Lessig and implications for Intellectual Property Law

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Lessig and implications for Intellectual Property Law 
Rimantas Petrauskas    & Mindaugas Kiskis

Dept. of Legal Informatics
The Law University of Lithuania.

Lessig’s second book (The Future of Ideas), builds on the ideas of the Code and specifically looks into effects of the code on intellectual property, arguing that technical protection in many cases surpasses legal protection and is even used as a superior measure for enforcement of intellectual property rights, which currently cover all the different kinds of valuable information. Code also allows excluding the uses of the information (IP), which are specifically permitted by the law.

Lessig’s suggestion of open commons based licensing is hardly acceptable to many IPR holders, hence additional instruments, which would reconcile technology (code), right holders’ rights and users’ rights is very important. Thus, intellectual property law currently faces a major dilemma of both protecting the code (technical measures) against unauthorized circumvention, as well as defying it when lawful user’s rights (fair use) is concerned. This dilemma is increasingly important for the Internet where a lot of valuable information is becoming locked by the code and hence inaccessible to the otherwise entitled users (e.g. students).

Our paper will focus on the above dilemma, its manifestations and effects in the academic world and legal practice, as well as possible resolutions of this dilemma. We believe this is well within Lessig’s lines.

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Lessig’s Technological Determinism

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Lessig’s Technological Determinism 
Andres Guadamuz

School Law
University Edinburgh

This paper explores the apparent technological determinist view of Lawrence Lessig’s ‘Code and Other Laws of Cyberspace’. The philosophical debate about the role of technology in society has been raging since the Enlightenment, and it is based on a very simple question, does technology shape society? Those who answer this question with an affirmative have been generally considered technology determinists, a view that in its most simple form asserts that technology drives history. The paper will explore whether ‘Code’ is indeed a technological determinist book, and whether some of the criticisms levelled against determinism should be used to criticise one of the corollaries that can be surmised from ‘Code’, and this is the view that the architecture of cyberspace shapes its function and regulation.

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Tracing the trajectory of a techno-legal ecology: stories from the open source development…

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Tracing the trajectory of a techno-legal ecology: stories from the open source development of the Gnutella protocol. Prodromos Tsiavos

Department of Information Systems
London School of Economics and Political Science

I will study the workings of an open source license that is the General Public License in the Gnutella case in order to assess its nature and the level of openness it allows.

In order to achieve this objective the paper suggest a methodological shift from studying regulation as an end product to the study of regulation as a self-producing process. This is achieved by using Actor Network Theory (as described by Bruno Latour): 20,000 postings exchanged by the various developers of the Gnutella protocol are qualitatively analysed through the employment of the AtlasTi software in order to assess the frequencies of participation and the transformation of arguments over a period of four years. The instance of the emergence of a protocol alternative to the original Gnutella protocol, called Gnutella2 is the particular focus of the paper that aims at assessing the nature of openness that the GPL license provides.

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Code and Law: the Next Generation

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Code and Law: the Next Generation
Lilian Edwards

Law School
University of Edinburgh

Ever since Lessig’s Code and Other Laws of Cyberspace was published, we have been absorbing the insight that "code" in the form of computer code is as much a regulatory mechanism as the more familiar modalities of law, norms and markets. Part of the "code" revolution has been theassumption that "code" is often a *more* effective form of regulation than law in cyberspace – eg, DRM systems usually protect the copyright in the work protected rather more adequately than law alone. Yet often code alone is an ineffective protector of rights : P3P , the Platform for PrivacyPreferences, for example, is arguably a failed attempt to protect consumer privacy rights on line. Taking another example from the privacy domain, however, consumers’ rights to be free from spam often seem better met by technology than law, norms or markets. Taking an off line example which still involves digital technology as a threat, CCTV cameras threaten privacy far more effectively than DP laws can seem to protect it. The challenge now for scholars in the field of Internet law is to move beyond a simplistic recognition that "code regulates" or even "code trumps law", to an understanding of how code and law interact and what each can do for the other in meeting policy goals; and to look more closely at whose rights "code" typically protects.

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