Tuesday, January 12, 2010
Almost twenty years have passed since the advent of the internet. The revolutionary nature of the technology is no longer in doubt. It has transformed the way we communicate, recreate, carry on business and conduct our affairs. Despite the internet’s “differentness”, courts have proven adept at adapting extant law to the features and demands of this new technology. In this paper, I analyze the manner in which courts have interpreted law and (just as importantly) internet facts in a sampling of cases concerned mostly with Canadian copyright law. Moreover, I am concerned with the interpretation of rules, whether common law or statutory, which are broadly conceived (or open ended) in nature. In part 1, I examine the way in which the internet facts may perceived by interpreters. At the most general level, there a choice of perspective that courts may adopt in connection with the internet – i.e. whether to view the activity under consideration in technical or functional terms. Once that perspective is adopted, courts are able, where appropriate, to analogize with real space for the purpose of including or excluding the activity from the rule. But where we might expect the internet differences to be so great as to be excluded from an extant rule, or to require the formulation of a new rule, courts have proven fairly adept at creating separate (or tiered) meanings of the same rule in connection with real space, on the one hand, and cyberspace, on the other. In part 2, I discuss two dominant approaches to legal interpretation – literalism and purposivism. I briefly discuss these approaches and illustrate how the choice of interpretive approach can have a determinative impact on the outcome of a case. In part 3, I analyze specific Canadian copyright cases identifying the interpretive approach taken with respect to both the law and facts. Perhaps the most important insight from these cases is that interpretation of law and facts often help to mutually constitute one another. Interpretation is, in other words, a much more dynamic process than the formalist model of legal interpretation might suggest. In part 4, I draw four general (though tentative) conclusions emanating from this paper concerning interpretation and the internet, as follows: (1)A purposive approach to legal interpretation is the best guard against inappropriate applications of a rule to a new technology (2) Interpreting law and facts is a mutually constitutive exercise (3) There may be a “principle” of internet efficiency at play which influences the manner in which courts interpret either or both law and facts;and (4) Material differences between real space and cyber space may be accommodated through tiered meanings of a rule.
Download the paper from SSRN at the link.