Cybertime,
Cyberspace and
Cyberlaw
M. E. K.
[FN
1][source.]
"Cybertime
does not remove or replace clock time; yet it
too may place a novel set of interactions with
time on top of a temporal model that we assume
is part of the fixed natural order, rather than
a changeable culture." par 26 This article links
the concept of time to the concept of law and
proposes a serious concern about the possible
consequences of cybertime. compare the
definition of time by The Order of Time
------------------------------------------------------------------------
Abstract
{par. 1} In
this philosophical essay, Professor K.pursues
the relationship between time in cyberspace, or
"cybertime" as he calls it, and legal doctrines.
He speculates that many such doctrines are based
explicitly or implicitly on time or our
conception of time. He then asks whether the
concept of "cybertime," with its accelerated
pace, may not cause substantial disruption in
these legal doctrines, a disruption not before
noted or appreciated.
------------------------------------------------------------------------
Space
and Time
{par. 2} If
there is something that computers have forced
into our society, it is a different sense of
time. We still conceive of time within the
mental framework of the eighteenth century: time
is what is set by a clock, God as "the Great
Clockmaker" (V.), and so on. The (re)emergence
of different sense of time will not destroy the
traditional one, but make it relative.
[FN
2]
N. S. {par. 3} Cybertime is to time as
cyberspace is to space. Or is it?
{par. 4} In
several pieces of writing over the last few
years, [FN
3]
I have considered the impact on law of
information technologies that have extraordinary
capabilities for overcoming space and distance.
I have argued that the new media are a
significant cultural and legal phenomenon not
because they enable us to perform informational
tasks faster than before but because they change
how we interact with distant information and
distant people. I have tried to point out that
it is a new relationship with space, how we
think about distance and work in and with
electronic spaces, that underlies many different
changes in law that are now surfacing and that
will occur in the future. As capabilities for
working with people and information over great
distances become widespread, and as attitudes
and expectations about space and distance
change, new relationships are formed, new
entities and institutions are established, new
patterns of behavior emerge, and the law
ultimately recognizes that it is changing
because the environment of which it is a part
has changed.
{par. 5} The
link between law, communications media and
spatial orientations and practices is not as
direct or as overt as the relationship between
law and economics, politics or some other
discipline or ideology. New communications
technologies engage us in change at a cultural
level, as we adapt to new experiences, new
patterns of behavior, and new expectations about
the nature and use of information. The law
accommodates itself to such background changes
but it may not explicitly acknowledge them or
even be aware that it is responding to change at
this level.
{par. 6} F. S.
has observed that "[l]egal rules and
principles commonly contain not only normative
determinations about what ought or ought not
happen under certain circumstances, but also
background factual assumptions about the nature
of the world." [FN
4]
As the form of information changes from
something tangible to something electronic,
changes will occur in legal institutions and
processes that have been oriented around
particular physical spaces, and in legal
concepts and doctrines that have depended upon a
relationship with a particular space.
{par. 7} Over
forty years ago, the Canadian economist, H. I.,
M.M.'s colleague and mentor, suggested that the
introduction of a new medium of communication
sets in motion deep-rooted change in important
societal institutions by influencing
orientations about time and space. Writing more
than a decade before "the medium is the message"
[FN
5]
became part of popular culture, I. asserted that
"the materials on which words were written down
have often counted for more than the words
themselves." [FN
6]
I. argued that while public attention is often
focused on the content of the new medium, the
key to understanding long term change lay
elsewhere, particularly in how a medium either
permits or hinders communication over space and
either encourages or discourages the
preservation of information over time.
{par. 8} Every
medium of communication, according to I., has a
bias toward either space or time which
influences how it is used and what it is used
for. If the bias is in the direction of space,
it supports communication from afar and fosters
links among persons separated by distance. If it
is biased toward time, it encourages the
preservation of information over time. For I.,
whether the society's principal medium of
communication encouraged the spread of
information spatially or temporally had
significant political, economic and cultural
consequences.
{par. 9} The
law, as J. B. once observed, is "limited by time
and space." [FN
7]
More than this, the law might be said to have a
"sense of place" or be "of a place" in that
there are informational places that are central
to the process and operation of law. Law
libraries are an obvious example of a legal
information place, but so are individual items,
such as books, or even artifacts, such as
contracts. For such physical information places,
however, the new technologies facilitate access
or create new relationships with information by
overcoming physical limits associated with the
walls of the library, the binding of a book, and
even the margins of a page.
{par. 10} The
invasion of legal spaces by cyberspace, however,
goes beyond the law's physical places and
objects. For example, the law describes and
defines many issues and concepts in spatial
terms. Thus, privacy not only involves
individual control over certain kinds of
information but employs spatial terms, such as
zones of privacy, to describe its nature.
Jurisdiction is an area of law that is directly
linked to control over people and spaces. Even
the legal profession has spatial characteristics
in the sense that it, like any other profession,
has boundaries that exclude non-professionals
from membership and participation. All of these
areas are touched by cyberspace because if there
is any one message of the new media, it is that
traditional boundaries, whether they be
physical, territorial or conceptual, are more
porous in an age where information is digital in
nature.
{par. 11} The
new media's impact on law's specialized
information places, on legal processes and
methods that involve the movement of information
over distance, on legal doctrines and concepts
that require information to be contained in some
manner, and even on the boundaries of how law is
categorized, still seem to me to be likely, over
time, to be profound. It is in the area of space
and distance that one can experiment with new
models of scholarly communication, such as this
journal, with new ways of managing
relationships, with new ways for resolving
conflicts, with new ways of ordering behavior,
and with new ways of storing, accessing and
sharing information.
{par. 12}
There are considerable problems that are likely
to arise in this new environment or space, such
as high levels of conflict resulting from
information transactions and information
relationships that do not succeed. Such
conflicts, however, might be considered an
opportunity for the law and to be the ground
upon which new approaches to conflict resolution
and managing behavior develop.
{par. 13} But
what of time? It has intrigued me that while I
have been focussed on space, and have endeavored
to identify links between law and space, the
interest in the new technologies by both the
public and the profession has largely been
focussed on time and speed. This attention is
understandable, since the speed with which the
new technologies perform many informational
tasks is both extraordinarily impressive and
easily demonstrated. In addition, economic value
has a clear link to time and speed, as is
suggested by the slogan "time is money."
{par. 14} I
have sometimes thought that a more appropriate
economic slogan for a digital era is "space is
money," in that economic rewards will derive
from developing and exploiting novel
relationships and new capabilities for
overcoming constraints of space and distance. In
a transition period, however, the slogans and
habits of thought of the past continue to be
influential and there is still a strong belief
that doing more in less time, something
facilitated by the new media, is the path to
economic success.
{par. 15}
Justice F. F. once wrote that "no court can make
time stand still." [FN
8]
There are limits to the power of law and the
passage of time is a part of the natural world
that certainly cannot be stopped. But time is
not merely a quality or facet of the natural
world, something fixed and unchangeable. It is,
in addition, something cultural. We make
assumptions about time and we structure norms
and standards around these conceptions of time.
The law employs time, invokes time, and has
expectations about time. Sometimes time flies.
Sometimes, we "make time." Sometimes we "bill
time" and sometimes "time runs out." Sometimes,
we worry about "time bombs" and maintaining the
status quo. Perhaps the law cannot make the sun
stand still, but legal rulings do, on occasion,
"stop the clock from running." We may not be
able to "turn back the clock" but we do, on
occasion, apply court decisions retroactively.
In a variety of situations, therefore, the law
enjoys a relationship with time.
{par. 16} As
we appreciate and adapt to a novel spatial
environment, we need to ask as well whether it
is being accompanied by a new temporal
environment and, if so, what the nature of that
temporal environment is and what its link to law
is. If cyberspace exists and is forcing the law
to change, then there may very well also be a
cybertime dimension that should be attended to.
In the remainder of this piece, therefore, I
would like to put forward a few thoughts about
time and the law's use of time. I shall comment
briefly on areas in which law will be concerned
with cybertime but my intention is less to
assert something definitively than to begin a
discussion about a link between law and the new
media that I have not seen extensively discussed
elsewhere.
{par. 17} In
considering cybertime, my concern is not with
particular time limits the law establishes for
carrying out certain procedures. The new
technologies will encourage the shortening of
some time periods, since they do allow
informational tasks to be carried out more
quickly than previously. Cybertime, however, is
more about time frames than time limits.
Cybertime is not simply about speeding up
information-related processes but having a
different sense of past and present, of the role
of the past and the value of the past, and even
a different series of concerns about the future.
{par. 18} Just
as cyberspace does not replace our physical
surroundings or move us out of our physical
environments, cybertime does not imply that we
will necessarily measure time differently in the
future or find a replacement for the clock. It
does suggest that our relationship to time may
be different from what it has been in the past
and that the meaning of time in some contexts
may change. Its impact, therefore, is felt not
in our view of the discrete time periods that
the law employs but, more subtly, on attitudes
about time and about the value of past, present
and future information.
------------------------------------------------------------------------
Law
and the past
{par. 19} The
technology of printing provided a trustworthy
means to capture a particular moment in time and
fix it on paper. In this sense, the advent of
printing brought the past into the present, "the
world of the dead into the space of the
gentleman's library." [FN
9]
Textual works, of course, filter the past
considerably, leaving out much information about
any recorded event. The virtue of print is not
that it presents a complete or necessarily true
picture of some past event but that the words
the reader sees can be trusted to be the same
words composed by the author. In the legal
context, this means that whatever words are
written by a judge or legislature are accurately
communicated to readers wherever they may be
located and however removed in time they may be.
{par. 20}
Although many manuscripts prior to Gutenberg
(internet e-text-archive, T.O.) contained
information similar to the information later
found in printed works, how the information was
perceived, how it was used, and what it was
thought to represent changed radically as
printing spread. In "scribal culture," where
copying by hand inevitably introduced errors
into every copy made, the oldest version of any
work or document was considered to be the most
perfect and to represent most closely the words
of the author. [FN
10]
{par. 21} In
the manuscript era, it was impossible to be
certain what the original author had written
because "every copy was unique, with its own
variations." [FN
11]
The more a book was copied, the less authentic
it became. [FN
12]
After print, the most recent version or edition
was most appreciated and considered most
valuable since what occurred over time was not
the compounding of errors but the growth of
knowledge.
{par. 22}
Printing, therefore, effectively brought about a
complete shift in the preservation of the past
and in the attitude toward revised copies of
older works. As a result, "it produced
fundamental alterations in prevailing patterns
of continuity and change" [FN
13]
and provided printed information with a degree
of authority that had been unattainable with
writing. [FN
14]
As T. J. once observed,
{par. 23} Very
early into my researches into the laws of
Virginia I observed that many of them were
already lost, and many more on the point of
being lost, as existing only in single copies in
the hands of careful or curious individuals, on
whose death they would probably be used for
waste paper .... How many of the precious works
of antiquity were lost while they existed only
in manuscript? Has there ever been one lost
since the art of printing has rendered it the
only means of preserving those remains of our
laws now under consideration, that is, a
multiplication of printed copies.
[FN
15]
{par. 24} The
law is an institution that treats the past with
reverence. D. L. has written that "legal
argument is a struggle for the privilege of
recounting the past." [FN
16]
Inevitably, a system of law that takes the past
seriously requires a means of communicating the
past in a trustworthy and authoritative way. It
requires that we respect the past, see links
between the present and the past, and see value
in allowing the past to shape the present. It
requires a means of communication that supports
and reinforces such attitudes and expectations.
{par. 25} The
new technologies, as the term cyberspace
implies, allow those who work with information
to overcome existing spatial boundaries and
barriers to communication. Cyberspace does not
mean that all territorial, institutional,
doctrinal, or conceptual boundaries are replaced
and become irrelevant, but cyberspace does
overlay a whole new set of opportunities for
overcoming physical distances and creating and
shaping virtual spaces. It is for this reason,
and because new levels of informational
interactions emerge that may not have existed
before, that legal questions touching on the use
of space, such as jurisdiction, become more
complicated. More fundamentally, legal
arrangements that assume something about the use
and communication of information over space,
such as the regulation or definition of the
legal profession or a contract between several
parties in different places, become vulnerable.
{par. 26}
Cybertime may be viewed in a similar fashion as
a force for changing temporal boundaries.
Cybertime does not remove or replace clock time;
yet it too may place a novel set of interactions
with time on top of a temporal model that we
assume is part of the fixed natural order,
rather than a changeable culture.
{par. 27} In
print culture, the relationship between past and
present is perceived to be both clear and
linear. Printed works are "dated," both in the
sense that their date of publication is clear
[FN
17]
and in the sense that any printed work is
necessarily of the past. There is a discreteness
about the past when it is embodied in print, a
palpable separation of it from the present. This
clear boundary is reinforced whenever one
experiences the tactile sensation of opening a
book. [FN
18]
{par. 28}
Electronic works are also dated, but in
addition, they are often up-dated. Print
libraries are also updated but, except perhaps
for looseleaf services and pocket parts, the
present and the past do not merge. New editions
join old editions on the shelf allowing us to
see past and present side by side. This model
could be employed with electronic material but
what occurs more commonly than it does with
print is that old bits merge with new bits. In
this regard, the looseleaf binder is a more
appropriate metaphor for electronic information
than the bound book.
{par. 29} Such
a change in how information changes over time
may seem to many to be simply a change in
degree. It is, however, the kind of shift in the
presentation of information that the history of
print teaches us to take seriously. One might
say that many of the changes in the presentation
of information that occurred after Gutenberg,
such as the placement of page numbers on books,
the use of indexes and title pages, and the
greater focus on text than image, were also only
changes in degree when compared to the
appearance of books that were copied by hand.
The overall effect of these changes, however,
was to produce a different culture, one that
valued information from the past differently and
that built institutions, such as law, around the
changing role of information.
{par. 30}
Electronic publication places us in a more
complex relationship with time. Cybertime has
brought us new ways of speaking and thinking
about time, of "time shifting," of "real time,"
of relying more on and appreciating the value of
asynchronous communication. Much of legal
thinking and legal training is about thinking of
the present in terms of the past. Yet,
cyberspace, even when it presents us with
information from the past, does not present us
with any fixed icons of the past that are as
clear as the books in the library. It does not
remove the library from our field of vision but
it does place before us some powerful and
competing sources of information.
{par. 31}
Chief among these, perhaps, is the network, a
source of information that excels in overcoming
distance but has relatively little concern with
the past. The difference between the network and
the library is not that one contains more wisdom
than the other. It is, rather, that one
embodies, in a clear and tangible way, the
wisdom of the past, while the other focuses our
attention in a different direction-placing a
different emphasis on the past and looking for
solutions to problems using different temporal
orientations.
{par. 32} What
kinds of consequences to the legal process might
there be from such a change in direction, a form
of institutional time shifting? For one, we will
certainly question how precedent is used and
valued. The orientation embodied in the concept
of precedent, however, radiates through the
legal process. In considering the relative
attraction of litigation and techniques of
alternative dispute resolution, for example, is
there a link between the growing appeal of ADR
and a changing temporal orientation? Mediation
is a process that has looser ties to the past
than more legalistic models. Might it not,
therefore, also benefit from our thinking about
time differently?
{par. 33} The
lens of cybertime may have precedent as its main
focus, but changing connections between past and
present will also raise questions in other
contexts. Contracts, for example, represent a
willingness to be governed by what has been
agreed to in the past. Computer-generated or
document-assembled contracts, or even EDI
(Electronic Document Interchange), generally
assume that the same attitudes that underlie the
use of paper and printed contracts will be
present in an electronic environment. The new
technologies allow parties to be together even
while physically distant, however, and allow
monitoring of performance over time in ways that
were not previously possible. Contracts,
therefore, if looked at as a means of managing
relationships and interactions over time and
space, [FN
19]
would seem to be a fertile area for
experimentation and change [FN
20]
as "groupware," project management software, and
yet to be developed electronic links, all negate
temporal and spatial distances.
------------------------------------------------------------------------
Law
and the Present
{par. 34} The
law's orientation to the past is an important
element in achieving continuity and stability. A
related but equally important issue concerns the
frequency of change in the present. The late
legal philosopher L.F., in his book The Morality
of Law, asserted that too much change in the law
"does not simply result in a bad system of law;
it results in something that is not properly
called a legal system at all."
[FN
21]
F. illustrated his contention with a story about
a hypothetical king, Rex, who assumed power and
recognized the need for change. Rex,
{par. 35} we
are told came to the throne filled with the zeal
of a reformer. He considered that the greatest
failure of his predecessors had been in the
field of law. For generations, the legal system
had known nothing like a basic reform.
Procedures of trial were cumbersome, the rules
of law spoke in the archaic tongue of another
age, justice was expensive, the judges were
slovenly and sometimes corrupt. Rex was resolved
to remedy all this and to make his name in
history as a great lawgiver. It was his unhappy
fate to fail in this ambition. Indeed, he failed
spectacularly, since not only did he not succeed
in introducing the needed reforms, but he never
even succeeded in creating any law at all, good
or bad. [FN
22]
{par. 36}
Among the many mistakes that the
well-intentioned Rex made was to amend his legal
code so frequently that planning became
difficult, predicting outcomes of disputes
impossible, and knowledge of the state of the
law at any one time uncertain. Rex's law was
up-to-date but it could not be relied on. This
degree of uncertainty led Rex's subjects to
complain that "a law that changes every day is
worse than no law at all." [FN
23]
{par. 37} The
science fiction writer B.S. once made the
comment that the new technologies signify that
"the status quo is over." [FN
24]
The status quo may or may not be over, depending
upon how one interprets this comment, but
cybertime does suggest that the status quo,
whatever it might be, will be defined in shorter
time frames than it currently is. It suggests
that there will be less satisfaction with the
status quo and less support for it. This is a
challenge to the law, not because there is no
need for the law to change, but because a
certain rhythm of change, a rhythm perhaps tied
to how fast we are able to communicate
information, is almost built into our legal
model. As F.'s story suggests, the law is not
particularly comfortable with continuous change
or with legislation that is of short duration.
{par. 38} As a
society, we have had little experience with
Rex's problem. Indeed, one of the most
frequently made complaints against legal systems
throughout the ages has been that law is too
rigid and inflexible, that it is difficult to
change, and that, all too often, law is more
comfortable with reinforcing the status quo than
with bringing about change. Changing
perspectives on duration, therefore, may provide
an opportunity for desirable legal changes to
occur. The same changing perspectives on
duration that can be a force for moving forward,
however, can be a force for moving backward at a
later date in the sense that repealing and
revising legislation in light of perceived new
circumstances becomes more commonplace.
{par. 39}
Cybertime, if we wish to recognize such a
concept, will probably be viewed by most as a
force that calls into question various
time-regulated procedures in law, such as the
right to a speedy trial or the amount of time
required to respond to a motion or complaint.
Cybertime may be less significant in relation to
these concerns, however, than it is in touching
legal concepts that imply a certain view of
duration, stability, and finality. Thus,
cybertime may affect particular rights, but more
deeply, it may affect all rights, and perhaps
even the concept of a right, since the concept
of a right assumes something of more than
momentary duration.
{par. 40} In a
recent decision, Justices S. D.O'C., D.S. and A.
K. wrote that "liberty finds no refuge in a
jurisprudence of doubt." [FN
25]
The case in which this appears concerned the
constitutionality of a Pennsylvania abortion
statute. It was a case that many had assumed
would lead to a reversal of R. v. W.. Yet, one
determining factor in the case may have had less
to do with a substantive legal analysis than
with time and duration and the sense that rights
and judicial decisions about rights have
embedded within them an orientation about time
and duration. For O'C., S., and K. there were
many concerns about overturning R.. Among them,
the Justices write, is that there
{par. 41} is a
point beyond which frequent overruling would
overtax the country's belief in the Court's good
faith. Despite the variety of reasons that may
inform and justify a decision to overrule, we
cannot forget that such a decision is usually
perceived (and perceived correctly) as, at the
least, a statement that a prior decision was
wrong. There is a limit to the amount of error
that can plausibly be imputed to prior courts.
If that limit should be exceeded, disturbance of
prior rulings would be taken as evidence that
justifiable reexamination of principle had given
way to drives for particular results in the
short term. The legitimacy of the Court would
fade with the frequency of its vacillation.
[FN
26]
{par. 42}
There is, it seems to me, a temporal orientation
here that respects duration, the life span of a
decision, and considers it to be an important
element in the decision-making process. This is
also a temporal orientation, one would think,
that may feel some pressure from cybertime.
{par. 43}
Justice H. once wrote that "it cannot be helped,
it is as it should be, that the law is behind
the times." [FN
27]
A few years later, Justice B. declared that "in
most matters it is more important that the
applicable rule of law be settled than that it
be settled right." [FN
28]
These are, perhaps, debatable propositions but
they are understandable perspectives to those
trained in a system which views and employs the
past and present as our legal system does. Given
the nature of cybertime, however, these are the
kinds of perspectives that may not have as much
attraction in the future.
------------------------------------------------------------------------
Law and the Future
{par. 44}
Cybertime pushes the present into the past and
the past into the present in novel ways. At the
same time, it also changes our orientation
toward the future. In other words, if cybertime
tells us to look at the past differently, it
also suggests that our relationship to the
future will be different. This is not to say
that we will be able to predict the future or
control the future any more effectively than we
can change the past. We can, however, understand
that we make assumptions about the future, that
we often act upon these assumptions, and that
legal doctrines, concepts and methods contain
assumptions about the future.
{par. 45} We
typically think of the future as being, by
definition, something that lies ahead of us, as
a set of events that will happen as clock time
progresses. It is, therefore, difficult to think
of the future as something that can be relied on
as we rely on the records and interpretations of
the past. Yet, although we cannot know the
future, we do continuously anticipate the future
and draw connections between the past, present
and future. In this sense, we continuously shape
the present by interacting with a vision of the
future, just as we shape the present by
interacting with a vision of the past. Expert
legal knowledge is not simply knowledge of the
past and of what is recorded somewhere, but
knowledge of the future as it is likely to be
under certain circumstances.
{par. 46} What
the computer provides for us is not necessarily
a lens with which to see the future more clearly
(although in some instances it may do this) but
an environment in which the process of using
both past and future accelerates. As this
occurs, our sense of time and our use of time
changes and, like an animation caused by rapid
movement of a set of static images, what is in
our field of vision changes. K. K., in his
insightful book, Out of Control
[FN
29]
notes that
{par. 47} A
system-organism, corporate firm, computer
program-spends energy feeding the past back into
the present because this is an economical way
for the system to deal with the future. To see
into the future one must see into the past. A
constant pulse of the past along feedback loops
informs and controls the future.
{par. 48} But
there is another avenue for a system to
time-shift into the future. Sense organs in a
body that pick up sound and light waves miles
away act as meters of the present and more as
gauges of the future. Events geographically
distant are, for practical purposes, events that
hail from the future. An image of an approaching
predator becomes information about the future
now. A distant roar may soon be an animal up
close; a whiff of salt signals a soon-to-be
change in tide. Thus an animal's eye
"feed-forwards" information from a distant
time/space into its here/now body.
[FN
30]
{par. 49}
Cybertime, if nothing else, changes our vision
of the future by bringing us information from
distant places at extraordinary speed. It thus
changes our actions in the present which, of
course, means that the future will be different
from what it might have been.
{par. 50} It
is a good deal harder to see the links between
law and time, particularly between law and the
future, than it is to see the links between law
and space. What does seem clear is that the most
significant connections between law and time
will be located more in some time-oriented
assumption or perspective underlying a law or
legal process than in the explicit time-related
standards specified in any particular law.
Consider, as one example, the link between value
and time and how that link is reflected in the
copyright law. Currently, the term of copyright
protection is life plus fifty years.
[FN
31]
There are suggestions that the statute should be
changed to make the term life plus seventy five
years, the same as that contained in the Berne
Convention.
{par. 51} This
does not mean that every copyrighted work will
have value at the end of the copyright term but
it does suggest something about our sense of
time and our approach to it. The term of years,
for example, is generally consistent with the
valuation process of many precious objects,
which may not only have value in one hundred
years but which will increase in value. Yet, as
the most common form of information moves from
being tangible to being electronic, it is worth
considering whether we may come to have
different expectations about future value and
about the link between present and future value.
{par. 52} As I
ponder the kinds of assumptions that we make
about the relationship between time and value, I
hear my seven year old son enter my study and
announce, in a plaintive tone, "I'm bored, what
can I do?" We are home alone, and it is a sunny
early-Spring weekend morning. I should walk away
from this article, due at the end of the week,
and offer to play outside with him. It would be
good for both of us, although I shall have to
ask the editor to be a little flexible about the
deadline he has given me. Perhaps he can "save
some time" on his end. Given what I have written
here, this request does not seem too
inappropriate to me.
{par. 53} As I
decide that the editor can wait a few more days,
my son proudly informs me that he has a baseball
card worth forty-eight dollars. Someone had
given him a 1956 card of the Chicago Cubs Hall
of Fame outfielder E.B.and he has found that the
card is listed in a baseball card magazine as
being worth forty-eight dollars. I comment that
this is obviously his most valuable card, since
all of his other cards are no more than a year
old. He tells me, however, that he also has a H.
A. anniversary card and, on our way outside, we
stop to look at it. The card, produced in 1994,
is in perfect condition, glossy and shiny with a
very colorful picture of A. breaking B.R. home
run record in 1974. I tell him that the Banks
card, almost forty years old, slightly faded, of
a lesser player, is worth more, much more. He
grins, thinking I am teasing him. He thinks I am
making this up since it makes no sense to him.
He also is in no mood to hear about scarcity and
demand, so we go out to play.
{par. 54} As
we play, I wonder about the baseball card market
in the year 2100. A 1956 card will probably be
worth as much as my car, or, with a dose of
inflation, perhaps even my house. But I also
assume that there will be digital cards, that
electronic cards will have displaced most, if
not all, traditional cards, and that somehow the
digital versions will have value. Of course,
they would not be cards, although one could
probably print them in that form if one so
chose. Probably, at some point closer to today
than to 2100, some kind of virtual reality
experiences with athletes will substitute for
the static and silent card of today.
{par. 55} In
this fantasy, where is the value? Perhaps more
importantly, what is the paradigm that will
shape how we think of value and protect value?
My sense about the link between current and
future value is, again, not that all the old
rules will be replaced, but that a process of
displacement will produce a change in our
thinking. There will be items, tangible items,
that will be worth more as time passes. But the
tangible work that is preserved through time is
not as likely to be our paradigm for thinking
about time and value as is the work that changes
over time [FN
32]
and whose future value is not tied explicitly to
the passage of time.
------------------------------------------------------------------------
Conclusion
{par. 56} Our
relatively brief experience with cyberspace
indicates clearly that the computer is a space
machine, negating physical distance and creating
new spaces in which novel relationships and
activities can occur. As I have suggested above,
the computer should also be considered to be a
time machine, creating a new environment in
which our relationship with time becomes
different from what it has been. Just as
cyberspace calls upon us to explore what it
means to be able to work in and with virtual
spaces, cybertime should make us sensitive to
issues of time that are in the background of
much legal work.
{par. 57} Time
may or may not be measured differently in a
digital world but its meaning will be different.
We have learned already that space is not a
scarce resource in cyberspace. This is one way
of understanding why there has been such an
extraordinary increase in electronic information
activities. Time appears to be a much scarcer
resource. [FN
33]
Yet, time, like space, may be more malleable in
a cyberworld than it is in a physical world. We
cannot work with time as we work with space but,
as D. B. has noted, the new technologies provide
{par. 58} a
new intimacy with time, as both ally and enemy:
previously men and women lived in time and
worked through time, but T.'s man is the first
who actually works with time. Like space, time
is a commodity provided by the computer, a
material to be molded, insofar as this is
possible, to human ends. This intimate contact
with time promises success in time (progress)
but also an awareness of ultimate temporal
limitations. [FN
34]
{par. 59} We
play many games with time, even in the physical
world. I am completing this article, for
example, on a Sunday morning, feeling a little
more tired than I ordinarily might in the late
morning. The reason for this is that we "moved
the clock forward" last night and "lost an
hour," all for the purpose of seeing some extra
sunlight every evening. We have moved quite far
from those cultures where activities were guided
solely by the rise and fall of the sun each day.
Cyberspace moves us further still, to a place of
virtual light, indeed a place that has no night,
[FN
35]
where time can be structured and simulated in
even more flexible fashion.
{par. 60} A
new relationship with time has the potential to
touch law at many levels. One might wonder, for
example, whether something occurring right on
the law's surface, the movement away from
time-based billing and toward alternative
methods of compensation, reflects a recognition
that there is more to time than what is measured
by the hands of the clock. A move away from time
management and toward project management, away
from time measurement and toward time meaning,
would seem consistent with an attitude that
looks beyond what appears on the face of the
clock.
{par. 61} At a
deeper level, cybertime suggests that existing
boundaries of time may be at risk and that our
treatment of past, present, and future are
changing. For example, can we expect precedent
to have the same role and be employed in the
same manner in an era of cybertime and
cyberspace? Can traditional expectations and
attitudes concerning the finality of decisions
be supported? Can a model of enhancing value
through preserving information be expected to
prevail over a model which assumes that
information is always changing?
{par. 62}
Those who encounter cyberspace often experience
the kind of disorientation that one feels in a
place where behaviors and expectations are
different from one's own. We assume that this
feeling is a result of entering a world where
one finds, unexpectedly, that the space of
cyberspace can be crossed in a flash. But
perhaps our disorientation is also from the
flash itself-from a kind of electronic jet lag
in legal thinking that is only now beginning to
reveal our new relationship to time in
cybertime.
------------------------------------------------------------------------
FOOTNOTES
[FN
1:
Copyright 1995 M. E. K., Professor of Legal
Studies, University
of
Massachusetts at Amherst,
K.@legal.umass.edu.]
[FN
2: N.
S., Mind is a Leaking Rainbow, in M. B.,
ed.,
CYBERSPACE:
FIRST STEPS 55 (1991).]
[FN
3: M.
E. K., LAW IN A DIGITAL WORLD (1995); M. E.
K.,
Rights,
Camera, Action: Cyberspatial Settings and the
First Amendment, 104
YALE L.J.
1681 (1995) <HTTP copy>.]
[FN
4: F.
S., Free Speech and the Demise of the Soapbox,
84
COLUM. L.
REV. 558, 558 (1984) (reviewing ITHIEL DE SOLA
POOL, TECHNOLOGIES
OF FREEDOM
(1985)).]
[FN
5: M..
M., UNDERSTANDING MEDIA 23
(1964).]
[FN
6:
Quoted in D. R., THE ORAL TRADITION, THE WRITTEN
WORD AND THE
SCREEN
IMAGE 12-13 (1956).]
[FN
7: L.
B., The Opportunity in the Law. Address
delivered to
Harvard
Ethical Culture Society, May 4, 1905, cited in
G. C. H.,
JR. AND D.
L. R., EDS., THE LEGAL PROFESSION:
RESPONSIBILITY AND
REGULATION
15 (1985).]
[FN
8:
Scripps-Howard Radio, Inc. v. FCC, 62 S. Ct.
875, 879 (1942).]
[FN
9: M.
M., Five Sovereign Finger Taxed the Breath, in
EDMUND
CARPENTER
AND MARSHALL MCLUHAN, EDS., EXPLORATIONS IN
COMMUNICATION 208
(1960).]
[FN
10: M.
E. K., THE ELECTRONIC MEDIA AND THE
TRANSFORMATION OF LAW
22-39
(1989).]
[FN
11: I.
D. S. P., TECHNOLOGIES OF FREEDOM 213
(1983).]
[FN
12: J.
C. AND PERCIVAL MUIR, EDS., PRINTING AND THE
MIND OF MAN
(1967).]
[FN
13: E.
E., THE PRINTING PRESS AS AN AGENT FOR CHANGE
703
(1979).]
[FN
14:
This is a central theme of M. E. K., THE
ELECTRONIC MEDIA AND
THE
TRANSFORMATION OF LAW (1989); see also R. K. L.
C. and D. M.
S.,
Paratexts, 44 STAN. L. REV. 509
(1992).]
[FN
15: J.
B., These Precious Monuments of...Our History,
THE AMERICAN
ARCHIVIST
v. 22, No. 2 (1959), p. 175-176. See also B.,
S., T.
J. AND HIS
COPYING MACHINES (1984).]
[FN
16: D.
L., Legal Storytelling: Difference Made Legal:
The Court
and Dr.
K., 87 MICH. L. REV. 2152, 2152
(1989).]
[FN
17:
The use of a title page is a practice that came
into being shortly
after
Gutenberg.]
[FN
18:
The fact that books represent something fixed is
implicit in the
remark,
attributed to former Governor M. C., that any
politician who
writes a
diary should use a looseleaf
binder.]
[FN
19: I.
M. THE NEW SOCIAL CONTRACT (1980) R. E.
S.,
Article 2
and Relational Sales Contracts, 26 LOY. L. A. L.
REV. 789 (1993);
S. M.,
Elegant Models, Empirical Pictures, and the
Complexities
of
Contracts, 11 LAW & SOC. REV. 507
(1977).]
[FN
20:
This point is more fully discussed in K., LAW IN
A DIGITAL WORLD,
supra note
3, at 114-32.]
[FN
21: L.
F., THE MORALITY OF LAW 39
(1964).]
[FN
22:
Id. at 33-34.]
33[FN
23:
Id. at 37.]
[FN
24:
Address to Computers, Freedom and Privacy
Conference IV, March 26,
1994.
<gopher copy>.]
[FN
25:
Planned Parenthood of Southeastern Pennsylvania
v. C., 1992 U.S.
Lexis
4751, 23, 112 S. Ct. 2791, 2803 (1992). <FTP
copy>.]
[FN
26:
1992 U.S. Lexis 4751 at 65.]
[FN
27: O.
W. H., SPEECHES 102 (1934).]
[FN
28: B.
v. C. Oil and Gas Co., 285 U.S. 393, 447
(1932).]
[FN
29: K.
K., OUT OF CONTROL 25 (1994).]
[FN
30:
Id. at 439.]
[FN31:
<HTTP copy>]
[FN
32: B.
draws an analogy with sharks, who "are said to
die of
suffocation
if they stop swimming, and the same is nearly
true of
information.
Information that isn't moving ceases to exist as
anything but
potential
... at least until it is allowed to move again.
For this reason,
the
practice of information hoarding, common in
bureaucracies, is an
especially
wrong-headed artifact of physically based value
systems." J.
P. B., The
Economy of Ideas: A Framework for Rethinking
Patents and
Copyrights
in the Digital Age, WIRED, March, 1994, at
84.]
[FN
33:
See also J. G., Just a Damn Minute, New York
Times Magazine,
May 14,
1995, p. 12 ("The problem is, even a second is
long-not an instant
anymore.
It stretches out before us as a container, with
events and voids to
be filled
with milli-, nano- or picothings. A second is
long enough for
impatience
to begin welling up.").]
[FN
34: J.
D. B., T.'S MAN 101 (1984).]
[FN
35:
For a discussion of light as an inherent part of
cyberspace, see
K., LAW IN
A DIGITAL WORLD, supra note 3, at
212-15.]