The Common Law in Cyberspace

Tom W. Bell

97 Mich. L. Rev. 1746 (1999) (reviewing Peter Huber, Law and Disorder in Cyberspace (1997))


Although Law and Disorder in Cyberspace gets a great deal right in boldly proposing to abolish the FCC and rely on common law courts to regulate the telecosm, an untenable distinction between the process and substance of common law runs through the text. That fundamental flaw opens a rift through which creep a number of lesser errors. Peter Huber accords antitrust law, despite its reliance on legislation and inconsistency with common law proper, inexplicable deference. In an analysis aggravated by suspect claims about the history of telecommunications, he promotes mandatory interconnection at the expense of property and contract rights. Contrary to Huber's account, moreover, common law consistently excused telephone companies from any general obligation to carry their competitors' traffic. I thus suggest that we liberate telephone companies from mandatory interconnection by letting them buy back full rights to their facilities. Law and Disorder in Cyberspace mischaracterizes copyright as an agreeable child of common law. To the extent that copyright represents a response to market failure, it perhaps infringes on common law rights for good reason. But infringe it does. I thus propose that copyright retreat where common law rights suffice to encourage creative expression. Although Huber correctly diagnoses the collectivism afflicting wireless communications policy, his preferred treatment--ownership in fee simple of the spectrum--contains a dangerously high a dose of property rights. I offer the more gentle common law solution of treating rights to the spectrum like rights to trademarks. In closing, I raise a defense on Huber's behalf: Perhaps advanced telecommunications will so improve common law's processes as to correct its substantive errors. Law and Disorder in Cyberspace does not explore that somewhat speculative counterargument, however, leaving the text with troubling, if ultimately instructive, defects.

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"The Common Law in Cyberspace" Abstract - - v. 09/99