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>Juries and the New Common Law of Cyberspace
>
>David G. Post
>Plugging In, September 2000
> �In Suits at common law, where the value in controversy shall exceed twenty
>dollars, the right of trial by jury shall be preserved, and no fact tried by a jury
>shall be otherwise re-examined in any Court of the United States, than according to
>the rules of the common law.�
>
>A confession: I don�t spend a lot of time thinking about the 7th Amendment to the US
>Constitution, quoted in full above. Even worse, I tend to think about it only when I
>receive a summons to jury service (to which I react with something less than
>unbridled enthusiasm) or to a news report of some runaway jury award -- the million
>dollar �hot coffee judgment,� stuff like that. The 7th Amendment just does not give
>me that warm and fuzzy feeling I get when contemplating, say, the First Amendment, or
>the Fourth.
>
>But I�m starting to come around. The constitutional system of the United States is
>based on a very simple idea: that the people are sovereign, that all law-making
>power derives ultimately from them, and that law cannot legitimately be imposed upon
>them unless they have a voice an equal voice, at that -- in its creation. In Thomas
>Jefferson�s always-quotable words, �the essence of a republic is action by the
>citizens, in person in affairs within their reach and competence, and in all others
>by representatives, chosen, and removable, by themselves.� These principles:
>�. . . form the bright constellation which has gone before us and guided our steps
>through an age of revolution and reformation. The wisdom of our sages and blood of
>our heroes have been devoted to their attainment. They should be the creed of our
>political faith, the text of civic instruction, the touchstone by which to try the
>services of those we trust; should we wander from them in moments of error or alarm,
>let us hasten to retrace our steps and regain the road which alone leads to peace,
>liberty, and safety.�
>
>Ringing words. The notion of actually building a government on this �bright
>constellation� of ideas was deeply and profoundly radical when the Constitution was
>framed; in 1787, governments that could even claim to be based on these principles
>were few and far between, to put it mildly.
>
>But over the past 200 years or so the idea that the people are sovereign has been
>transformed -- rather remarkably, when you think about it -- into a kind of
>�self-evident truth,� a principle whose validity we take completely for granted and
>which we never seriously question.
>
>The Constitutional system erected in 1787 is one way not the only way, to be sure --
>to implement this principle. The citizenry elects (Article I) representatives to sit
>in the law-making legislative body; they elect (Article II) a Chief Executive to
>oversee the ways in which law is applied to them; and their elected representatives
>themselves select (Article III) those who will sit as judges when that happens.
>
>And they sit on juries. Though we often overlook it at least, I often overlook it
>the right to a trial by a jury of your peers was considered, and remains, an integral
>part of this intricate law-making system, another mechanism by which popular
>sovereignty is expressed and the people get to �make law.� Jefferson again put it
>nicely:
>�All power is inherent in the people (by which is meant the mass of individuals
>composing the society). They reserve to themselves personally the exercise of all
>rightful powers to which they are competent (as in electing their functionaries
>executive and legislative, and in deciding by a jury of themselves in all judiciary
>cases in which any fact is involved); and they delegate to deputies, named and
>removable for unfaithful conduct by themselves, or to representatives, freely and
>equally chosen, those [powers] to which they are not competent. . . . Being
>competent to judge of the facts occurring in ordinary life, the people have retained
>the functions of judges of facts, under the name of jurors in all judiciary cases in
>which any fact is involved.�
>
>Fine but what does any of this have to do with cyberspace? Here�s what: Like it or
>not, in a small, and often dark, corner of the online world, a �law of cyberspace� is
>being made, by institutions you�ve probably not even heard of. These institutions
>will, I promise you, grow possibly at the kind of warp speed that seems to
>characterize most of what takes place on the global network. We can build them well,
>or we can build them poorly. If we build them well, we will have done much to assure
>the continued growth of this remarkable medium; if we build them poorly, we will have
>squandered a wonderful opportunity and set the stage for a much less pleasant future.
>
>
>Neither I, nor anyone else, for that matter, can tell you exactly what �well built�
>or �poorly built� institutions look like in this context; this is new and untrodden
>ground we�re walking on here. But Jefferson was right: the touchstone by which we
>should try the services of those we trust with law-making power is whether the people
>subject to the law have a voice in making it. If not -- if we have wandered from
>this principle in a moment of error or of alarm we should hasten to retrace our
>steps and to regain the road which alone leads to peace, liberty, and safety.
>
>How well do cyberspace�s law-making institution measure up? Well, let me describe a
>particular set of such institutions, and you can judge for yourself. It�s a bit of a
>tangled story, but important enough that it is worth a bit of your attention.
>
>As I (and others) have described in detail elsewhere, the United States government
>turned over management of the Internet�s domain name system to a private group, the
>Internet Corporation for Assigned Names and Numbers (ICANN), in 1998. Last November
>(1999), ICANN adopted something called the Uniform Dispute Resolution Policy (UDRP)
>that�s it for acronyms, I promise. The UDRP was designed to deal with a set of
>conflicts that had arisen on the Net -- specifically, the well-publicized clashes
>between trademark holders and so-called �cybersquatters� over possession of
>particular domain names in the popular *.COM, *.ORG, or *.NET domains: the clash,
>for instance, arising out of Zippo, Inc.�s claim that its trademark in the word
>�zippo� entitles it to the domain name �zippo.com,� or Porsche, Inc.�s claim that its
>trademark in the word �porsche� entitles it to the domain name �porsche.com,� or
>Planned Parenthood of America�s claim that its trademark in the phrase �Planned
>Parenthood� entitles it to the domain name �plannedparenthood.org,� or any of the
>dozens of other disputes like these that have made their way into courtrooms around
>the world.
>
>The UDRP states that the trademark holder is entitled to the domain name if:
>(i) the domain name is �identical or confusingly similar to� the trademark in
>question;
>(ii) the domain name holder has �no rights or legitimate interests in respect of
>the domain name,� and
>(iii) the domain name holder has registered, or is using, the domain name �in bad
>faith.�
>
>The UDRP relies on a system of private arbitration to apply this rule to particular
>cases; trademark holders can submit claims under the UDRP to arbitration panels,
>chosen from a list of ICANN-approved dispute resolution service providers, for a
>decision about whether or not those three conditions have been satisfied in any
>particular case. In the nine months since this process was put in place, over 2000
>cases have been submitted to UDRP panels and over 1500 decisions handed down; with
>the filing rate steadily increasing, the dispute pipeline may well have three or four
>thousand cases in it by the end of this calendar year.
>
>Is the UDRP �law�? Well, we could have an interesting philosophical discussion about
>that �what is law?� and all that. But I�ll save that for the classroom and the
>scholarly journals. If it walks like a duck and quacks like a duck, it�s a duck
>(even if it has a sign around its neck that says �I�m a dog.�). The UDRP walks and
>quacks like law. It sets out a rule for deciding between competing claims to
>possession of particular resources. It sets up a process to apply that rule on a
>case-by-case basis.
>And it is binding upon those in possession of the resource in question; in the event
>of an adverse ruling, the domain name holder will relinquish possession of the
>contested domain name.
>[[How do I know that? Because ICANN will not permit anyone to offer *.COM, *.ORG, or
>*.NET domain names to the public to become, in the jargon, a �registrar� of domain
>names unless they agree to abide by the decisions of UDRP panels. As a result,
>whomever you may have obtained your domain name from has already agreed to revoke
>your domain name registration, and to transfer the registration to someone else, if
>told to do so by one of these UDRP arbitrators.]]
>
>[[It is, in fact, a little more complicated even than this; the losing party in a
>UDRP dispute does not relinquish the right to take the matter to court. So the
>decisions of the UDRP panels, while binding on domain name holders, are not final
>judgments, at least in theory. But possession, as the old cliche has it, is
>sometimes nine-tenths of the law; as a practical matter, only a minuscule handful of
>the over 1500 decisions that have handed down under the UDRP have been appealed to
>local courts.]]
>
>The UDRP, furthermore, is applicable globally; no matter where you happen to reside,
>no matter where the entity from whom you obtained your domain name is located, no
>matter where the trademark in question may be in effect or where the trademark holder
>is located the UDRP, as applied by these arbitrators, will determine the merits of
>the claim.
>
>For all intents and purposes, this process is creating a new body of international
>trademark law. Now, I don�t have the instinctive distaste for 'private law-making
>institutions' that some of my friends and colleagues have. In my judgment, the
>governing rules about things like �cybersquatting� can be made, and made well, by
>non-governmental institutions. So I don't object in principle to the idea that these
>disputes are being decided outside the traditional framework of courts and
>legislatures and the like.
>
>But does the UDRP process measure up to our touchstone? Do those who are subject to
>this new law have any voice in its creation and application? Hardly. The ICANN
>Board that adopted the UDRP is hardly a �representative� institution; nine of its
>members are self-appointed, nine others have been appointed by �Supporting
>Organizations� in which the domain name holders of the world have no real voice. [In
>fairness to ICANN, I should point out that it is, as we speak, trying to figure out
>some way to make its Board a more representative institution through the election of
>five �At-Large Directors.� But as of this writing and as of the time the UDRP was
>adopted -- nothing has been worked out in that regard.]
>
>And what about the arbitrators? Full disclosure: I myself have served as an
>arbitrator for a UDRP proceeding (Softquad Software v. Eleven-Eleven,
>http://www.eresolution.ca/services/dnd/decisions/0143.htm), and I helped set up one
>of the organizations the Disputes.org/eResolution Consortium,
>http://www.disputes.org and www.eresolution.ca that has received ICANN accreditation
>to handle these claims. So I�m no arbitrator-basher; the organizations that ICANN
>has thus far accredited appear to be reputable, and the arbitrators generally seem to
>be smart, honest folks doing a reasonably good job.
>
>But they can hardly claim to reflect, in any way, the views of those who are subject
>to their rulings. They, too, are entirely self-appointed; no mechanism exists
>whereby the public at large can select those in whom they are willing to repose their
>confidence, nor is there any removal mechanism to get rid of those who have, in the
>public�s eyes, misused their law-making authority.
>
>We have, it seems to me, created a law-making system without law-making legitimacy, a
>system devoid of any means by which those on whom the law is being imposed can voice
>their views about it and participate in its formation.
>
>A particularly critical place, then, for the institution of the jury. As mentioned
>above, every UDRP case must resolve the question of whether �the domain name holder
>has registered, or is using, the domain name �in bad faith�.� Why would we think that
>some �expert� arbitrator is better able than anyone else [EMAIL PROTECTED] -- to
>decide that question? Is it �bad faith� to register porsche.com because you love
>Porsches and want to set up a �fan site�? Is it �bad faith� to register porsche.com
>if you represent the union representing Porsche workers? Is it �bad faith� to
>register porsche.com because you don�t want Porsche, Inc. to have its own website? Is
>it �bad faith� to register porsche.com if you are in the business of selling
>second-hand Porsches? Is it �bad faith� to register porsche.com if your last name is
>�Porsche�? Is it �bad faith� to register porsche.com because you want to set up a
>website to collect critical comments about Porsche automobiles?
>
>What gives me, or any of the other self-appointed experts who are serving as
>arbitrators of these disputes, any special claim to wisdom on this score? These are
>precisely the sorts of questions, it seems to me, on which �the people� should get to
>air their views, and on which an expert�s opinion carries no more weight than anyone
>else�s. They are �legal� questions, but those trained in the law do not have any
>special competence to determine their answer in any particular case. They are
>ultimately questions about the reasonableness (or lack thereof) of conduct just the
>sort of question we place, under the 7th Amendment, before the jury to decide.
>
>I don�t minimize the difficulties that we might face in trying to get this
>institution off the ground. How should UDRP juries be chosen? What�s the
>appropriate pool of jurors? What about language problems? How might we get people
>to view jury service in cyberspace as a kind of civic obligation (and avoid the
>situation where only people with too much time on their hands actually agree to
>serve)?
>
>But this is too serious a matter to give up without a fight. The problems are not, I
>suspect, insurmountable and we won�t know, in any event, until we try a lot harder
>than we have up to now to solve them. I�m going to prepare a formal submission to
>ICANN on how we might accomplish this, and I urge any of you who might be interested
>in working on this to get in touch with me (at [EMAIL PROTECTED]).
>
>You might be thinking that this is all much ado about nothing. It is surely true
>that, when all is said and done, the UDRP deals with a pretty narrow slice of legal
>questions of little concern to most people. Efforts to figure out how to make this a
>more legitimate process might seem hardly worth the trouble.
>
>The UDRP, though, is just the opening wedge, the first step in what will likely be a
>long journey towards the design of the new set of legal institutions that will be
>setting rules and creating a degree of order for the global network. For better or
>for worse, this private law-making model is likely to serve as a template for other,
>more complex and more significant issues, whether administered through ICANN and the
>domain name system or otherwise. We�ll be sorry very sorry, I think -- if we don�t
>get it right.
Respectfully,
Jay Fenello,
New Media Strategies
------------------------------------
http://www.fenello.com 678-585-9765
Aligning with Purpose(sm) ... for a Better World
-------------------------------------------------------
"We are witness to the emergence of an epic struggle
between corporate globalization and popular democracy."
http://cyberjournal.org/cj/korten/korten_feasta.shtml
-- David Korten
