In recent months, Paul Berman has been kind enough to present me with two new books originating on word processors from Hartford to Princeton. The first, CYBERLAW: Problems of Policy and Jurisprudence in the Information Age (3rd Ed.) is part of the American Casebook Series published by Thomson * West. Paul is co-author with Notre Dame’s Patricia L. Bellia and Temple’s David G. Post. This third edition continues the signature feature that makes this one of the most exciting books in this area. Rather than treating cyberlaw as a series of doctrinal conundrums - how does copyright work on the web, what’s free speech like on the web, etc – Paul and his co-authors use cyberlaw as a vehicle to explore deeper conceptual questions. They are interested in whether the new global communications network calls for a rethinking of basic legal categories. (The alternative, I suppose, is that we need only apply existing categories to new problems created by the web.) They want to know whether internet law is safely left to evolve from the bottom up or whether only a top down regulatory intervention can produce optimal results. They want to know whether technical architecture or legal regulation presents the best approach to guiding the internet to serve human needs. And, above all, they want to know how the internet might reshape thinking on the most basic legal issues of our time.
The latest edition adds much to prior versions. The diagram on p. 15 alone, detailing the path of messages along the information superhighway, is worth the price of admission. New cases to name just a few include Calder v. Jones, 465 U.S. 783 (1984) (personal jurisdiction may be exercised in California over Florida reporters whose allegedly libelous article appeared in California editions of National Enquirer); Amway Corp v. The Procter & Gamble Co. 2000 WL 33725105 (U.S.D.C. W. Dist Mich. 2000) (host of web site in Oregon can be subject to jurisdiction in Michigan based on allegedly defamatory statements that host knew would likely be viewed there); Search King, Inc. v. Google Technologies, 2003 WL 21464568 (U.S. Dist Ct. W. D. Mich 2003) (Google’s decision to reduce the PageRanks for a competitor firm Search King cannot be source of suit for tortious interference with business relations because Google’s actions are protected by the first amendment); Media3 Technologies, LLC v. Mail Abuse Prevention System, LLC, 2001 WL 92389 (U.S. Dist. Ct. Mass. 2001) (charge by one ISP that a web-hosting cite is “spam-friendly” could be seen as defamatory but that charge is not defamatory in this case because it appears to be true); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (upholding FCC’s Fairness Doctrine against first amendment challenge); Ashcroft v. ACLU, 542 U.S. 656 (2004) (upholding trial court finding that the Child OnLine Protection Act violates the First Amendment primarily because blocking and filtering techniques might be less restrictive alternatives to accomplish the government’s objective); Center for Democracy and Technology v. Pappert, 337 F. Supp. 606 (E.D. Pa. 2004) (invalidating as contrary to the First Amendment the Internet Child Pornography Act); and Batzel v. Smith, 333 F. 3d 1018 (9th Cir. 2003) (opening the possibility of a SLAPP suit prevailing against website operator who posted an allegedly tortious statement on grounds that website immunity would not exist where the statement was published without authorization from the statement’s original author). As you would expect, the authors also improve the framing, re-name chapters and add additional excerpts, while removing a great deal of earlier material. We all know how hard, and how important, it is to keep books of this kind fresh and up-to date. Congratulations to Paul on this valuable publication.
Paul’s other recent work that appears between hardcovers is an Ashgate volume that’s part of the International Library of Essays in Law and Society. Paul’s title is Law and Society Approaches to Cyberspace, and he is the sole editor (2007). The binding, paper quality and elegant presentation are noteworthy, but, of course, what readers will find most impressive are the words that fill the attractive pages. Paul offers a typically well-crafted introduction that acquaints readers with the concepts of “law and society” and “cyberspace.” The former tour of a vast scholarship is erudite and useful. And, the latter astutely rejects and improves upon both the “exceptionalist” position that cyberspace upends all prior legal categories and the “unexceptionalist” position that we can solve the problems of cyberspace without any hard, new conceptual work. In this sense, Paul’s introduction begins to weigh in on the thorny questions that form the theme of his co-authored casebook (see above). Finally, Paul’s introduction takes readers quickly and helpfully through the diverse essays that comprise his collection. Contributors consist of a virtual who’s who of contemporary scholars, who tackle the internet from a variety of interdisciplinary perspectives. They include Jack Balkin, Jamie Boyle, Anupam Chander, Julie Cohen, Jane Ginsburg, James Grimmelmann, Dan Hunter, Jerry Kang, Lawrence Lessig, Jessica Litman, Jennifer Mnookin, Peggy Radin, Richard Ross, Guenther Teubner, and Sherry Turkle. The essays are well-chosen and it’s impossible not to come away from the volume convinced this is a fascinating topic worthy of continued study. Of course, Paul also makes his own contribution by reprinting his 2005 Pennsylvania Law Review article Towards a Cosmopolitan Vision of Conflict of Laws: Redefining Governmental Interests in a Global Era, in which he attempts to demonstrate why recognition of foreign judgments may have independent value that warrants reconsideration of contemporary choice of law rules. I’m sure you all join me in congratulating Paul on this significant contribution to an increasingly important literature. BRAVO!