Legal Pundits Pan Internet Exceptionalism

Back in Brown writes: "This article from today's Wall St. Journal (via MSNBC) presents the viewpoints of several legal commentators that the Internet should be treated like any other invention and not subject to novel legal interpretations. 'The steam engine ... probably transformed American law, but the "law of the steam engine" never existed.' Another quote: 'cyberbuffs are afflicted with "insufficient perspective, disdain for history, unnecessary futurology and technophilia."'"

Comments

Someone else missed the point!

[werdna]

Proof that the author and those quoted don't really understand what they're dealing with lies in the underlying assumption that one nation's laws can be binding on something like the internet.

Straw man. The "assumption" is not that "one nation's laws can be binding on ... the internet." It is merely that a nation's laws can be binding upon the French subsidiary of Yahoo, over whom it had plain and simple jurisidiction. As much as some would like to pretend that Yahoo France is a "virtual" company residing in the internet, the Nazi paraphernalia case is a very bad poster boy for accusations of virtual jurisdiction.

Yahoo WAS a bad citizen in this case, and was slammed accordingly. Under US law, this result seems foolish and foreign, but we in the US do not get to impose our constitution on France -- a place brutally savaged by the Nazis. France applied its own law as against its own corporate citizen and its parent, a citizen that faced pretty bad and ugly facts in its own defense, using traditional notions of extraterritoriality.

Yahoo is probably not the best example to suggest that these authors don't "get it." Indeed, the poster seems to have as much difficulty understanding the law as he insists these jurists are having difficulty understanding the tech.

"Law of the Horse", by Lessig

[Animats]

First, this looks like a rehash of Lawrence Lessig's paper, The Law of the Horse. In that paper, Lessig makes similar claims, including that there was no "law of the horse", and arguing by analogy that we don't need new law for cyberspace.

In fact, Lessing was wrong - there is a "law of the horse". One of the earliest legal codes we have, from one of the Scandanavian kings (Ranulf?), has at least two horse-specific laws. And they're interesting.

One law provided that, if a horseshoer made a horse temporarily lame, (which happens occasionally, more often with inept horseshoers) they had to provide a loaner horse until the hoof healed up. This is perhaps the first piece of consumer protection legislation. Note that it's very specific, and, like modern "lemon laws", places the blame unambiguously on the service provider. It's not a general tort or liability law; it's a law that arbitrarily assigns blame for a specific, common problem.

Another law provided that that if someone borrowed a horse and rode it around the village, they were guilty of a minor offense, but if they rode it out of the village, they were guilty of a major offense. Some jurisdictions make that distinction today in auto theft cases, mostly for juveniles.

So the law of the horse did exist when horses were important.

There's a sizable law of steam. Start with the ASME Boiler Code, which is very specific and has the force of law in many countries. Boilers used to blow up frequently before there was law that set standards for boilers and the people who design and build them. The U.S. safety regulations for steam locomotives (49 CFR 230) are still valid and enforced. There's a National Board of Boiler and Pressure Vessel Inspectors.

For a history of the law of steam, see page 35 of this recent boiler explosion investigation report. There's a law of steam for good reason. The first law of steam was enacted in the US in 1838, after a riverboat blew up, killing 300 people. The issue remains; a steam locomotive blew up in 1995, killing several people.

Thus, claims that there is no "law of the horse" or "law of steam" are false. Such laws exist.