views in this new political space opened up by the Net.
I am not arguing for world government. Indeed, the impossibility of such an idea is the focus of much of the next chapter. My argument instead is that we must take responsibility for the politics we are building into this architecture, for this architecture is a sovereign governing the community that lives in that space. We must consider the politics of the architectures of the life there.
I have argued that we should understand the code in cyberspace to be its own sort of regulatory regime, and that this code can sometimes be in competition with the law’s regulatory regime. For example, we saw how copyright law could be inconsistent with the regulatory regime of trusted systems. My argument is that we should understand these to be two regulatory regimes in competition with each other. We need a way to choose between them. We need a way to decide which should prevail.
As this system of regulation by code develops, it will contain its own norms, which it will express in its structures or in the rules it imposes. If the predictions of law and economics are correct, these norms will no doubt be efficient, and they may well be just. But to the extent that justice does not track efficiency, they will be efficient and unjust. The question will then be: How do we react to this gap?
There is an important pattern in this competition between code and law. Law, at least as it regulates international relations, is the product of extended negotiations. Countries must come to an agreement about how law will regulate and about any norms that they will impose on private ordering. As their work relates to cyberspace in particular, this agreement is quite significant. It will require the nations of the world to come to a common understanding about this space and to develop a common strategy for dealing with its regulation.
Chapter 15. Competition Among Sovereigns
Conflicts
Here are two stories about the power of sovereignty, one you’re likely to have heard of, and the other not.
1. Protecting the French
The French don’t like Nazis (and resist your French-bashing urge to add “anymore” to that sentence; remember, but for the French, we likely would not have a nation). French law doesn’t let the Nazis fight back. As in Germany, it is a crime in France to promote the Nazi party and sell Nazi paraphernalia. The French are vigilant that this virus of an ideology not revive itself in Europe.
French law is different from American law in this respect. The First Amendment would block any viewpoint-based limitation on political propaganda. The state could no more block the sale of Nazi paraphernalia than it could block the sale of Republican buttons. Free speech means that the viewpoint of a political relic can’t determine whether the relic is sold.
Yahoo! is an American company. In 1999, Yahoo! opened a French branch, and, at Yahoo! France, Yahoo! opened an auction site.[1] Like eBay, this site permitted individuals to list items for auction. Like eBay, the site ran the auction and helped facilitate the ultimate sale of the items auctioned.
Very soon after the site opened, and contrary to French law, Nazi paraphernalia began to appear on the Yahoo! auction sites available for sale in France. Some in France were not happy. In 2000, a lawsuit was filed against Yahoo!, demanding Yahoo either remove the Nazi paraphernalia from its site or block access to the Nazi paraphernalia.[2]
This in turn made Yahoo! unhappy. This was the Internet, Yahoo! insisted. It is a global medium. There was no way to block French citizens from the Yahoo! sites. And it would be absurd if the rules of one country became the rules of the world. There would be a race to the bottom (or top, depending upon your perspective) if every country could force every website in the world to comply with its own law. France should just accept that in the world of the Internet, the rule of France won’t be absolute. As the Ninth Circuit Court of Appeals summarized Yahoo!’s argument, “Yahoo! wants a decision providing broad First Amendment protection for speech . . . on the Internet that might violate the laws . . . of other countries”.[3]
French Judge Jean-Jacques Gomez didn’t agree with Yahoo! In an opinion issued in May 2000, the judge required Yahoo! either to remove the Nazi paraphernalia or to block French citizens.[4] In a second order issued in November, the French court directed Yahoo! to comply within three months, or pay 100,000 French francs per day of the delay.[5]
The Internet was outraged. Thousands of websites criticized the French Court’s decision, and hundreds of newspapers followed suit. France was destroying “free speech” on the Internet by forcing its rule on anyone who used the Internet anywhere. As the Cato Institute’s Adam Thierer commented,
Thankfully, Americans take free speech a bit more seriously than the Brits, the French, the Germans and rest of the world. And, yes, America could become the guardian of free speech worldwide by offering the protection of the First Amendment over the Net to millions of people who have been denied the right to speak freely in their own countries.[6]
2. Protecting Hollywood
In 2000, a serial entrepreneur, Bill Craig, launched a Toronto-based service for the World Wide Web called iCraveTV. iCraveTV was designed to stream ordinary television across the Internet. Under Canadian law, at least as interpreted at the time,[7] iCraveTV believed it didn’t need permission to stream broadcast television across the Internet lines. Under Canadian law, so long as the broadcast itself wasn’t changed, you could use any technology to extend the reach of the broadcast.[8] So Craig bought his servers, fired up the streams, and with a much-hyped launch, sat back to wait for the customers to come. And come they did, by the millions. Craig’s service was an instant success. It seemed lots more than Craig craved TV.
Not long after Craig’s launch, however, he began to discover that not everyone loved Craig’s idea. In particular, U.S. copyright holders were not too keen on the free TV that Craig had created. While one was free in
