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WESTERN FRONTIER OR FEUDAL SOCIETY?: METAPHORS and PERCEPTIONS of CYBERSPACE by Afred C

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WESTERN FRONTIER OR FEUDAL SOCIETY?: METAPHORS and PERCEPTIONS of CYBERSPACE by Afred C WESTERN FRONTIER OR FEUDAL SOCIETY?: METAPHORS AND PERCEPTIONS OF CYBERSPACE By Afred C. Yen t ABSTRACT This Article examines how metaphors influence perceptions of cy- berspace. Among other things, the Article studies the comparison of cy- berspace to the American western frontier and the metaphor's construc- tion of cyberspace as a "place" whose natural characteristics guarantee freedom and opportunity. This supports an often-made claim that cyber- space is different from real space, and that government should generally refrain from regulating the Internet. The Article surveys the basis of the Western Frontier metaphor in academic history and popular culture, and concludes that the metaphor misleads people to overestimate cyberspace's "natural" ability to guaran- tee freedom and opportunity. The Article accomplishes this, in part, by offering feudal society as a metaphor for cyberspace and showing how prominent features of cyberspace correspond to key components of feu- dal society. The Article does not claim that cyberspace is thoroughly feudal, but it does argue that the feudal society metaphor valuably dis- lodges the Western Frontier metaphor and reminds us that law has an important role to play in shaping the future of the Internet. TABLE OF CONTENTS I. IN TRODU CTION ..................................................................................................... 1208 II. THE INTERNET AND CYBERSPACE ......................................................................... 1214 III. COMPARING CYBERSPACE TO THE WESTERN FRONTIER ....................................... 1216 A. The Frontier Thesis and American Popular Culture .................................... 1216 © 2002 Alfred C. Yen t Professor of Law, Boston College Law School. The author would like to thank the faculties of Boston College Law School, Boston University Law School, Hastings Law School, and the University of Houston Law School for valuable feedback given dur- ing faculty colloquia. Individual thanks are also owed to Keith Aoki, Wendy Gordon, Jeremy Paul, Justin Hughes, Jerry Kang, Joe Liu, Michael Madison, Mike Meurer, Mau- reen O'Rourke, Mary Bilder, Avi Soifer, and Dan Coquillette for their thoughtful ideas and comments. Sheila Bautista, Pauline Christo, Zachary Heiden, Jerry Marr, Sophia Sasaki, Dan Scales, and Jeff Strom provided able and helpful research assistance. Finally, the author would like to thank Mr. and Mrs. Darald and Juliet Libby for their generous financial support through the Boston College Law School summer faculty development program. 1208 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:1207 B. Cyberspace and the W estern Frontier .......................................................... 1222 C. The Western Frontier Metaphor and Legal Regulation of the Internet ....... 1225 D. Evaluating the W estern Frontier Metaphor ................................................. 1229 IV. CYBERSPACE AND FEUDAL SOCIETY .................................................................... 1232 A . Feudal Society ............................................................................................. 1232 B . Internet G overnance .................................................................................... 1236 C. The Feudal Character of Cyberspace .......................................................... 1239 1. The Fragmentationand Privatizationof State Power.......................... 1239 2. The Development of Cybermanors....................................................... 1243 V. THE EFFECT OF THE FEUDAL SOCIETY METAPHOR ............................................... 1248 A. User Exit and Emerging Feudal Practices ................................................... 1250 B. Contracts of Adhesion and Emerging Feudal Practices .............................. 1254 C. Intellectual Property and Emerging Feudal Practices .................................. 1256 1. The DMCA and Creationof PrivateJudiciaries .................................. 1257 2. Intellectual Property Cases and the Control of Cyberserfs ................. 1259 V I. CO N CLU SIO N ........................................................................................................ 1262 I. INTRODUCTION This Article offers feudal society as a metaphor for the emerging so- cial organization of the Internet. It does so to illustrate how metaphors shape thinking about the Internet and to challenge the sometimes mislead- ing comparison of the Internet to the Western Frontier.' 1. Examples from academic legal writing include STUART BIEGEL, BEYOND OUR CONTROL? CONFRONTING THE LIMITS OF OUR LEGAL SYSTEM N THE AGE OF CYBER- SPACE 4, 13-18 (2001) (discussing use of "Wild West" metaphor); Mary Elizabeth Fitzgibbons, Foreword to the Fall 1999 Issue, 4-Fall J. TECH. L. & POL'Y 0, at *2 (1999) ("Cyberspace has often been compared with the 'Wild West' of America's frontier days. This is an apt metaphor."), available at http://joumal.law.ufl.edu/-techlaw/4- 3/Foreword.html; Llewellyn Joseph Gibbons, No Regulation, Government Regulation, or Self-Regulation: Social Enforcement or Social Contractingfor Governance in Cyber- space, 6 CORNELL J.L. & PUB. POL'Y 475, 475 (1997) ("'Cyberians' are present at the creation of the jurisdiction of cyberspace and at the closing of the electronic frontier."); Raymond Ku, Foreword:A Brave New Cyberworld?, 22 T. JEFFERSON L. REV. 125, 125- 26 (2000) (discussing connections among cyberspace, the electronic frontier, and the Western frontier); Shamoil Shipchandler, Note, The Wild Wild Web: Nonregulation as the Answer to the Regulatory Question, 33 CORNELL INT'L L.J. 435, 436 (2000) ("To- day's Wild West is the Internet."); David Yan, Virtual Reality: Can We Ride Trademark Law to Surf Cyberspace?, 10 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 773, 777 (2000) ("Originally, however, cyberspace was like the Wild West."). Examples from general commentators include Andrew P. Morriss, The Wild West Meets Cyberspace, THE FREEMAN, vol. 48, No. 7 (July 1998); Paul Ashdown, From Wild West To Wild Web: Public Intellectuals & the Cyberspace Frontier,EXECUTIVE SPEECHES, vol. 15, No. 2, 699 (2000); John Perry Barlow, Jack In, Young Pioneer!, Key- note Essay for the 1994 Computerworld College Edition, 6-7, available at http://www.eff.org/Infra/virtual frontier barloweff.article (Aug. 11, 1994) [hereinafter Barlow, Jack In] (urging young people to connect to the Internet as one might have urged 2002] METAPHORS AND PERCEPTIONS OF CYBERSPACE 1209 The application of metaphor to the Internet is entirely sensible. It is an unavoidable and useful human habit to compare unfamiliar objects to fa- miliar ones. People use apt metaphors because they stimulate the imagina- tion, drawing attention to patterns and possibilities that would otherwise have escaped attention. If perceptions stimulated by metaphor become suf- ficiently ingrained, people may adopt them as reality and make them the basis for future beliefs and actions. At the same time, however, it is impor- tant to separate the application of metaphor from the complete apprehen- sion of reality. Metaphors work because they provide perspective, but the adoption of one perspective necessarily omits insights offered by other perspectives. Accordingly, insight gets lost when one metaphor assumes enough prominence to crowd other ones out, especially if the prominent metaphor has misleading qualities. It therefore makes sense to develop and use a balanced set of metaphors when studying any object.2 a young person to go West); Mitchell Kapor & John Perry Barlow, Across the Electronic Frontier, Electronic Frontier Foundation, 4, available at http://www.eff.org/ Publications/JohnPerryBarlow/HTML/eff.html (July 10, 1990) ("Cyberspace is a fron- tier region"); John V. Lombardi, Killer Applications, the Net, and the Wild, Wild, West, Address at the Florida Government Technology Conference, 6, available at http://jvlone.com/cyber2.html (Oct. 10, 1995). Examples from the press include Internet Surfing Can Cut Into 'People Time', UPI, Feb. 16, 2000, 11-14 (comparing Internet to unsettled Western frontier), avail- able at LEXIS, Nexis library, UPI file; Stephen Pounds, MCI Chairman Sees Internet as 'The Wild West', PALM BEACH POST, Apr. 30, 1995, at 3E; Lawrence J. Siskind, Settling the Wild Cyber Frontier: Domain Names Should be Treated as Property, TEX. LAW., Nov. 22, 1999, at 43 ("Across the vast expanse of cyberspace, wildcatters are at work, staking claims over thousands of domain names, hoping to strike it rich with one or more."); Mark Trumbull, Taming the 'Wild West' of the Global Internet, CHRISTIAN SCI. MONITOR, Nov. 14, 1995, at 12; Dawn Wilensky, The Internet, the Next Retailing Fron- tier, DISCOUNT STORE NEWS, Dec. 4, 1995, at 6. 2. See MILNER S. BALL, LYING DOWN TOGETHER: LAW, METAPHOR, AND THEOL- OGY 22 (1985) (describing the importance of metaphor in shaping reality, the power of "preemptive metaphors," and the need for "access to alternate metaphors"); Clay Calvert, Comment, Regulating Cyberspace: Metaphor, Rhetoric, Reality, and the Framing of Le- gal Options, 20 HASTINGS COMM. & ENT. L.J. 541, 542-43, 547-49 (1998) (describing the use of the information superhighway metaphor for the Internet and its limitations); A. Michael Froomkin, The Metaphor is the Key: Cryptography, the Clipper Chip, and the Constitution, 143 U. PA. L. REv. 709, 718 (1995) ("As more and more settlers arrive in cyberspace, the nature of this new landscape will depend critically on the legal metaphors that the colonists choose to bring with them.");
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