Does Technology Require New Law

Abstract

Technological change affects the law in at least three ways: (1) by altering the cost of violating and enforcing existing legal rules; (2) by altering the underlying facts that justify legal rules; and (3) by changing the underlying facts implicitly assumed by the law, making existing legal concepts and categories obsolete, even meaningless. The legal system can choose to ignore such changes. Alternatively, it may selectively alter its rules legislatively or via judicial interpretation. In this essay I first discuss, as an interesting historical example, past technological changes relevant to copyright law and the law's response. I then go on to describe the technological changes that are now occurring or can be expected to occur over the next few decades, the issues they raise for the legal system, and some possible responses. I conclude with a brief discussion of the degree to which such changes can be addressed under current legal rules and the degree to which new rules may be required.

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