FIRST PRINCIPLES

Our time shuns simplicity, and runs from first principles.  For countless millions, one demonstrates power of intellect through a display of complexity.  To understand complexity is wholly unnecessary; all that matters is that one's ideas and words appear intricate and complex.  Under this view, to reduce one's beliefs to a few simple principles is mere simple-mindedness.

Law suffers from this disorder, from the compulsion to appear complex and complicated.  In most cases, reasoning suffers for this complexity: it's a false complexity, deceiving writer and reader into believing that the more intricate the argument, the stronger it must be.

There are undoubtedly complex and complicated ideas, plans, systems, and objects.  The challenge is deciding which are necessarily complex, and which are described as complex merely as a fashion.  Overly complicated arguments, often false, offer at least this truth: they are appealing to the vanity in some, and the gullibility in others.

Since intricacy is so appealing, we seldom see a person's beliefs reduced to a few, basic propositions.  I have no hesitation in this regard, and I'll list a few propositions that describe my thinking about cyberspace law:

1.  Law is vital to a free republic, and technology cannot safely replace law as the foundation of a free and just society.       

2.  Technological change is best understood historically, after pondering the consequences of past achievements.

3.  Copyright is a necessary, although preferably limited, tool for encouraging ideas. 

4.  Copyright, trademark, and patent law, though necessary, are susceptible of over-extension from special pleading. Legislative or regulatory schemes that inhibit creation and distribution of intellectual property in "Science and the useful Arts" should be adopted only as a last resort. Legislation to compel manufacturers to make and install anti-copying technology in their products is destructive to innovation and prosperity.  Private initiative and creativity are the bases of American prosperity.

5.  Abandonment of copyright is foolish, and would lead to a decline in worthwhile intellectual property; significant expansion of copyright is foolish, and would lead to decline in the creation and spread of ideas and information on which progress depends. 

6.  Private methods of restricting intellectual property may be lawful, but should be viewed with suspicion.

7.  Software code is not law, nor is it reasonably analogous to law.  Neither truly nor metaphorically is code a kind of law. 

8.  Cyberspace, through all its many avenues, grows larger each day.  Fears that the public space, the so-called commons, of cyberspace will disappear are unfounded. 

These several propositions do not describe all that I believe about cyberspace law.  They are, however, a distinct foundation. 

FRANK GILBERT 

APRIL 22, 2002