.

60. The repudiation of “Hermetic Territorialism” was a kind of “phase transition” in the law—one orderly arrangement of the interlocking parts of a complex system gives way, rather suddenly, to an entirely different arrangement. Think of the transformation of liquid water into solid ice. As the temperature falls, the individual components of the system—the hydrogen and oxygen atoms and the bonds between them—slowly change, releasing small quanta of energy, while retaining the orderly arrangement that defines the “liquid” state. But at the freezing point, the system abandons gradualism, changing abruptly into a different kind of orderly arrangement of its atoms, an entirely different configuration. We do not know, I would submit, very much at all about phase transitions in the law—how small changes in the many interlocking doctrines, judicial decisions, statutory provisions that underlie any particular legal domain can lead to a systemic re- configuration of those interlocking parts.

61. Religious Tech. Ctr. v. Netcom On-line Servs., Inc., 907 F. Supp. 1361 (N.D. Cal. 1995).

62. 17 U.S.C. § 106 (2002).

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