Where there are two people living in a society there will be disputes, and by extension a need for a means of resolving these disputes. Frequently we hear the polarization of the alternatives "we can have order or we can have anarchy"; yet these two concepts are not necessarily at odds. By definition anarchy means "without government," not "without law and order." In the traditional three-dimensional world, a minimal government (consisting of nothing more than one supreme court for a given jurisdiction of voluntary association) may be necessary in order to provide a "final arbiter" when different courts pronounce opposing judgments on the same subject matter. However, the final arbiter rule assumes a completely different morph in cyberspace, where borders may exist in the form of subnets instead of arbitrary lines drawn in the sand.
The first part of the paper will discuss the failures of the courts in the United States in finding jurisdiction for themselves over causes of action that occur completely outside of their control. First, owners of servers and telecommunications have the right and the ability to police their own private property without interference from those who would usurp others' property by means of democracy, communism, or other forms of subjugation of the individual. Second, cyberspace operates wholly outside of the geographical boundaries established by governments, almost as if it were a "fourth dimension", so it is ridiculous to expand the "minimum contacts" test for determining whether personal jurisdiction exists in a geographical location as enunciated in International Shoe v. Washington1. Once it becomes more commonplace for commercial, recreational and other operations to exist outside of the physical world, parties to contracts will no longer wish to be governed by archaic judges basing their decisions on archaic laws. Instead of resorting to the courts within the jurisdiction of any government, contracts will include clauses for settling potential disputes by arbitration with a respected arbitrator ruling on such cases.
Once a judicial process is set up in cyberspace, next a system of enforcing the laws and the decisions of these courts must also be established. The primary claim against anarchism is that it is totally impossible to enforce rights without a unitary branch of government dedicated to that role. There are several flaws in this rationale. For purposes of this paper, most critical is the lack of any conceptual difference between an anarchist political system in which server operators agree on enforcement techniques and an international system in which nations sign treaties doing the same. One system operator may be unable to enforce the laws of his jurisdiction against the operator of another server, but this is no more dysfunctional an arrangement than the United States being unable to enforce its laws against the Canadian government. Ultimately, whether in cyberspace or in the physical world, there are only two options for a political system: individual freedom or a "new world order." Every existing political system is a combination of the two; some value individual freedom more and some value totalitarian rule more, but both apologize for its dilution of its principle by accepting some premises of the opposite pole. Cyberspace manages quite well under the concept of individual freedom, and until a rational explanation can be offered for a government to extend its jurisdiction into cyberspace, all governments would serve the interests of progress and justice by allowing the individuals in cyberspace to police themselves.
Finally, and most importantly, a set of principles by which a private court will adjudicate disputes must be formed. For reasons demonstrated herein, the present system of protecting intellectual property is outmoded. For example, patent law was established in response to the Industrial Revolution, and copyright law became possible only because of the invention of the printing press. The Information Revolution is arguably more significant in the history of human invention than both the printing press and the Industrial Revolution combined. While the discovery of cyberspace and the means to channel it do not necessarily make patents and copyrights undesirable, they certainly make it unreasonable and impossible to protect cyberspace patents and copyrights through the legislation presently on the books. One ingenious alternative system to the present system of publishing and copyrights was devised by visionary software developer Theodore Nelson which he named "Project Xanadu."2 The most common critics, most notably Pamela Samuelson3, do not uncover real flaws in the Project Xanadu model but rather are motivated by an overprotection for the status quo and a fear of progress. Cyberspace is developing regardless of whether the legal community chooses to recognize that reality; therefore, the legal community should snap to attention and make any necessary reforms before government-created chaos looms over the Internet.
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