Place and Cyberspace

For cyberlibertarians, the other shoe is rapidly dropping. In a curiousinversion, those who argued less than a decade ago that cyberspace was aplace all its own - and therefore unregulable by territorial governments -are finding their arguments and assumptions used for a very different end.Instead of concluding that cyberspace is outside of the physical world,courts are increasingly using the metaphor of cyberspace as a "place" tojustify application of traditional laws governing real property to this newmedium. Dan Hunter's excellent article explains how and why this ishappening with uncanny accuracy, pointing to the power of metaphor ininfluencing legal thinking and the particular strength of metaphor inmaking the new seem familiar. He also quite correctly observes thatreliance on the cyberspace as place metaphor is leading courts to resultsthat are nothing short of disastrous as a matter of public policy. Finally,he concludes that there is no way for the Internet to escape the firmlyentrenched spatial metaphor, either by substituting another metaphor or byeschewing metaphor altogether. Already, he concludes, the idea ofcyberspace as a place is too well-established in our minds. The result is apaper that is both extraordinarily important and profoundly depressing.In this essay, I do not challenge Hunter's argument that the cyberspace asplace metaphor is rampant, nor his conclusion that judicial use of themetaphor has had pernicious consequences. Rather, I focus on the logicalsteps that courts seem to be missing as they move from metaphor todecision. Thus, in Part I, I explain why the cyberspace as place metaphoris not a particularly good one. In Part II, I suggest some ways courtsmight take account of these differences between the real world and theInternet. In Part III, I observe that even if one accepts the placemetaphor in toto, it need not follow that everything in this new place mustbe privately owned. Nor must it follow that private ownership rightsinclude complete rights of exclusion. My conclusion is somewhat moreoptimistic than Hunter's. While acknowledging the dangers of the cyberspaceas place metaphor and the fact that courts have already started down thewrong road, I suggest that courts and commentators who think seriouslyabout the nature of the Internet still have ample room to make reasonedpolicy decisions. Though we may easily be misled by metaphor, we need notbe its slaves.