Reading Too Much Into Nothing: the Metaphor of Place and the Internet - David Hricik

• Publication year: 2004

The Internet: Place, Property, or

Thing—All or None of the Above?

October 29, 2003

Dinner Speech

Reading Too Much Into Nothing:

The Metaphor of Place and the Internetby David Hricik*

I. Introduction

When I was asked to speak at this dinner, I realized I was doing something I had never done before. Normally, I am given the task of speaking for ninety minutes early in the morning at Continuing Legal Education (CLE) conferences for patent lawyers. The challenge is always first, how to wake them up, especially when they are often tired and may have had a heavy dinner and drinks the night before with other attendees and, next, how do I keep them awake for ninety minutes?

With this speech, I realized I now faced those same challenges, but at night, after a heavy meal.

I am kidding. I am not speaking for ninety minutes—just about twelve. But they are twelve packed minutes.

I am going to make only three basic points tonight. My first point is this: Metaphor and analogy play a large role in disputes involving the Internet, and there is nothing wrong with that. I will show you that courts not only regularly rely on metaphors, but they are influenced by metaphors and analogies as well. Metaphors matter. But there is nothing wrong with analogy and metaphor in the law. Metaphor and analogy are the way we explain that which is unfamiliar—by comparing it to that which we know. Metaphor and analogy are the meat and potatoes of legal reasoning.

My second point is this: Even though they matter, courts have regularly recognized that metaphors are not controlling. Courts regularly look past the metaphors to the realities of the Internet. They know they are not bound by words but by realities.

Third, I will get to my real point. My real point is that the danger the Internet faces is not that the metaphors are imperfect, or that they are given too much weight, but that the Internet is in many ways unlike anything before. Yet rather than analyzing the underlying policies that a rule of law would impose, courts too often treat the Internet as if it is no different than that which has come before it—it is.

Let us get started.

II. Metaphors Matter, but There is Nothing Wrong With That

My first point is that metaphor and analogy matter, but there is nothing wrong with that.

I ran a Westlaw search on a fairly narrow query of "analogy or metaphor" in the same sentence with "Internet." That search brought up 26 cases and 700 law review articles. I brought all 726 cases and articles with me, and I would like to read every one of them to you.

Kidding. The shear number of cases and articles retrieved in that simple search shows that courts rely on metaphor. I will read you only a couple. Here is the first case. Let me quote it to you:

The Internet can be described by a number of different metaphors, all fitting for different features and services that it provides. For example, the Internet resembles a highway, consisting of many streets leading to places where a user can find information. The metaphor of the Internet as a shopping mall or supermarket, on the other hand, aptly describes the Internet as a place where the user can shop for goods, information, and services. Finally, the Internet also can be viewed as a telephone system for computers by which data bases of information can be downloaded to the user, as if all the information existed in the user's computer's disc drive.¹

Courts are clearly applying metaphor to legal disputes involving the Internet. In fact, according to reports about oral...