June 20, 1994

Granularity and the Law of Cyberspace


By: David R. Johnson

        We all know size is important. It determines how the laws of nature work. A
mosquito can't be the size of an elephant, because at that size, with the volume of
its legs increasing by a factor of three and the strength increasing by the cross
section factor of two, it would crush itself. A single molecule of water can't
evaporate because it's already separated from all similar molecules. The size and
granularity of information exchange should have an impact on the application of
our own laws as well.

        Cyberspace is often said to have no dimensions. But that doesn't really mean
that it doesn't have size. If we take size to mean the average amount of
information contained in a meaningful object (location) in cyberspace, one major
impact of the digital networks can be seen to be their tendency simultaneously to
reduce the size of things (by encouraging the exchange of short messages and
structured data bits) and increase the size of things (by allowing the accumulation
of and access to massive amounts of data). Thus, instead of dealing with books --
which were sized to fit in the saddlebag of a travelling scholar -- we deal with
short e-mail messages and vast distributed databases. How does the network's
tendency to change the size of our information exchange affect how the law
applies to the ownership and exchange of that information?

        With regard to intellectual property doctrine, the simultaneous bigness and
smallness of intellectual artifacts in cyberspace causes serious problems. Should
we consider each e-mail message a "work"?  How can we use the "proportion
taken" factor in a "fair use" analysis when we are dealing with the copying and
forwarding of "whole" e-mail messages?  At the other extreme, the large size of
the accumulations of pieces required to produce some multimedia works has posed
serious transaction costs problems, with some calling for changes in a legal
structure that makes it just too costly to assemble the amount of proprietary
materials required -- in great quantities of small bits -- for some types of
works.

        The same can be said about many other areas of law.  The large numbers of
small bits traversing a network make it nearly impossible for a sysop to review
messages in advance -- and therefore requires us to rethink the application to
sysops of traditional "publisher" liability for defamation.  The ability to
accumulate and access vast numbers of small electronic records regarding an
individual puts pressure on privacy law -- and makes us think about revising an
otherwise presumed right to republish information that is "public" but otherwise
hard to assemble all in one place.

        When meaningful communications are packaged in medium-sized bundles
(like a book) that take a moderate amount of effort (a person week or more, but
generally not person years), they tend to be produced by institutions that can bring
teams together to share the effort. This may help with quality control, but it also
dampens creativity. In contrast, an intellectual domain involving short messages
sent to the whole world reduces the role of institutions, makes everyone into "the
press" for First Amendment purposes, and allows the accomplishment of far larger
tasks. It also creates information overload (as vast quantities of the new
fine-grained sand of e-mail sift through barriers that previously kept out boulders of
unsolicited information). This may create a need for new law (e.g., prohibiting
deliberate "spamming" of the net by sending messages to everyone on a network)
if we cannot control uninvited intrusions by technological means. 

        The new granularity also has an impact on the size of the communities we
join. Relatively few people can pursue a shared interest on a global scale. If we
allow these few to solidify their interactions by allowing the formation of new
corporate entities administered through the net, we will see the emergence of a
new type of intermediate organization -- one not easy to locate in the real world,
whose actions might be said to occur anywhere or nowhere, and whose influence
may be big even though the numbers of people involved are small.

        If it's true that digitizing everything and connecting everyone with networks
makes the objects of the law's attention simultaneously smaller (harder to trace,
easier to start and stop) and bigger (global in reach, capable of comprehensive
collection), then we should expect to find some discomfort as we apply traditional
doctrines to these new phenomena. Perhaps, like the water molecule or mosquito,
some of our well established laws will evaporate at small scale or collapse under
the pressure of global mass.