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David G. Post is the I. Herman Stern Professor of Law at the Beasley School of Law at Temple University, where he teaches intellectual property law and the law of cyberspace.  In his new book In Search of Jefferson’s Moose: Notes on the State of Cyberspace, he uses Thomas Jefferson’s views on natural history, law and governance in the New World to illuminate cyberspace’s technological, legal, and social complexities.  In the post below he looks at the implications of a court case in Italy.  Read his previous post here.

In a kind of reprise of the well-known Yahoo! case (involving a French lawsuit against Yahoo! for displaying Nazi memorabilia on its auction website in violation of French law) from a several years ago, four Google executives are facing criminal charges in an Italian court arising out of a third-party posting of a video at a Google site:

The Italian case relates to a three-minute movie uploaded to Google Video’s Italian site in 2006. In the video, four teenagers from the Northern city of Turin are seen teasing a boy with Down syndrome. After Google received two complaints about the content, the company says it removed the clip within 24 hours. But Italian officials, who didn’t return calls for this article, argue the video should never have been allowed to be uploaded in the first place.

Google concedes the content caused offense. In a statement the company says: “As we have repeatedly made clear, our hearts go out to the victim and his family. We are pleased that as a result of our cooperation the bullies in the video have been identified and punished.”

There’s a great deal one can say about this — indeed, one might even say you could write a whole book about it! At one level, it illustrates an interesting and important difference in substantive law: US law, through sec. 230 of the Communications Decency Act (oddly enough), provides intermediaries (like Google here) a very broad immunity from liability for third-party-provided content, while Italian law (I take it, not knowing much about Italian law) does not. It’s an important difference, because it reflects (presumably) a real difference of opinion, and of values, and of policy.

The hard question is: how can we realize the benefits of a truly global communications medium like the Net — the first truly global medium we’ve ever come up with, and whose promise is unimaginably immense — while different sovereigns impose their different visions of the good onto network traffic? We do not have a good answer for that, at the moment. The conventional wisdom here leads to results that are absurd.  To summarize: Italy can legitimately assert jurisdiction over Google if Google’s conduct is having “significant effects” within Italy, and Google has tangible assets (machines, offices, typewriters, servers) that are located in Italy (or executives who might set foot someday on Italian soil). Viewed from Google’s perspective, and the question “With what law does Google have an obligation to comply?”, the conventional wisdom says that Google has the obligation to comply with the law of all sovereigns within whose territory it has tangible assets, or where its executives might travel.  I call this “Jurisdictional Whack-a-Mole.”

“If you (or your assets) pop up in Singapore, . . . Wham!! Singaporean law can be – can legitimately be – applied to you. Your daughter’s junior high school newsletter, once posted on the Web, is subject to Malaysian, and Mexican, and Latvian law, simultaneously, because it may be having “significant effects” in one (or all) of those countries, and . . . the school’s obligation to comply with those laws is defined by the likelihood that it has assets in any one of them, or that any of its officers might travel to any of them.

That’s a strange kind of law – law that only gets revealed to the interacting parties ex post, and which can therefore no longer guide the behavior of those subject to it in any meaningful way.

This is a really hard problem, and it is one that we need to solve. If I had a simple solution that I could summarize in a brief blog posting, I would do so — and I would not have felt the need to write a whole book about it. I’m hoping the book’s website becomes a focus for some discussion about all this, because I’m pretty certain that we could use more discussion about it.

David G. Post is the I. Herman Stern Professor of Law at the Beasley School of Law at Temple University, where he teaches intellectual property law and the law of cyberspace.  In his new book In Search of Jefferson’s Moose: Notes on the State of Cyberspace, he uses Thomas Jefferson’s views on natural history, law and governance in the New World to illuminate cyberspace’s technological, legal, and social complexities.  In the post below he looks at how Jefferson’s moose can guide us towards an understanding of the internet.

In 1995, I wrote a small essay for the Electronic Frontier Foundation’s then-newfangled “website,” entitled “Jefferson in Cyberspace.” The thesis was this: the great opposition between Jefferson and Hamilton – between de-centralizers and centralizers, Republicans and Federalists, between centripetal and centrifugal forces, chaos at the frontier and order projected from the center – was being played out in real time, before our eyes, in and around the early battles to regulate and control the emerging global inter-network – “the Internet.” And, I (rather glibly) suggested, in this most radically de-centralized of networks – the one that managed to span the entire planet without having anyone in charge – Jefferson and the Jeffersonians seemed to have the upper hand.

It was, to be candid, too flip – a blog posting before there were blogs, an interesting little idea without a great deal of deep thinking behind it. But in contrast to many of my interesting little ideas, the more I thought about this one – which I was to do, off-and-on, for the next dozen years or so – the more interesting it became. There really did seem to be something “Jeffersonian” about the Net; it was, somehow, obvious (and many people commented on it at the time), but I couldn’t quite put my finger on exactly what it meant, or what made it so. And the world of Internet law and Internet policy really did seem to be divided between Jeffersonians and Hamiltonians, who came forward with their opposing positions on all the big issues of the day, from the exercise of jurisdiction over Internet conduct to the operation and management of the domain name system, the regulation of Internet anonymity, encryption policy, the scope of free speech protection on the Net . . . .

And then there was Jefferson himself. The more I read of (and by) him, the more interesting he became, too. The variety of his intellectual pursuits (from architecture to mineralogy to zoology, with pretty much everything in between) was so astonishing; he may well have been the only person in history who was, to use Isaiah Berlin’s well-known dichotomy, both a great Hedgehog and a great Fox, propounder of some of history’s greatest Big Ideas and simultaneously one of the planet’s leading experts on cartographic techniques, viniculture, canal-building, plow design, linguistic evolution, paleontology, . . . . What was he up to? What held it all together? What connected the Declaration of Independence to the Big Bone Lick (Ky.) fossils that he pored over in the White House basement? The Summary View of the Rights of British America to the study of Native American languages? The Virginia Statute for Religious Freedom to the design of meteorological measuring devices?

He was on to something, that much was pretty clear; but damned if I could say exactly what it was. And the closer I looked, the harder it got.

Enter, the moose. In 1787, Jefferson had the complete skeleton and carcass (with antlers) of an American moose, 7 feet tall at the shoulders, shipped to him in Paris (where he was serving as the American Minister to the court of Louis XVI), re-assembled, and installed in the entrance hall of his residence.

It’s an amusing little episode, Jefferson at his most lovably eccentric (and you may recall it used for that purpose in the popular film from a few years back, “Jefferson in Paris”). But really – what was he up to? In a letter to a friend, he called the moose “an acquisition more precious than you can imagine.” Was he serious?

Asking the question that way, it turns out, helps unlock some of Jefferson’s most interesting, and most revolutionary, ideas, for the moose stands, as it were, at the hub of a peculiarly Jeffersonian network of ideas and problems and plans. To begin with, there’s the question of scale. Jefferson cared deeply about scale, about the principles – the “laws of nature and nature’s God,” as he put it – governing the growth and size of things, how they get bigger, how they get smaller, and why. The moose was part of an argument Jefferson was having about the relative sizes of New World versus Old World animals. A theory, gaining ground among European scientists, held that animals in the New World were actually smaller – degenerate – versions of their Old World counterparts. Jefferson thought it was hogwash; he devoted much of his book “Notes on the State of Virginia,” published the year before, to a detailed empirical refutation, complete with tables and charts and exhaustive listings of animals large and small. And the moose – the largest of the New World quadrupeds, far larger than any of its Old World relatives – was to be the coup de grace, as it were, the final nail in the coffin.

It all looks a bit ridiculous in retrospect, but it wasn’t ridiculous at the time. The study of animal size and scale not only pointed the way to the development of Darwin’s theory of evolution by natural selection, it helped Jefferson solve one of history’s great scaling problems: the Problem of the Extended Republic. “Montesquieu’s Law,” as it was sometimes known, held that republican government – government by the People, where the governed control the governors – couldn’t scale; it could never be made to work over large territories. Jefferson thought that was hogwash too, and he spent much of his life figuring out how to scale up republican institutions so that they could span a continent. The only thing more incredible than the plans he came up with to get that done is the fact that most of it actually came to pass.

Scaling questions, it turns out, are of the deepest importance for our understanding of the Internet, because the Internet is a phenomenon defined entirely by its scale: the network we call “the Internet” is the one, out of the hundreds of thousands or millions of networks out there, that somehow got to be really, really, big. As someone once put it: It’s not big because it’s the Internet, it’s “the Internet” because it’s big. How did that happen? Why this network and not some other? Can it keep growing and, if so, for how long?
Unless we understand all that, we don’t really understand this new place at all.

But is it, really, a “new place”? I’ve had many, many discussions over the years with my colleagues about that, and it finally hit me: time to bring out the moose! Jefferson didn’t want the moose only to persuade, he wanted it to dazzle (and a moose is, to be honest, a pretty dazzling creature). He wanted viewers to step back and say: “Whoa – we’ve never seen anything like that before!” He wanted to dazzle because he wanted people to believe that there really was a “new world” over there, because if they believed that then they could sweep aside old prejudices and old ways of thinking and begin the process of re-engineering society, and government, and politics. He had plans for the new world, plans that could never be realized until people believed that it was, in fact, a “new” world, and when they believed that, it was, amazingly enough, more likely to become true.

We are going to need some new thinking about society, and government, and politics for the global Net; our old ways of thinking, based on lines projected onto a map, will not work, not at a global scale, and not on a global network where everyone can communicate instantaneously with everyone else. I realize I need to persuade you of that – and I’ve tried to do so, in my book. But I also need to find a moose, something to dazzle the inhabitants of the Old World – not Europe, but the “old,” pre-Internet world of, say, 1980 or 1950 – so that they can see that this really is a new place, with things in it that they have not seen and cannot even imagine. “Whoa – we’ve never seen anything like that before!” Then (but possibly not until then) we can start thinking about how we can, once again, scale up our legal and political institutions and processes, this time to global scale, so that they work better in this new place.

So what does cyberspace’s moose look like? Well, I have some ideas and some candidates – but my publisher told me not to give away the punch line to the book. [Hint: it’s a gigantic compendium of information, available in over 50 languages, put together by hundreds of thousands of anonymous volunteers, without pay, and it serves as the most widely-consulted reference work ever written). I’d like to hear your ideas, though – come join the discussion at http://jeffersonsmoose.org.