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World: Analysis From Washington: The Internet And Common Law

  • Paul Goble

Washington, 7 August 2000 (RFE/RL) -- The Internet may soon have another unexpected impact on the international community by spreading one of the underlying principles of English common law far beyond the society which gave it birth.

That possibility has been suggested in the wake of a U.S. court finding last week that Napster, an internet company which allows individuals to share music files without paying royalties, was almost certain to be found guilty of copyright infringement.

A higher court has stayed the temporary injunction which would have effectively shut down Napster. But that legal proceeding has only sparked additional discussion of the relationship between existing law and the technological revolution the Internet represents.

One participant, Stanford law professor Lawrence Lessig, observed last week that the people of the United States "are still very much a common-law culture," adding that "if the law does not accord with the view of the common kid, then the law will change."

Common-law cultures, to which Lessig makes reference, are those like the American, which descend from the English legal system where practice and individual court decisions over time tend to define the legal landscape within which people operate.

But the common law is not the only kind of law. It exists alongside positive law, the kind enacted by parliaments, decreed by executives and enforced by courts.

Even in what Lessig calls "common-law culture" countries, positive law plays a major role either because it formalizes the development of common law or because it expresses a continuing sense of the political community of what is permissible.

But outside common-law countries, most governments in Europe and elsewhere rely far more on positive law rather than on common law. And some explicitly reject the notion that evolving case law has a status equal to or greater than positive legislation.

The Napster case by itself does not change that, but the technological challenge to existing positive legislation that is at its core appears likely to have just such an impact.

At a minimum, the new technology the Internet represents will force national governments to modify their positive law on copyright and other issues as these regimes seek to enforce the principles contained in longstanding legislation.

But even more, the impact of this technology, an impact that spreads so quickly across borders, may also force some regimes to accept some aspects of the common law precisely because they are unlikely to be able to keep up with change any other way.

This likely shift may take one of three forms.

First, governments not now sharing in the common-law culture may decide to enshrine court decisions from common-law countries in their own positive legislation.

That is already happening as countries where the Internet has not yet penetrated widely prepare for its impact by copying or modifying what others have already done.

Second, these regimes may grant their courts greater latitude to apply their own legislation and thus give case law, the basis of the common law, a greater role in their own judicial systems.

This development too is already taking off in a number of countries in which case law is becoming ever more important as cases, particularly those with international ramifications, become more complicated.

Or third, these governments may come to see the common law as just that, as a common basis for dealing with a world in which change is rapid and borders ever less important.

No government has taken that step yet, but legal scholars in several positive-law states have begun to explore the possibilities that these states should.

Many are certain to resist such changes, and they will certainly be successful on occasion. But the Napster case suggests that English common law may become increasingly common, the latest contribution of the Internet to the transformation of the world.