When Professors Rothman and Ginsburg asked me to speak here on the issues surrounding territoriality, jurisdiction, choice of law, and the like in the law of publicity, I confessed that I knew little about the developing law of publicity rights. Having taught Copyright Law for many years, I had come across the well-known foundational publicity rights cases—the cases involving Tom Waits, Vanna White, and Bette Midler—because of the problematic relationship between those decisions (under California state law) and federal copyright law. But I had not studied the publicity doctrine, or the main corpus of cases and statutes, with any great care. I had, however, done some thinking over the years about territoriality and jurisdiction in other contexts. I was happy to have the opportunity to dive in and spend a couple of months immersing myself in the publicity cases and commentary to try to discover how those questions played themselves out in this particular corner of the legal universe. I found the results “alarming.” I use the term advisedly, so let me try to explain what I mean by it.

Cyberspace is more fundamentally intractable in regard to determining the applicable legal constraints on this activity: the geographical borders – lines separating physical spaces that define law-making power in the ordinary sense – are not, and cannot be made, operative on the global network. Cyberspace, however, does not merely weaken the significance of physical location, it destroys it in three distinct senses. Hamilton is already making his presence felt on the net in calls for increasing harmonization of rules governing conduct in this new environment. The defendant, America Online, is, of course, a large commercial online service provider. Like most online service providers, America Online offers a service to its subscribers – the ability to receive, and to send, electronic mail, not merely to other America Online subscribers but over the Internet – a 'gateway' between the closed America Online system and the open, worldwide Internet.

The world is in the midst of a seismic re-scaling, and the electronic communications revolution of the last several decades has made it both much larger and much smaller. Just as the re-scaling that accompanied deployment of the communications and transport technologies of the 19th Century held to issue in the Age of Territoriality, the current re-scaling will have profound effects on our law and governance institutions, though we can hardly be expected to see where they are leading us while we are in the very midst of the maelstrom - the Owl of Minerva only flies at dusk.

Tensions between national law and the Internet’s global architecture have existed since the network’s earliest days. They took on new urgency in recent years, with developments like French regulators’ efforts to globally enforce “Right to Be Forgotten” laws. New cases, technologies, and platform responses seem to come along every few months. Expert-level discussion of these issues is dynamic and fast-moving -- but the written literature is only starting to catch up. This volume contributes to that literature by capturing insights from the Stanford Center for Internet and Society’s Law, Borders, and Speech conference.

In Part 1 of this series on Controlling Internet Infrastructure, we described the “IANA transition,” the U.S. government’s plan to relinquish its special oversight role in connection with the Internet Corporation for Assigned Names and Numbers (ICANN) by terminating the contract pursuant to which ICANN has been managing the Internet’s “domain name system” since 1999.

On March 14, 2014, the United States government announced its intention to end its direct role in overseeing the Internet’s Domain Name System (DNS). The IANA transition, as it is called, is a moment of critical importance in the history of the global network and the relationship between network governance and government control. It is an extraordinarily complex undertaking, both technically and legally, and there is a great deal at stake — but only a small handful of people understand the full scope of the problems involved and can participate intelligently in the public discussion about what entity or system should replace the U.S. government’s role in DNS oversight. It is thus an unfortunate combination of circumstances for informed decision-making and public discussion. This paper seeks to fill at least a part of that gap. The current IANA transition is the logical culmination of the sequence initiated in the 1998-’99 transition, and it presents a significant opportunity for the United States and for the global community of Internet users. Over time, the justifications for a special role for the U.S. government in managing the evolution of the Internet and its governance systems have considerably weakened, as a consequence of both the Internet’s vastly expanding global reach and of questions about the U.S. government’s ability to claim any kind of neutral “stewardship” role for itself with respect to Internet affairs. The IANA transition also has important symbolic significance: it is a formal recognition by the United States that the Internet, which the United States government helped usher into existence 30 years ago, is now truly a global public trust. The Internet’s core infrastructure, rather than being the special purview of any one country’s exclusive jurisdiction, needs to evolve in ways that benefit all users, world-wide. And a strong, consensus-based, non-governmental, multi-stakeholder institution at the policy-making center of the DNS is likely to be the best way to ensure that the Internet infrastructure remains free from undue governmental influence. Yet the risks the transition poses are also high. The DNS is, by design, essentially invisible to the vast majority of Internet users, but if it were to break down, or fragment into multiple competing systems, the impact on Internet use around the world would be substantial. Furthermore, in the wrong hands control over the DNS can be leveraged into control over a much broader universe of Internet activity and communication than that encompassed by the DNS alone. Freed from U.S. government oversight, what is to prevent ICANN from inserting itself into global law-enforcement or governance role far removed from its core commitment to insuring that the DNS runs smoothly and efficiently? The stakes are high, for everyone who uses the Internet and everyone who is concerned with its future development as a global communications platform. Designing a transition plan that achieves the goal of relinquishing the U.S. government’s oversight over the DNS while eliminating (or at least minimizing) the risks will be a difficult task, one that will require considerably more public attention and debate than it has received up to now. This paper, by explaining the nature of the challenges and the opportunities presented by the transition, lays some of the foundation for that debate, as well as for subsequent papers in this series, in which we will address in greater detail the substance of specific transition proposals now under development, along with our recommendations concerning implementation of what we believe to be the key components of a successful transition process.

El autor del siguiente artículo desarrolla el tema de la arquitectura y el código del ciberespacio, explicando cómo está estructurado este nuevo ambiente de interacción humana y las posibilidades que nos presenta. Como sabemos, con este nuevo ámbito surgen nuevas formas de regulación y de control.

Nowadays, the Internet plays an essential role in d ifferent aspects of the globalized world. No longer just a communication to ol, it became extremely important to human life, what led to a marked expansion of the C yberspace and the creation a linked global society. The growing online trade levels, in line w ith its nature devoid of boundaries, brought up a new debate: is a system of choice-of-law whose core lies on the concept of geographic boundaries adequate to understand something in whic h t ey probably aren't relevant?

On several occasions, during the period that Jonathan Zittrain and I were working on our respective books, each of us had the opportunity to present his developing ideas to the other at some public event (in particular, at several memorable “Penn-Temple-Wharton” colloquia), and we used to joke that we were actually both working on different versions of the same book. It was just a joke, but as it turns out there was something to it; my book1 is all about “generativity” (though I don’t use the term), and Zittrain’s The Future of the Internet2 has more Jefferson in it than might be immediately apparent at first glance (though there are few explicit references thereto). Zittrain does tend to see the glass as half-empty, while I see it as half-full (following Jefferson, who once wrote to a friend that he found that “the flatteries of hope are as cheap, and pleasanter than the gloom of despair”3); but it is, at bottom, very much the same glass. Consider the very first sentence of chapter 1 of The Future of the Internet: “Today’s Internet is not the only way to build a network.”4 It is a simple and obvious point, of course—but one whose implications are surprisingly rich, often counterintuitive, and thoroughly indispensable for understanding what the Net is and where it might be headed. Though it is not the first sentence of my book,5 it could well have been, and quite possibly it should have been. The focus of my book is largely retrospective, so I reframe the point as a question: Given all of the other ways to build networks and inter-networks, why did this one, and not some other, become the Big One—i.e., “the Internet,” the single, ubiquitous communications medium that conquered the planet?6 It is surprising—at least, it was

This paper was written in response to a request from the editors of the Fordham Law Review, who were organizing a symposium (held in Dec. 2009) focused on my book (In Search of Jefferson’s Moose: Notes on the State of Cyberspace) and Jonathan Zittrain’s (The Future of the Internet – And How to Stop It). Zittrain and I often joked, while were working on our respective books, that we were actually preparing different versions of the same book, and though it was just a joke, as it turns out there was something to it. In this essay, I describe the ways in which In Search of . . . is really all about “generativity” (though the term doesn’t appear therein), and the ways in which The Future of . . . has more Jefferson in it than might be apparent at first glance.

In 1787, Thomas Jefferson, then the American Minister to France, had the skeleton of an American moose shipped to him in Paris and mounted it in the lobby of his residence as a symbol of the vast possibilities of the largely unexplored New World. Taking a cue from Jefferson's efforts, David Post, one of the nation's leading internet scholars, presents a pithy, colorful exploration of the still mostly undiscovered territory of cyberspace--what it is, how it works, and how it should be governed. Dear Amazon Reader: Why might you want to read a Jeffersonian natural history of the internet? Perhaps because you know that Thomas Jefferson was a very interesting, and a very smart, guy but you'd like to know more about what he was up to. (Why did he have a moose skeleton and carcass--an acquisition, he wrote, "more precious than you can imagine"--shipped to him in Paris for display in his residence?) Or perhaps because you believe that the internet represents something important, some kind of transformative milestone in the history of human communication, but you don't really know much about where it came from, or how it actually works, or who's in charge. At bottom, this book is a "natural history" of the internet: what it is, how it works, what shape it has, what kinds of things can be found there, how and why it has grown so prodigiously in size. Thomas Jefferson is the guide; the book is (or aspires to be) the natural history of the internet that Jefferson would write, were he around to write it. One thing I can promise you, if you read my book: you'll learn some things about Jefferson, and some things about the internet, that you never knew before, and you'll see some connections between the two that you never saw before. And I can also promise you that you'll encounter some magnificent prose--not mine, Jefferson's. I use Jefferson's own words as much as possible to describe what's going on out there in the "new world," and nobody could craft an English sentence better than Jefferson could. To be honest, I don't know whether the book will change your mind about, or give you any simple solutions for, any of the great issues of the day. I was struck, though, several months ago, at the start of the meltdown in the global financial markets, by something Thomas Friedman wrote in his NY Times column: What we have to understand about the global financial markets, Friedman wrote, and what makes them so hard to understand and so hard to control, is this: everything is inter-connected, and nobody's in charge. Hmm, I thought--sounds like the internet. There are lessons to be learned from a deeper understanding of the net; I won't pretend to know what all of them are, but I know they're there, and my book is a way to help you think about what they might be and what they might mean. Sincerely, David G. Post

The distinction between anonymous and pseudonymous communications is a subtle one, depending both on message context, traceability, and the state of both the law and the relevant technology regarding identification. They serve very different purposes within the matrix of social communication. Regulation of anonymity may have effects on the ability of individuals to pool their efforts together. The regulation of anonymous communication is inextricably linked to the regulation of pseudonymous communication; the latter, in turn, is inextricably linked to the regulation of the kind of 'legal persons' the law will recognize, the kinds of collective entities that can speak 'with one name.' Pseudonymity is a way of achieving a kind of limited liability for individuals engaged in collective communications activities. Pseudonymity involves its own unique set of benefits, including the potential to allow for the accumulation of reputational capital. Our understanding of the costs and benefits of regulation of anonymous communications must take these into account.

In this paper, we reply to criticisms raised by Prof. John Rogers, Lewis Kornhauser, Lawrence Sager, and Maxwell Stearns in connection with the proposal we advanced in an earlier publication (see 80 Geo. L.J. 743 (1992)) regarding the proper method of cumulating votes of individual members of multi-judge panels.