Mapping Legal Metaphors in Cyberspace: Evolving the Underlying Paradigm, 16 J. Marshall J. Computer & Info. L. 579 (1998)

Courts often succumb to the temptation to analogize new electronic media to present technologies since the courts can rely upon already existing models. However, the arrival of cyberspace and the World Wide Web has stretched the concept of linking legal precedents to actions to the breaking point. Any attempt to map existing legal metaphors, based on mechanical similarities, onto territory as unknown and changeable as cyberspace is difficult. Instead, it may be more productive to view the World Wide Web as an organic entity or model similar to that of a developing community. The shift from print to electronic information technologies provides the law with this new environment which is less structured and, consequently, more versatile and volatile. Rather than selecting a particular metaphor based on a mechanic model, the best procedure to determine the rights and duties of participants in cyberspace is to apply basic principles of fairness and justice. This means evolving the underlying paradigm to reflect its developing organic nature as a commonly shared resource. Nevertheless, differing views exist as to the concept of regulating use of such a commonly shared resource. Cyberspace is experiencing social dilemmas, which are common to humans interacting with each other. One important challenge is how a very large and demographically diverse group can organize and govern themselves to obtain collective benefits in situations where the temptations to free-ride or break commitments are substantial. While the notion exists that the federal government should control the World Wide Web, the World Wide Web has proven relatively resistant to centralized control. After evaluating the pros and cons of various issues, one commentator has concluded that management of the World Wide Webþs resources can be improved by relying less on political management and more on property rights and market forces