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2002]

AGAINST “AGAINST CYBERANARCHY”

3

constitute “impermissible extraterritorial regulation of a U.S. corpora- tion”?8 If Digitalbook.com “cannot limit its cyberspace information flows by geography,”9 would application of English or Singaporean law cause Digitalbooks.com to remove Lady Chatterley’s Lover10 from circulation (or, at the very least, to “raise its price”11), thereby “adversely affect[ing] the purchasing opportunities of parties in other countries”?12 And if so, are these “negative spillover effects” of national regulation “illegitimate [and] unfair”13—especially given that “Digitalbook.com had no way of knowing that it sold and delivered a book to consumers in these countries”? 14

Goldsmith’s position—what I term “Unexceptionalism”—is straight- forward. However difficult and complicated Digitalbooks.com’s problems may be, they are no more difficult or complicated because the underlying transactions take place “in cyberspace.” As Goldsmith puts it,

[t]ransactions 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. 15

To the Unexceptionalist, whether a transaction occurs in cyberspace or realspace does not matter. The questions of jurisdiction and choice of law posed by Digitalbooks.com’s conduct are not “unique to cyberspace” 16

  • 8.

    Id. at 1205.

  • 9.

    Id.

  • 10.

    See id.

  • 11.

    Id.

  • 12.

    Id. at 1205.

  • 13.

    Id.

  • 14.

    Id.

  • 15.

    Id. at 1239-40 (emphasis added); see also Jack L. Goldsmith, The Internet and

the Abiding Significance of Territorial Sovereignty, 5 IND. J. GLOBAL LEGAL STUD. 475, 479 (1998) [hereinafter The Abiding Significance] (“Internet activities are functionally identical to these non-Internet activities. People in one jurisdiction do something—upload pornography, facilitate gambling, offer a fraudulent security, send spam, etc.—that is costly to stop at another jurisdiction’s border and that produces effects within that juris- diction deemed illegal there.”); Allan R. Stein, The Unexceptional Problem of Jurisdic- tion in Cyberspace, 32 INTL LAW 1167, 1180 (1998) (“The Internet is a medium. It con- nects people in different places. The injuries inflicted over the Internet are inflicted by people on people. In this sense, the Internet is no different from the myriad of ways that people from one place injure people in other places . . . .”).

16. Against Cyberanarchy, supra note 2, at 1234.

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