Does “cyberspace” still exist?

A food-for-thought/thinking-in-progress post: does “cyberspace” still exist?

I’ve been thinking about this issue recently in connection with several law review articles I’m writing. My feeling at this point is that our earlier conception of networked communications at the dawn of “cyberspace” in 1996 (see Barlow’s Declaration of Independence of Cyberspace) is quite different from the conception we have today. In an era of social networks, smartphones, apps, and customized services, it may no longer make sense to think of cyberspace as a shared place we visit.

One way of showing this is by examining how Google treats searches for formatives of the word “cyberspace.”

cy

1. Search for “cy”: None of the suggestions include “cyberspace.” Considering the advertising orientation of Google, I’m not surprised that “cyber monday” shows up. But “cyanide and happiness?” Disturbing, much, until I realized that it is a webcomic.

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cyb

2. Search for “cyb”: Even more “cyber monday” stuff, with “cyberpower” at the end. Cyberpower makes UPS power strips.

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cyber

3. Search for “cyber”: If anything should show “cyberspace,” this should. But I got the same results as for “cyb.” Maybe people just don’t think about “cyberspace” as a place anymore. I’m not sure that I should, either. (“Professor, you’re sooo 20th century….”)

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cybers4. Search for “cybers”: You’d think “cyberspace” would have shown up by now. But it still doesn’t; instead, we see “cybersource” (I had to look it up, it’s a credit card processing company), “cybersquatting” (which I’ve written about), “cyberscholar” (a/k/a, hopefully me), and “cyber security” (a hot topic). But no “cyberspace.” Interesting.

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cybersp

5. Search for “cybersp”: Finally, “cyberspace” is the first hit. The first hit is Wikipedia, and claims that the term is “ubiquitous.” But based on Google’s suggested searches, I’m not so sure.

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Beyond the observations above, I’ll not speculate unduly as my thoughts are still forming. But as Dan Hunter wrote in 2003, “Thinking of cyberspace as a place has led judges, legislators, and legal scholars to apply physical assumptions about property in this new, abstract space.” That’s very true: the assumptions we make about things affects how we choose to regulate them.

But I suspect that we’re now moving into a post-cyberspace era, one of networked communications devoid of “place.” Indeed, I don’t think of either Facebook or Twitter–which I call “Super-Intermediaries” in one of my forthcoming pieces–as a place at all, but rather a connectivity tool. Super-Intermediaries are not thought of as metaphorical “places,” but as things that provide ever-shifting and oftentimes highly complex networks that can vary significantly between individuals (Twitter and Facebook) and sometimes between geographical regions (YouTube).

I suspect that this arguable shift away from place-ness may have a significant effect on how we conceive of the internet, how we describe it, how lawmakers try to regulate it, and how human rights are affected. I’ll demur from saying more as my thoughts are still forming, but I plan to discuss some of these themes next month at the upcoming Internet Law Work-in-Progress Conference at Santa Clara Law School.

Cross-posted to Infoglut Tumblr.

The ties that bind the recession and software piracy

Provocative thoughts in Smithsonian Magazine from Jaron Lanier, a long-time internet guru and the author of a fascinating book, You are Not a Gadget. He suggests that there is a discomfiting parallel between the recession and the information age. He talks about his forthcoming book The Fate of Power and the Future of Dignity, suggesting “that a file-sharing service and a hedge fund are essentially the same things.” Fascinating. He says:

 “[T]he rise of networking has coincided with the loss of the middle class, instead of an expansion in general wealth, which is what should happen. But if you say we’re creating the information economy, except that we’re making information free, then what we’re saying is we’re destroying the economy.”

He illustrates, pointing to parallels between the mortgage bubble and software piracy:

“To my mind an overleveraged unsecured mortgage is exactly the same thing as a pirated music file. It’s somebody’s value that’s been copied many times to give benefit to some distant party. In the case of the music files, it’s to the benefit of an advertising spy like Google [which monetizes your search history], and in the case of the mortgage, it’s to the benefit of a fund manager somewhere. But in both cases all the risk and the cost is radiated out toward ordinary people and the middle classes—and even worse, the overall economy has shrunk in order to make a few people more.”

Thought-provoking and I look forward to reading the book. To the extent that both the mortgage bubble and file-sharing concern information and value, he is undoubtedly correct. I also think that Lanier’s statements provide further illustrations of the need to rethink our ways of analyzing cyberspace and cyberlaw. Indeed, I’m no fan of the exceptionalist / unexceptionalist debate (and even then, tilt more towards the unexceptionalists). Pursuant to several articles I’m working on now, I think we need different ways of approaching the topic, perhaps such as those made by Jacqueline Lipton.

HT @FrankPasquale for the article in Smithsonian Mag. Cross-posted to Infoglut Tumblr.

Intellectual Property Scholars Conference in beautiful Chicago

A week ago, I got to catch up with old friends and make new ones at the Intellectual Property Scholars Conference. This year it was held in Chicago at Depaul. The program was jam-packed with interesting presentations, and I also got the opportunity to sneak in a few slices of delicious Giordano’s pizza.

Chicago is a beautiful town.

South Michigan Avenue at night
Crown Fountain
Cloud Gate sculpture in Millennium Park

It wasn’t all play. My presentation focused on my ongoing Cyberskills project, which uses live, online role-playing simulations to teach law. I presented portions of two papers, the abstracts for which are provided below:

Best Practices for the Law of the Horse:
Teaching Cyberlaw (and Law) with Online Role-Playing Simulations

Judge Frank Easterbrook once mocked Cyberlaw as “the law of the horse,” a subject lacking in cohesion and therefore unworthy of inclusion in the law school curriculum. This Article responds squarely to Easterbrook’s challenge and concludes that Cyberlaw is a course that can be taught particularly well in law schools when learning occurs through live, online role-playing imulations. These techniques have been successfully used by the author for the past three years, casting students as lawyers in realistic simulations that unfold on the live internet. Unlike other Articles responding to Easterbrook, this Article bypasses a doctrinal or theoretical approach, avoiding (for now) the longstanding debate between Cyberlaw exceptionalists and unexceptionalists. Because Easterbrook’s attack is ultimately educationally rooted, the Article takes a pedagogical approach, concluding that Cyberlaw presents a unique opportunity for holistic and experiential legal education that combines doctrine, theory, skills, and values in a highly engaging manner. Accordingly, in light of the recent studies Best Practices in Legal Education and the Carnegie Report, the Article explains how the author came to develop such a course and outlines how such a course might be structured. The Article concludes with a response to Easterbrook’s existential (“surface”) and normative (“illumination”) attacks on Cyberlaw, concluding that both are without merit.

Navigating the Uncharted Waters of Teaching Law
with Online Simulations

The internet is more than a place where the Millennial Generation communicates, plays, and shops. It’s also a medium that raises issues central to nearly every existing field of legal doctrine, whether basic (such as torts, property, or contracts) or advanced (such as Intellectual Property, Criminal Procedure, or Securities Regulation). This creates tremendous opportunities for legal educators interested in using the live internet for experiential education. This Article examines how live websites can be used to create engaging and holistic simulations that tie together doctrine, theory, skills, and values in ways impossible to achieve with the case method. In this Article, the author discusses observations stemming from his experiences teaching law courses using live, online roleplaying simulations that cast students in the role of attorneys. The Article concludes that such simulations have significant benefits for law students, and surprisingly, can also benefit scholars who use simulations proactively to deepen the synergies between their teaching and scholarship. However, the resources required for simulations may also exacerbate long-standing systemic tensions in legal education, particularly regarding institutional resources as well as the sometimes conflicting roles of faculty as teacherscholars. Because the American Bar Association will almost certainly, and appropriately, require law schools to expand their simulation offerings, the benefits and tradeoffs of simulations teaching must be addressed now.