BERKELEY TECHNOLOGY LAW JOURNAL
tionalist. Communication in cyberspace is not “functionally identical” to communication in realspace—at least, not in ways relevant to the applica- tion of the choice-of-law and jurisdictional principles under discussion. Furthermore, the jurisdictional and choice-of-law dilemmas posed by cy- berspace activity cannot be adequately resolved by applying the “settled principles” and “traditional legal tools” developed for analogous problems in realspace. Unexceptionalism in cyberspace Border-crossing transactions have always presented the international legal system with difficult and challenging jurisdictional questions: Whose law applies to such transactions? Which sovereign(s) have jurisdiction to pre- scribe law for transactions that originate in one country and terminate elsewhere? When and to what extent is extraterritorial regulation permis- sible?
In Against Cyberanarchy, Jack Goldsmith asked us to consider
the predicament of one of the scores of companies that offer, sell, and deliver products on the World Wide Web. Assume that the web page of a fictional Seattle-based company, Digital- book.com, offers digital books for sale and delivery over the Web. One book it offers for sale is Lady Chatterley's Lover. This offer extends to, and can be accepted by, computer users in every country with access to the Web. Assume that in Singapore the sale and distribution of pornography is criminal, and that Singa- pore deems Lady Chatterley's Lover to be pornographic.
Assume further that Digitalbook.com's terms of sale contain a term that violates English consumer protection laws, and that the publication of Digitalbook.com's Lady Chatterley's Lover in England would infringe upon the rights of the novel's English copyright owner. Digitalbook.com sells and sends copies of Lady Chatterley's Lover to two people whose addresses (say, email@example.com and firstname.lastname@example.org) do not reveal their physical location but who, unbeknownst to Digital- book.com, live and receive the book in Singapore and London, respectively. 7
This scenario, Goldsmith acknowledged, raises some difficult prob- lems: Does English law, Singaporean law, or both, apply to Digital- book.com’s conduct? Would application of either of these bodies of law
7. Id. at 1204-05.