Thomas Folsom, Regent University School of Law, has published Finding Superman in Cyberspace (Poisoned Flowers, Pt. 1): Resolving Focal Point and Trademark Disputes on the Internet and in Cyberspace by Rewriting Code in volume 43 of the McGeorge Law Review (Winter 2012). Here is the abstract.
In an objective cyberspace that relies on a virtual map featuring dynamically coded focal points functioning as markers and spoilers, addresses, magnets, roadblocks or detours, there is an opportunity to describe norms, to distinguish forms of offensive conduct in respect of new technological uses beyond trademark, and to prescribe effective, modest, and technologically reasonable remedies. I propose that conduct which: (a) alters the virtual map, (b) plants deceptive focal points, (c) ambushes a user of focal points with uninvited, invasive, or false invitations, or (d) expropriates, blocks, or spoils focal points otherwise available should be an actionable focal point offense.
I also propose a modified set of trademark likelihood-of-confusion factors for "invisible and attenuated" new technological uses in cyberspace and I explicitly link the trademark-style and focal-point style offenses into one unified theory. My proposal relies on modest remedies--reasonable technological accommodations--that use countervailing code to remediate the problems caused by offending code, and it limits the extent of secondary liability. I thereeby preserve a robust and freely navigable cyberspace with minimal regulatory interference and with maximum freedom to use search terms and other focal point landmarks as legitimate aids to navigation.
Incidentally, I define an objective code world having a number of discrete places, and I propose a technique for desiging transformed laws appropriate for it. To help explain and illustrate the power of coded exceptionalism in a coded world, I use Professor Lessig's well-known example of poisoned flowers in cyberspace, to which I add the problem of "finding superman" in cyberspace. I likewise use Judge Easterbrook's observations about the law of the horse, to which I add the special problems of coded horses (or, as it were, "magic horses") in a coded world.I am proposing specific steps to align laws, code, norms, prices, and architecture in an objective code world. I import some concepts from game theory to do so.
Referring to Judge Easterbrook's famous article about cyberspace and the law of the horse (which questions whether cyberlaw exists, or should), Professor Folsom writes in part:
These coded horses, created by will and words, reproduced and multiplied at almost no cost, distributed essentially for free, and adapted or modified as we please, have no real likeness to any similar things or to any similar powers affecting them in ordinary space. This is exactly what we would call "magic" words and magic horses if any such thing existed in the ordinary world. But it is merely what we call "code" in the code world. And it is as common there as it is utterly unprecedented in the ordinary world. Because these magic horses are themselves (still, at least for the most part) coded, and may be decoded or recoded by someone else (a person who is acting deliberately, directly or indirectly), they are precisely what we would call "the magician’s horse."
Such constructs as these, common to the code world but without any strong analog to the ordinary word, at least occasionally create a set of objective problems with real consequences and real relationships that ordinary law is systemically unsuited to handle in the code world. It is for this set of cases that there is a need to consider a new sort of law sitting for the new technology; a law for the magician's horse, reasonably specified to constrain predatory or piratical actors without destroying the power of code for the common good. It is for this reason that that I am not only proposing a unified general theory of design to deliberately specify law for the code world, but am actually working out a particular solution to a particular problem that I claim is principled, practical, and predictable. (footnotes omitted)
Professor Folsom cites to Professor Allen's Magical Realism essay in Law and Magic (Carolina Academic Press, 2010) at 195, noting that he is looking for "'real' magic in terms of objectively operative utterances, repeatable and reproducible on demand in ordinary space to parallel the objective power of code in the code world." He seems to think that the way that the legal realists thought about law as magic might, might qualify, but doesn't think that "legal formulae, robes, or other trappings and shows of conventional semiotics" do. Hmmm. He and I obviously disagree. A ruling from a judge can change a document that purports to be a Last Will and Testament into a piece of paper suitable only as a placemat at a family dinner. If you're looking for transformation, that's pretty transformative, and it happens because of the black robe (both the apparent and the real authority). Is that so different from code, which changes the genuine into the false, or the false into the genuine? I think I understand his argument, but I'm not so sure that I would discount the ritual and the language as well as the philosophy that accompanies them. One can make distinctions among the three, but I think they hang together pretty well.
In any case, interesting article, worth reading.