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Hutchison on Interpretation & the Internet

By Lawrence Solum

Cameron J. Hutchison (University of Alberta - Faculty of Law) has posted Interpretation & the Internet (John Marshall Journal of Computer & Information Law, 2010) on SSRN. Here is the abstract:

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 propose in some detail the manner in which courts should interpret law and (just as importantly) internet facts in connection with broadly stated legal rules. My basic argument is that courts must be appreciate both the totality of facts presented by the internet activity as well as the purpose behind the rule to ensure an appropriate determination of whether an activity falls within or outside of a rule. In part 1, I highlight the differences between the internet and other technologies which might, depending on the legal issue, justify the exclusion of the internet from established rules on the basis of analogical reasoning. But where we might expect the internet differences to be so great as to justify exclusion from an extant rule, courts may create separate (or tiered) meanings of the same rule in connection with real space, on the one hand, and the internet, on the other. I then examine the way in which internet facts may be perceived by interpreters. At the most general level, the internet presents interpreters with external (or technical) and internal (or functional) perspectives. While courts often adopt one perspective or the other, it is critical that they consider both so that all affected interests are considered; once that happens, courts can then determine whether, and how, to calibrate the inherent (and possibly affected) interests that make up the purpose of a rule. 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. Moreover, I argue that courts must take a purposive approach to legal interpretation as the best guard against inappropriate applications of a rule to a new technology. In part 3, I bring together all of these tools of analysis to propose a methodology for the manner in which courts should approach interpretation of the law and the internet. The paper concludes with an illustration of this method in SOCAN v. Canadian Association of Internet Providers.

Full post as published by Legal Theory Blog on September 17, 2010 (boomark / email).