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BERKELEY TECHNOLOGY LAW JOURNAL

[Vol. 17:1

because “identical problems arise all the time in real space.”17 After all, people have been communicating and transacting with other people in other territorial jurisdictions for a long time, well before the Internet raised its head. Thus, the questions created by Digitalbook’s conduct may be complex and challenging, but they are “no more complex or challenging than similar issues presented by increasingly prevalent real-space events such as airplane crashes, mass torts, multistate insurance coverage, or mul- tinational commercial transactions, all of which form the bread and butter of modern conflict of laws.” 18

Over the past century or so, a number of important principles of law and analytical tools have evolved to resolve the jurisdictional problems posed by border-crossing transactions. These traditional principles and tools, though developed to deal with realspace phenomena, do not sponta- neously disintegrate or misfire when we apply them to phenomena on the global electronic network. Cyberspace transactions “are not significantly less resistant to the tools of conflict of laws, than other transnational trans- actions,”19 and it would therefore be a mistake to “underestimate the po- tential of [these] traditional legal tools and technology to resolve the mul- tijurisdictional regulatory problems implicated by cyberspace.” 20

Those who think otherwise—Goldsmith calls them “regulation skep- tics,”21 though I prefer the less loaded and more symmetrical term “Excep- tionalists”—believe that cyberspace is somehow different, that it matters, for purposes of understanding these jurisdictional questions, that Digital- books.com is operating on the World Wide Web and not in a brick-and- mortar realspace storefront. Exceptionalists, in Goldsmith’s view, are skeptical of the “potential of traditional legal tools and technology to re- solve the multijurisdictional regulatory problems implicated by cyber- space.”22 They believe that “the application of geographically based con- ceptions of legal regulation and choice of law to a-geographical cyber- space activity either makes no sense or leads to hopeless confusion,”23 and that because “cyberspace transactions occur ‘simultaneously and equally’ in all national jurisdictions, regulation of the flow of this information by any particular national jurisdiction illegitimately produces significant

17. Id.; see also Stein, supra note 15, at 1191 (“Jurisdiction in cyberspace is not unproblematic. My point is that it is not uniquely problematic.”) (emphasis added).

18.

Against Cyberanarchy, supra note 2, at 1234.

19.

Id. at 1201.

20.

Id. at 1200-01.

21.

Id. at 1199.

22.

Id. at 1200-01.

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