Law Commons^™

Habermas@Discourse.Net: Toward A Critical Theory Of Cyberspace, A. Michael Froomkin

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No abstract provided.

Social Networks And Electronic Commerce In China, Jane K. Winn

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Communication technologies that make up the emerging global information infrastructure have the power to regulate online behavior. Social networks in Chinese society have survived the growth of formal legal institutions and liberalization of China's economy, but it is not clear whether they can survive the regulatory pressures created by global information technology networks.

The spread of electronic commerce technologies in China may strengthen legal institutions and open local markets to international competition, but is likely to be resisted by all the same interests that resist those changes in other contexts. The Chinese response to the spread of electronic commerce might …

Emerging Issues In Electronic Contracting, Technical Standards And Law Reform, Jane K. Winn

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The explosive growth of electronic commerce transactions in recent years has added fuel to efforts to harmonize international commercial law. Organizations such as the International Institute for the Unification of Private Law (UNIDROIT), the United Nations Commission on International Trade Law (UNCITRAL) and the Hague Conference on Private International Law are all participating in an emerging global debate concerning the changes that should be made to the form or substance of international commercial law to accommodate innovation in the technology of international trade.

Many of the important legal issues raised by cross-border electronic commerce in the 1970s and 1980s have …

Form And Substance In Cyberspace, A. Michael Froomkin

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In this Response to the preceding article by Joe Sims and Cynthia Bauerly, A. Michael Froomkin defends his earlier critique of ICANN. This Response first summarizes the arguments in Wrong Turn In Cyberspace, which explained why ICANN lacks procedural and substantive legitimacy. This Response focuses on how the U.S. government continues to assert control over the domain name system, and how this control violates the APA, the nondelegation doctrine as articulated by the Supreme Court in Carter Coal, and public policy. Professor Froomkin then proposes that ICANN's role be more narrowly focused away from policy making towards true …

Digital Copyright And The "Progress Of Science, Jessica D. Litman

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Let me start with a truism: Networked digital technology has transformed information and the way we interact with it. Digital information is dynamic rather than fixed. What we think of as “documents” can change constantly. That’s challenged our notions of what it means to archive material.

The Emperor's New Clothes: The Shocking Truth About Digital Signatures And Internet Commerce, Jane K. Winn

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This Article critiques a specific set of assumptions about specific application of digital signature technology: that contracts will be formed over the Internet among parties with no prior relationships through reliance on digital signature certificates issued by trusted third parties to establish the identity of the parties. This application for digital signature technology was once seen as both its most ambitious and most promising application because, for parties with no prior knowledge of each other, there is not yet a reliable system of online identities in Internet commerce.

Parties with an ongoing commercial relationship can absorb the cost of offline …

What's My Copy Right?, Michael J. Madison

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This piece consists of an early 21st century whimsy, a dialogue that borrows and blends history and humor to illustrate some puzzles of copyright law in the context of digital technology (with references to Folsom v. Marsh and Abbott & Costello).

Catalytic Impact Of Information Technology On The New International Financial Architecture, Jane K. Winn

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The sudden emergence of the Internet as a global network threatens to eclipse the importance of the global information infrastructure painstakingly built by financial institutions and their regulators over the past three decades. The open public nature of the Internet threatens the value of the closed proprietary networks developed by financial institutions that now face serious problems in integrating their legacy systems and new Internet systems.

Information system security, once a dreary back office matter, is now central to the success of e-commerce business plans. Before financial institutions can capitalize on their expertise in information system security, they will have …

Wrong Turn In Cyberspace: Using Icann To Route Around The Apa And The Constitution, A. Michael Froomkin

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The Internet relies on an underlying centralized hierarchy built into the domain name system (DNS) to control the routing for the vast majority of Internet traffic. At its heart is a single data file, known as the "root." Control of the root provides singular power in cyberspace.

This Article first describes how the United States government found itself in control of the root. It then describes how, in an attempt to meet concerns that the United States could so dominate an Internet chokepoint, the U.S. Department of Commerce (DoC) summoned into being the Internet Corporation for Assigned Names and Numbers …

Complexity And Copyright In Contradiction, Michael J. Madison

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The title of the article is a deliberate play on architect Robert Venturi's classic of post-modern architectural theory, Complexity and Contradiction in Architecture. The article analyzes metaphorical 'architectures' of copyright and cyberspace using architectural and land use theories developed for the physical world. It applies this analysis to copyright law through the lens of the First Amendment. I argue that the 'simplicity' of digital engineering is undermining desirable 'complexity' in legal and physical structures that regulate expressive works.

Electronic Records And Signatures Under The Federal E-Sign Legislation And The Ueta, Robert A. Wittie, Jane K. Winn

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Federal legislation establishing legal parity between electronic records and signatures and their paper and ink counterparts was signed into law June 30, 2000, and became effective, at least for most purposes, on October 1. The Electronic Signatures in Global and National Commerce Act (E-SIGN or the Act) effectively sweeps away a myriad of anachronistic and inconsistent state and federal requirements for paper and ink documents and signatures. In so doing, E-SIGN eliminates many of the legal uncertainties that have surrounded the use of electronic media in commerce and should enable businesses and consumers alike to more fully realize the cost …

The Constitution And Encryption Regulation: Do We Need A "New Privacy"?, A. Michael Froomkin

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No abstract provided.

The Hedgehog And The Fox: Distinguishing Public And Private Sector Approaches To Managing Risk For Internet Transactions, Jane Kaufman Winn

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In his essay The Hedgehog and the Fox, Isaiah Berlin used an ancient Greek proverb comparing these animals as a metaphor to express a deep division among thinkers and writers in their understanding of the human condition. In this essay, I extend the metaphor to contrast the differing approaches to risk management taken by the public sector in the exercise of its sovereign functions and that taken by members of the private sector in the conduct of commercial transactions. In light of the differences in these basic approaches to questions of risk management, I will evaluate some widely discussed …

Of Governments And Governance, A. Michael Froomkin

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The Magaziner Report focuses on achieving short-term goals without giving sufficient consideration to long-term consequences affecting the structure of Internet governance and democracy in general. This overly pragmatic approach creates a paradoxical climate: overly-friendly to government intervention (in e-commerce regulation) while also overly willing to defer to privatized governance structures (in other areas). As the recent World Intellectual Property Organization ("WIPO") domain name/trademark process demonstrates, certain Internet governance processes raise several questions, not least discerning whether such processes include adequate notice and consultation. More traditional democratic processes, such as legislation and regulation, have routinized means of giving affected parties notice …

The Empire Strikes Back, A. Michael Froomkin

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No abstract provided.

Regulating The Use Of The Internet In Securities Markets, Jane Kaufman Winn

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As use of the Internet and other new technologies in securities continues to expand, the U.S. Securities and Exchange Commission and self-regulatory organizations (SROs) within the securities industry have continued their efforts to adapt their existing regulations to these developments. Although regulators in the United States have provided guidance to market participants on many issues, many other important questions under U.S. securities law remain unanswered.

Guidance regard to securities law in other jurisdictions is almost non-existent, though transnational organizations, such as the International Organization of Securities Commissions (IOSCO), are working to remedy this situation. I

n 1997 and 1998, the …

Open Systems, Free Markets, And Regulation Of Internet Commerce, Jane Kaufman Winn

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Can commercial transactions conducted over the Internet be regulated by existing commercial law doctrines? Many promoters of Internet commerce argue that business done over open computer networks such as the Internet will require a new regulatory framework In fact, many issues raised by Internet commerce have already been considered at length in the context of electronic commerce conducted over closed computer networks, such as those used in financial markets.

One of the most hotly debated issues regarding the regulation of Internet commerce is the question of what would be the online equivalent of a signature. Some have argued that, because …

Legal-Ware: Contract And Copyright In The Digital Age, Michael J. Madison

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ProCD, Inc. v. Zeidenberg, which enforced a shrinkwrap license for computer software, has encouraged the expansion of the shrinkwrap form beyond computer programs, forward, onto the Internet, and backward, toward such traditional works as books and magazines. Authors and publishers are using that case to advance norms of information use that exclude, practically and conceptually, a robust public domain and a meaningful doctrine of fair use. Contesting such efforts by focusing on the contractual nature of traditional shrinkwrap, by relying on market principles, on adhesion theory, on commercial law concepts of usage and custom, or on federal preemption doctrine, feeds …

Article 2b As Legal Software For Electronic Contracting-Operating System Or Trojan Horse?, A. Michael Froomkin

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The proposed draft of Article 2B of the Uniform Commercial Code can be thought of as akin to a complex computer software suite which seeks to dominate a market by offering all things to all people. The author suggests, however, that Article 2B's electronic contracting rules interoperate poorly with existing digital signature laws, and with some forms of electronic commerce. The author also questions whether Article 2B is the proper means to enact controversial rules that ordinarily would make consumers liable for fraudulent uses of their digital signatures by third parties. After considering Article 2B's potential interaction with existing digital …

Copyright Law And Electronic Access To Information, Jessica D. Litman

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At the same time as we have been discovering the Internet’s enormous potential to enhance access to information and revolutionize the ways libraries do business, the Internet’s high profile in popular media has made it the focus of a wide spectrum of fears about the future. This paper focuses on pending proposals to amend copyright law to enhance the control copyright owners wield over the appearance of their works on digital networks. These proposals would stifle libraries’ use of the Internet. Libraries and their supporters must participate in the copyright debate, and think creatively about new models for copyright. The …

Flood Control On The Information Ocean: Living With Anonymity, Digital Cash, And Distributed Databases, A. Michael Froomkin

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No abstract provided.

It Came From Planet Clipper: The Battle Over Cryptographic Key "Escrow", A. Michael Froomkin

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No abstract provided.