When you consider the rate at which new technologies drive changes in our business practices and personal lives many analogies come to mind. A runaway train is one of the first to conjure up the image made popular by the Grateful Dead. My own personal image comes from my childhood. We kept horses when I was a boy and my favorite was a Tennessee Walker named Fleetfoot. Fleetfoot was the fastest horse in Monroe County but he was not high strung or skittish in the least. He really was a sweetheart and was one of my best friends. We kept the horses in a hollow just down the road and one day my friend Jack and I went out for a ride. For some reason, I forgot to cinch down the saddle tightly and while I was letting Fleetfoot do his thing the saddle flipped over and I found myself hanging upside down on the world's fastest horse. That moment of panic is not unlike the way I often feel about the growth of information technology. Fleetfoot sensed the problem immediately and came to a quick stop on his own. Information technology on the other hand just seems to continue to speed up with no end in sight. That has created the concept of “internet time” in which ever larger chunks of pre-internet time are consumed in a flash. What took an hour to do a year ago may take a minute to do today and a few seconds next month. In other words, it is not just the change wrought by information technology that is important but also the ever-increasing rate of change that confronts us daily. The question we have to consider is whether the law is adequate to deal with the kinds and rates of change with which we are confronted. The other day I was in the meeting with a group of very experienced and intelligent people from both business and law. Most of the members of the group were concerned about the interface between law and the new technologies and found huge issues that were growing in abundance. One of our number, however, expressed great skepticism that there was anything new under the sun that could not be dealt with using traditional legal principles and analysis. In large part he was right. For example, the recent spate of commentary about digital signatures is to my mind much ado about nothing. The common law provides perfectly adequate rules for validating signatures whether they are electronic or not. The fear that electronic versions of documents are somehow more susceptible to fraud that other kind of documents is a common misconception. But the fact that there are many instances in which existing legal rules and constructs can provide guidance for solving the information technology problems of the 21st century does not mean that every 21st century problem is susceptible to the sturdy application of common-law principles.
Let me tell you about one problem that makes me feel like I am hanging upside down on Fleetfoot as he goes faster and faster over the rocks and logs in our field back home. I'm sure all of you have heard about the Napster phenomenon, which uses a relatively new technology known as peer-to-peer computing. Peer-to-peer computing allows many computers spread over the Internet to interact with each other as if they were a single computer. The development of this technology is moving very fast and it appears to be one of the few technologies that should actually earn the overused label “paradigm shift.” One of the variations Napster model allows for thousands of computers to be connected to one another over the Internet for the sharing of resources and downloading of files. With this particular version of peer-to-peer computing the download from one computer to another is done in total anonymity. Thus any computer on the peer-to-peer network is able to download and use any material whether it be copyrighted or not and there is very little that any copyright holder can do to control it. Law cannot operate in a vacuum and it strikes me that we are dealing with a system where copyright violations are ubiquitous and anonymous--not the kind of thing the common law was designed to deal with. In fact, it may be that the solution to this kind of copyright violation lies not with law but beyond law with technological tools that prevent the thief from benefiting from the purloined material. There are many, many other examples of that kind. Probably the most prominent is the current attempt to use traditional antitrust law to thwart the perceived monopolistic practices of Microsoft. By the time that case reaches the Supreme Court, whether it is this term or next, the information technology landscape will have changed so dramatically that the remedies proposed by the trial judge will be nonsensical. With Napster promising distributed computing over the Internet, Citrix and Microsoft promising Internet based ASPs and Larry Ellison hawking his network computers it may just be that the desktop operating system we love to hate will be an anachronism.