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.]