Internet Norms DRAFT 1 The Law and Economics of Internet Norms 1 Mark A. Lemley 2 Private ordering is in vogue in legal scholarship. Nowhere is this clearer than on the Internet. Legal scholars who study the Internet talk freely about new forms of governance tailored to the specific needs of the Net. Only rarely are these "governance" models ones that involve a significant role for government as classically envisioned. Some scholars see international law, with its emphasis on political and moral suasion rather than legal authority, as the appropriate way to govern what is after all an international phenomenon. 3 Many others, though, look to contracts as the preferred model for governing cyberspace. Their visions of private ordering differ, ranging from 1 Copyright 1998 Mark A. Lemley. 2 Professor of Law, University of Texas School of Law; of counsel, Fish & Richardson P.C., Austin, Texas. Visiting Professor, Boalt Hall School of Law, University of California at Berkeley (Fall 1998). I would like to thank Keith Aoki, Julie Cohen, Susan Freiwald, Rose Hagan, Larry Lessig, David McGowan, Peggy Radin and Eugene Volokh for comments on an earlier draft, the participants in the Olin Law and Economics Workshop at Stanford Law School and the Chicago-Kent symposium on the Internet and Legal Theory for helping me to hone these ideas, and Ryan Garcia for research assistance. 3 See, e.g., Matthew R. Burnstein, Note, Conflicts on the Net: Choice of Law in Transnational Cyberspace, 29 Vand. J. Transnat’l L. 75 (1996); Sean Selin, Governing Cyberspace: The Need for an International Solution, 32 Gonzaga L. Rev. 365 (1997); Raymond T. Nimmer, Licensing on the Global Information Infrastructure: Disharmony in Cyberspace, __ J. Int’l L. Bus. 224, 246-47 (1995). David Post offers the Clinton Administration‟s NII White Paper and the WIPO Copyright Treaties as examples of this internationalization tendency. See David G. Post, Governing Cyberspace, 43 Wayne L. Rev. 155, 164 n.24 (1996). While international law is not really private ordering, because it involves the interaction of governments, the way in which governments interact in international law (at least in peacetime) is generally through agreement and not coercive authority. See I. Trotter Hardy, The Proper Legal Regime for Cyberspace, 55 U. Pitt. L. Rev. 993, 1022-25 (1994) (treating customary international law as a form of quasi-private ordering). Cf. Robyn Forman Pollack, Creating the Standards of a Global Community: Regulating Pornography on the Internet -- An International Concern, 10 Temp. Int’l & Comp. L.J. 467 (1996) (suggesting international self-regulation). Dan Burk makes the suggestion that international treaties harmonizing trademark law will help alleviate some of the problems associated with the Net‟s globalization of trademark disputes. See Dan L. Burk, Trademark Doctrines for Global Electronic Commerce, 49 S. Carolina L. Rev. 695, 731-33 (1998). This is not really an argument for internationalization as a replacement for sovereign law, since the treaty in question would simply facilitate the enforcement of national laws.