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The AltaVista decision is an elaborate and muti-faceted opinion, focusing on issues of personal jurisdiction and trademark infringement. But in attempting to wrestle with the question of how the legal analysis might change in light of the new technology, Judge Nancy Gertner identified two central inquiries that must inevitably inform our analysis over the next 5-10 years: (1) How "unique" is cyberspace? and (2) How have computers and information technology changed our way of life?
"The change is significant," she argues. "Physical boundaries typically have framed legal boundaries, in effect creating signposts that warn that we will be required after crossing to abide by different rules...To impose traditional territorial concepts on the commercial uses of the Internet has dramatic implications, opening the Web user up to inconsistent regulations throughout fifty states, indeed, throughout the globe. It also raises the possibility of dramatically chilling what may well be 'the most participatory marketplace of mass speech that this country -- and indeed the world -- has yet seen.' ACLU v. Reno, 929 F. Supp. 824, 881 (E.D. Pa. 1996). As a result courts have been, and should be, cautious in applying traditional concepts."
A recent report by the government's Office of Technology Assessment (OTA) reflects a similar perspective. The OTA explains that new technology is creating "footloose" companies that no longer need to be based in costly and congested city centers. "Metros, cities or parts of cities that will not or cannot adapt run the risk of being left behind to face stagnation or decline," the report concludes. See "The Technological Reshaping of Metropolitan America," U.S. Congress Office of Technology Assessment (1995).
Indeed, one need look no farther than our own legal and education communities to see other examples of changes brought about by information technology. The Internet has provided a vast array of new options for legal practitioners, serving as a vehicle for discovering information about courtroom foes, posting queries on bulletin boards to identify expert witnesses, conferring with clients, accessing primary sources, and seeking out new business. Class action lawsuits have actually coalesced in cyberspace. See Stephanie Simon, "Internet Changing the Way Some Lawyers Do Business," L.A. Times, July 8, 1996.
In K-12 schools, both the government and the private sector have contributed major financial resources for new equipment and connections to the online world. Increasingly, there is a recognition that "the shape and process of knowledge have changed." See Jack McGarvey, "But Computers Are Clearly the Future," N.Y. Times, May 25, 1997. In the higher ed community, computer technology has already changed the way faculty members communicate with each other and with their students. And many universities have begun experimenting with virtual classrooms as educators attempt to find a reasonable middle ground between traditional, time-tested approaches and the advantages that the online world offers.
Michael L. Dertouzos, head of MIT's Laboratory for Computer Science since 1974, suggests in a new book that these changes are natural, and that we have nothing to fear. He sees the emerging world of information as a "village marketplace" which will establish itself as a "third revolution" with the potential to combine technology and purpose in pursuit of a new wholeness. In fact, he argues that this marketplace "will be just another manifestation of ancient humans expending their ancient human lives in search of ancient human goals through new human tools and artifacts." See Dertouzos, How the New World of Information Will Change Our Lives (1997).
David Shenk, however, is not nearly as optimistic. In Data Smog, he documents what he perceives to be the negative changes brought about by computer technology, arguing that computers have succeeded in isolating their users and increasing stress. He is also very concerned that the new media will decrease young people's attention spans, rather than help improve our educational system. Finally, he warns of increasing decentralization and deregulation as a result of the emerging cyberculture. See Shenk, Data Smog (1997).
Columnist Frank Rich builds on Shenk's arguments in setting forth some of his own concerns: "Computer-driven changes in our culture, good and bad, big and small, are happening faster than we can calculate them, brought about not by 1.4-ton sideshow freaks like Deep Blue but by the ubiquitous P.C.'s at home, work and school."
"The great engine of our economy," Rich asserts, "is the computer; IntelÉshould surpass General Electric as the U.S.'s most profitable business by 2000. The Internet will also be a major purveyor of entertainment and journalism, needing only two inevitable improvements (faster connections, TV-quality video) to remake the entire information industry." See Frank Rich, Computer Bites Man, N.Y. Times, May 18, 1997.
Other commentators have expressed consistent views. Last year, Leslie Helm suggested that "[a]s surely as highways drained out inner cities and spawned the creation of large, prosperous suburbs, the growing tendency for activities such as schooling, medicine, banking and shopping to take place over the Net will once again transform our physical spaces." See Helm, The Fading Metropolis, L.A. Times, June 3, 1996.
Of course, not everyone is concerned about such decentralization, deregulation, and transformation of physical space. Lee Felsenstein, for example -- a former 1960's radical who built some of the first personal computers in the 1970's -- views the new "information age" as a positive manifestation of the counterculture vision. "Human consciousness," he explains, "always a social agreement, is taking a sharp turn into something new with the Net. The global, social impact of the Net revolution remains to be seen. Signs are that it will be fast, deep, and out of control, just the way we liked things in the 60's." See Gregory Jordan, The 60's Had Free Love; The 90's Have Free Information, N.Y. Times, September 1, 1996.
And publications such as Forbes and Business Week continue to promote the positive implications of information technology, reflecting the unlikely alliance that has emerged in this regard between revolutionaries of the 1960's and the international business community of the 1990's. See, e.g., The Big Issue: 53 Seers and Sages on the Techno-Future, Forbes, December 2, 1996; The Digital Frontier: The Best Ideas from the Hottest Research Labs, Business Week, June 23, 1997.
Perhaps the most insightful perspective on these issues can be found in Martin Dressler (1996), Steven Millhauser's Pulitzer-Prize-winning novel. The story is set in New York City at the turn of the century, 100 years ago, as the entire world is being transformed by revolutionary new developments in technology.
From beginning to end, the parallels between the New York of 1890-1910 and our own time period are striking. Through the eyes of Martin Dressler, a pleasant and engaging entrepreneur, we see how the advent of electricity, the development of new construction techniques, and a wide variety of major inventions combined to transform both the face of the city and its way of life.
For most of this fable, Martin comes across as an almost legendary icon. He is someone who is able to perceive the revolutionary changes going on all around him, and he has both the foresight and the wherewithal to do something about it. Perhaps his greatest achievement is the New Dressler hotel, a building that combines both the best of traditional Nineteenth Century culture and the excitement of the new Twentieth Century technology.
In many ways, the New Dressler has many of the same features and attractions that are present in the online world today. A 24-story building with seven underground levels and a massive basement, it is advertised as "more than a hotel: a way of life." Among its remarkable features are its underground levels, "composed of a landscaped park with real squirrels and chipmunks, a complete department store, a series of vacation retreats, and a labyrinth."
The vacation retreats include "six vacation spots for the use of hotel guests: a campground with tents in a brilliantly reproduced pine forest with swift-flowing streams; the deck of a transatlantic steamer, with canvas deck chair, shuffleboard courts, and hand-tinted films of ocean scenery displayed on the walls; a wooded island with log cabins in a large lake with a ferry; a replication of the Atlantic City boardwalk, complete with roller chair rides, as well as a half a dozen streets crowded with theaters and movie houses; a health spa with mineral baths; and a national park containing a geyser, a waterfall, a glacier, a small canyon, and winding nature trails."
Other remarkable details are set forth (see especially pages 236-238), reflecting not only Twentieth Century World's Fair imagery, but also the growing inability to distinguish between fantasy and reality that is addressed in the works of Franz Kafka and Nathanael West. And it is in Martin's last project, the Grand Cosmo, that he arguably crosses over into a dangerous world of fantasy--leaving behind the connection with old world tradition that had helped make his previous projects so successful.
By presenting us with a series of important parallels to our current world, Martin Dressler is a valuable addition to the growing body of literature in this area. It is a body of literature that the federal courts can no longer afford to ignore.
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