Introduction

INTERNET LAW SYMPOSIUM Introduction Margaret Chon° In the movie II Postino, Mario, an Italian postal worker, encounters the love of his life at the same time that he becomes acquainted with the Chilean poet-in-exile Pablo Neruda. The lowly mailman asks the established poet to teach him how to write love poetry. Neruda introduces him to the idea of the "metaphor." This idea transforms the life of the younger man and succeeds in attracting his beloved to him. The idealistic new poet's life as a family man then triggers encounters with corrupt local government officials, and eventually leads to his untimely death at a political demonstration. The search for the right metaphor for the Internet occupies some of the "best minds of my generation."' And as with the protagonist in II Postino, academics' search for the "killer-app"2 metaphor is intertwined with their attitudes toward government. The themes of metaphor and government underlie the otherwise disparate methodologies and conclusions generated in the Internet Symposium articles.3 The various authors could be categorized according to their preferred metaphors, but I prefer to categorize them by their attitudes toward governmental involvement in regulation of the Internet. Three see government as a necessary evil, two others view it as necessary and good, and two more approach it as sufficient but not necessary. Ninth Circuit Judge Alex Kozinski, who holds the perhaps oxymoronic status of a libertarian judge, expresses his skepticism about the search for a metaphor by rearranging the letters of "information * Associate Professor, Seattle University School of Law. 1. Allen Ginsburg, Howl, in HOWL AND OTHER POEMS (1956). 2. Killer application, that is, a terrific software package. 3. The Articles are based on a live symposium held at Seattle University in September 1996. Internet Law Symposium '96: Second Annual International Law & Policy Summit for the Global Internet (September 9-10, 1996). Seattle University Law Review [Vol. 20:613 superhighway" to spell "enormous hairy pig with fan." In tweaking the over-used metaphor of the infobahn, he leads into the observation that metaphors "tend to hide what the real issues are." What are some of those issues for him? "[T]here's some really pretty extreme things in here. Do we really mean that communications on the airways can't be controlled at all? For example, how about blackmail? How about espionage? How about child pornography? Are you in favor of being able to download snuff flicks?" With these questions, Judge Kozinski expresses not only his impatience at the metatranscendent solutions that the right metaphor will supposedly work upon specific legal problems, but also a skepticism about what I term the cyberlibertarian perspective. He is suggesting, astonishingly, that law might provide rules to govern human activities on the Internet. This suggestion is startling from someone who might be predicted to embrace the anarchic, free-wheeling, individualistic qualities of the Internet. The thought astonishes too because so much of the published legal discourse on the Internet to date has focused on rules that emanate from sources other than government-sources such as private contractual arrangements or even technical specifications-which regulate behavior on the Internet. 4 Judge Kozinski's metaphor of the hairy pig is somehow a reply to those who argue that legal rules should always be decentralized. It is tied to an optimism about the ability of government to manage this new medium in familiar ways, despite his general distrust of government interference in private matters. Jonathan Wallace and Michael Green, on the other hand, are extremely serious about both trusting the power of analogy and metaphor and mistrusting the power of government. They believe that a new communication medium quickly gives rise to a new analogy or metaphor and that a government that works with inadequate models for the technology is a dangerous government. Underlying their search for a metaphorical Rosetta Stone is a skepticism about the judiciary's 4. See generally David R. Johnson & David Post, Law and Borders-The Rise of Law in Cyberspace 48 STAN. L. REV. 1367 (1996); David Post, Anarchy and State on the Internet: An Essay on law-Making in Cyberspace, 1995 J. ONLINE L. art. 3 (1995) <http://warthog.cc.wm.edu/ law/publications/jol/post.hml>; Robert Dunne, Deterring Unauthorized Access to Computers: ControllingBehaviorin Cyberspace Through a ContractLaw Paradigm,35 JURIMETRICS J. 1 (1994); Trotter Hardy, The ProperLegal Regime for "Cyberspace", 55 PITTSBURGH L. REV. 993 (1994); A. Michael Froornkin, The Internet as a Source of Regulatory Arbitrage, in BORDERS IN CYBERSPACE 129 (1997) (also found at <http://www.law.miami.edu/--froomkin/artides/ arbitr.htm>). But see Keith Aoki, (Intellectual)Propertyand Sovereignty: Notes Toward a Cultural Geography of Authorship, 48 STAN. L. REV. 1293 (1996); Julie E. Cohen, The Right to Read Anonymously: A Closer Look at Copyright Management, 28 CONN. L. REV. 981 (1996); Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. REV. 1403 (1996). 1997] Introduction ability to fashion a coherent First Amendment law. Along the way, they also express some doubt about government's role in regulating speech, a doubt that is of course embedded in the language of the First Amendment itself. The authors note that medium-specific First Amendment doctrine, which "examines the underlying technology of the communication to find 'the proper fit between First Amendment values and competing interests,"'" has resulted in a patchwork of rationales unsatisfying to those who value either consistency or a broad ambit of free speech. While the Internet as a medium of communication can be analogized to many existing forms of communication, it may arguably be so unique as to justify protection even broader than that accorded to print. Wallace and Green therefore propose that the Internet should be likened to a printing press or virtual town hall for First Amendment purposes. Despite their opposite approaches to the question of metaphor, I place Wallace and Green with Judge Kozinski in the camp of those who accept government as a necessary evil in Internet lawmaking. By contrast, two other authors display what I call a necessary-andgood approach toward government and the Internet. George Chen describes a comprehensive plan of top-down regulation in Taiwan so as to implement its NII initiative. The government's role seems unquestioned as well as pervasive. For example, Chen describes a recent court decision involving copyrighted material downloaded from the Internet to make a CD-Rom compilation, which was then offered by the defendant as a free gift to accompany his magazine. Despite raising a fair-use defense that was premised on the nature of the Internet as facilitating the circulation of information, the defendant was found guilty and sentenced to seven months imprisonment (su (...truncated)