Understanding the New Virtualist Paradigm

Jonathon W. Penney


This article discusses the central ideas within an emerging body of cyberlaw scholarship I have elsewhere called the "New Virtualism". We now know that the original "virtualists"- those first generation cyberlaw scholars who believed virtual worlds and spaces were immune to corporate and state control - were wrong; these days, such state and corporate interests are ubiquitous in cyberspace and the Internet. But is this it? Is there not anything else we can learn about cyberlaw from the virtualists and their utopian dreams? I think so. In fact, the New Virtualist paradigm of cyberlaw scholarship draws on the insights of early cyberlegal work while acknowledging the need to bring more realism and empiricism to cyberlaw analysis. With reference to examples of both original and new virtualist work, I set out three key features or innovations of the New Virtualism: first, its recognition of the permeability of real and virtual space; second, its reliance on the interdependence of cyberlaw analytical perspective; and third, its rejection of the cyber-utopian's Legal Immunity Thesis. The paper concludes with a discussion of future directions for New Virtualist scholarship in both privacy and copyright law.

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