Regulation of the Internet: Three Persistent Fallacies

Abstract

This article responds to three papers in a symposium on Internet regulation. The articles all argue that the Internet is a novel phenomenon that promises to transform legal regulation. My main claim is that each article illustrates a fallacy that pervades the Internet regulation literature. An article by David Post and David Johnson offers a normative argument for governmental non-regulation of the Net. But their argument, like many arguments about jurisdiction over Internet transactions, erroneously assumes that cyberspace is a place hermetically separated from the "real" world. Dan Burk's article, which analyzes the Internet's effect on national copyright regulation, rests on a common but incomplete understanding of how nations regulate transnational transactions. Henry Perritt argues that the Internet will strengthen international law. This argument exemplifies the Internet literature's unjustified optimism about the promise of cheap, plentiful information. I contend that all three articles err because of an obsessive focus on what is new about the Internet, at the expense of what is old about it.