There’s an interesting discussion going on over at Cato.org about Larry Lessig’s book Code (and Other Laws of Cyberspace), celebrating the 10th anniversary of its publication. Code’s a very important book, in my view (and, I think, objectively speaking, in the view of pretty much everyone involved in thinking about law and regulation on the Net). Lessig got a lot of things right in Code ; most fundamentally, the idea around which much of the book is organized - that “code is law” on the global network – is a very rich one, and even a profound one, and it has been central to a great deal of very productive thinking in the field. Code got some things wrong, too – most fundamentally, when Lessig argued that it is fruitless (and perhaps even dangerous) to talk about cyberspace's “nature.” [If I could explain my reasons for saying that he was wrong about that without having to write a whole book, I would do so; but I can’t, so you’ll just have read the book if you’re interested].
I’ve written a fair bit about Code, in my book and elsewhere, and I won’t repeat what I’ve already said – in fact, one of the interesting things about Code and its role within the cyberlaw debates of the last decade is that the book actually helped move the conversation forward. Lessig positioned the book as an attack on, and a direct response to, the “cyber-libertarians.” The “cyber-libertarians,” in turn – myself among them – took him to task for that. But after duking it out for a while, it turns out that there wasn’t as much there as we thought: that debate isn’t where the interesting action is, in cyberspace. There’s plenty to argue about, regarding cyberspace law and policy; but arguing about the labels isn’t too useful or productive. That’s precisely the interesting thing about cyberspace; as Lessig puts it, “what drew me to cyberlaw originally was that it (originally) obscured politics. It confused intuitions. And in that confusion, people were forced to think. No crude shorthands. No summary judgment based upon a supposed set of affinities with debates almost a century old.”
So when Adam Thierer, defending the cyber-libertarian position, writes:
“Thus, at risk of repeating myself, I must underscore the key principles that separate the cyber-libertarian and cyber-collectivist schools of thinking. It comes down to this: The cyber-libertarian believes that ‘code failures’ are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions. Moreover, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those response(s).”
Lessig can respond: I completely agree.
OK, then; we’re all Jeffersonians, now. (“We are all republicans. We are all federalists.”] We all agree: voluntary, spontaneous, bottom-up, marketplace responses are better than coerced, top-down, governmental solutions – except when they’re not. That is simultaneously both a useless tautology and an important point of consensus. What do we do about copyright law? Should we preserve the ability to speak anonymously on the Net? Should end-to-end network neutrality be preserved? How? We can just assume that we are all looking for the “voluntary, spontaneous, bottom-up” solution – but what is it? What does the voluntary, spontaneous, bottom-up solution to the copyright problem, or the anonymity problem, look like? What is the “problem” we’re trying to solve? Where do we want the system to end up?
Those are the interesting debates, in cyberlaw. There’s plenty to disagree about, and there are lots of heated and important arguments, about what kind of copyright law we should have, or how much anonymity needs protection, or whether end-to-end is valuable in and of itself. The line dividing the opposing viewpoints, though, isn’t captured by the labels; the positions that are staked out don’t fall out along libertarian vs. collectivist lines. Plenty of libertarians, and plenty of collectivists, can agree (if perhaps for different reasons) that copyright law needs a radical overhaul (and there are libertarian and collectivists a-plenty among those who argue that it does not).
That’s good news, I think, because it means that (rough) consensus on particular issues, and specific problems, might actually be achievable – maybe even on the required global scale. Libertarian vs collectivist, Jeffersonian vs Hamiltonian – issues that align themselves clearly along these lines never can get resolved by consensus, because people disagree, quite fundamentally, about these principles. Real change is made possible when those lines don’t define the debate anymore.
Best,
Ben
Best,
Ben
Talk about a point that sounds good and means nothing. If it's an important point of consensus, then I'm pretty sure it's not useless. If it's a useless tautology, then it's not going to be important, even if it is a point of consensus. Honestly, if you have to say something like this, try to do it in a lit crit department meeting. You may actually get an appreciative nod and furrowed brow there.
/they were wrong
What strikes me especially is this: 'We can just assume that we are all looking for the “voluntary, spontaneous, bottom-up” solution – but what is it?'
It isn't the right question. A spontaneous solution is the libertarian solution, but it isn't something you have to find, it's something that just happens. So people build tor and anonymity is maintained for whistle blowers and the like. Meanwhile Wikipedia blocks anonymous edits from tor exit nodes.
The problem is that although there may be those who normally have collectivist tendencies who find themselves on the libertarian side of this issue, there are still authoritarians who believe that it is worth eliminating any freedom from retaliation that technology could have lent to those who would (for example) expose police corruption, as long as we can make law enforcement more efficient.
This is the same trend we see in copyright. In many cases it even overlaps. Here's a hypothetical: Adam anonymously posts a document on a message board revealing corporate malfeasance. Let's say it shows they have all the local prosecutors and some others on the payroll, which means disclosure to the DA instead of the public won't do any good. The document is technically copyrighted by Adam's employer, so they immediately submit a DMCA takedown notice. In order to have the document put back up, Adam would have to file a counter notice claiming the takedown notice was fraudulent and revealing his identity, then win a fair use claim in court and potentially be subject to a perjury charge for the counter-notice if he lost. More importantly it would unmask him and subject him to other retaliation by the employer. Yet clearly Adam is the one doing the right thing here, so why is the law on the side of the employer?
An alternative might be to require the copyright owner to notify the "infringing" party (through the service provider) if he would like to withdraw the document willingly, and otherwise notify him of injunction proceedings where he can choose whether to appear and where the copyright holder must prove to the satisfaction of the court that it owns the copyright and that the use is not justified. The result would be a harm to the economic interest of the copyright holder rather than the speech interest of the allegedly infringing party during the period the court is deciding the matter, and it puts the burden on the copyright holder to show that the use is not justified so that if it was justified the user is never unmasked. This because the copyright owner's harm is economic and can be recovered through an appropriate damage award. No amount of money is the analog of a speech restriction, to say nothing of the effect of a law that allows any anonymous speech can be erased by anyone making a false copyright claim when they expect the speaker will choose to remain anonymous rather than contest the take down notice. Yet Congress has chosen the take down procedure because there are authoritarians who put enforcement of copyright ahead of freedom and constitutional rights. Those people, largely the media companies, are the obstacle to copyright reform, not any disagreement with Lessig et al.
Network neutrality, by contrast, is a totally different animal. Its necessity is brought about by a structural market failure which is itself exacerbated by the government granting effective regional duopolies over internet service. In that debate there are really three sides: The first two, respectively, are that the solution is more competitors and that the solution is more "network neutrality" regulation of incumbents. The third is the telco position that everything is fine and there should be neither regulation nor competition, which is patently absurd and only worth mentioning due to the amount of money and astroturf backing it. So the two legitimate positions on network neutrality do apparently fall along the lines of libertarian vs. collectivist, but it isn't a question of government action vs. no government action. The government has already acted and created a mess. The question is how to clean it up: Either the government can regulate network neutrality, or it can act to create enough competition that neutrality regulation is unnecessary.
The problem for the libertarians here is that this is one of the situations where philosophy interacts poorly with reality. Internet providers exist as a result of governments granting huge cash subsidies and the right of way through eminent domain. There is no "let the market sort it out" because "the market" here is an artifice of government. The most libertarian-like solution is to shear the companies apart: The existing "cable company" and "phone company" own nothing but the piece of cable between your building and the head end / central office, entirely different companies own the long distance "backbone" fiber that goes from city to city, and a third set of companies are responsible for purchasing last mile connectivity from one company and backbone internet connectivity from others and packaging them together to sell to the customer, potentially along with TV and phone service. The neutrality problem is solved because the only place where there is poor competition (the last mile) consists of two companies that provide only the wires and have no interest in what traverses them. The companies that have a say would have sufficient competition that no abusive practices could take root. At bottom it is probably a better solution than neutrality regulations, the problem politically is that the telcos would oppose it a hundred times more strongly.
Code is not law. Code is contract (private ordering). Contract is law.
Best,
Ben
then:
If you do not follow the law of code, you are banished from the Internet. It is the rule, the king, the LAW of the Internet, and of the software.
etc etc.
What we have here is a failure to communicate.
And this failure is promoted by the unfortunate wooliness of the concept being addressed here. 'Code is Law' sounds wonderfully deep and meaningful but what utility has this concept?
As a first level denotation 'code' is law.
As a second level conotation 'code' amounts to all sorts of normative technological and prescriptive legal requisities.
And Benjamin is also correct. 'Code is Law' is also a metonymic inference referencing a paradigm.
The significance of the statement 'Code is Law' lies in it's conflation of all of these modalities on inference. It has the same utility as McC's "The medium is the message."
HOWEVER: I provide a particular critique.
'Code is Law' provides a false dichromatic descriptive of a very colourful subject. Yes it is true (Water is wetness) but it is simply not a very helpful dialogue to develop if your primary interest is in understanding the phenomena being considered.
The debate regarding the forging of power relationships in the New Media is best typified in a metaphor addressing the volition of those involved in crafting meaning within the new public space, rather than in describing the interface between the sidewalk and the atmosphere. After all, volition is rarely impacted upon by the 'Code is Law' paradigm. It is rarely 'Volition v Code' or 'Volition v Law'. However the articulation of meaning within the medium is always 'Volition plus code equals..."
The next lower step is a "specification". It is often described as a contract. It describes the precise behavior of a system when called in specific ways with specific inputs. Unlike a standard which involves broad input, a specification can be created by a single group for a particular product. Thus behaviors of IE 8 may be described in a specification and may conform or differ from the incipient HTML 5 currently standard being developed.
However, programmers are notoriously unwilling to write documentation. Those associated with Unix and then generic Open Source tried to excuse this by suggesting that the actual code written to implement a function could be regarded as a substitute for the specification. "If you want to know how it works, just read the code." Of course, code changes from release to release, and the reason why we want a specification is to describe the behavior that will never change.
Lessig is a lawyer who knows a bit about technology, not someone who actually understands software engineering. While the details of a widely adopted implementation that lacks either standards or specification can establish a de-facto cyberlaw, as happened with Unix, the solution is to encourage proper standards and specifications and not to add governmental regulation to sloppy practice.
Anyone who believes that government will do a better job of regulation than corporations better learn the history of ISO 10646. Some corporations proposed a standard they called "Unicode" to create a single encoding for all the world's modern languages. ISO, which is an extension of government standards groups, first proposed a four byte alternative codeset that combined all the existing national standards into a real mess. Corporations simply want something that works; it takes a government to have a really evil agenda. The Soviet Union, for example, took care in international bodies to create standard codesets that had all the characters needed to express Russian, but omitted the additional Cyrillic characters needed for the other national languages of the Ukraine or Georgia. The objective was to suppress national identity by blocking where possible minority languages. They were successful in destroying a Mongolian written language that had lasted from Genghis Khan.
Eventually, ISO voted down the government based mess and adopted the corporate Unicode standard. It was simple, clean, and worked.
Sometimes corporations are the bad guys. Often government is the bad guy. The solution of checks and balances is a good model to apply outside and across government, just just within it. That is effectively what happens today and there is no particular reason to change it.
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