Lessig’s Code: lessons for Legal Education; From the Frontiers of IT Law

Lessig in ‘Code and Other Laws of Cyberspace’, argues that code has already upset a traditional balance with respect to privacy. It has already changed the control that individuals have over facts about their private lives. He illustrates this with several privacy-threatening technologies. After an analysis of different conceptions of privacy and arguments pro and con privacy protection, Lessig presents a response to privacy threatening technology: privacy-enhancing technology. In his view, ‘code’ that disturbs the traditional balance between privacy and other interests should be checked by ‘code’ that incorporates privacy values.

In this paper we discuss privacy related developments in four spheres: national security, law enforcement, e-commerce and e-government, and try to answer the question if, and how, the traditional balance changes. We place these developments into perspective by an analysis of the reasonable expectations of privacy in the various domains. The balance between privacy and other interests changes at different speeds in the various spheres and is sometimes not warranted by intrinsic reasons (i.e. the threats outweigh the degree society has changed). As technology, by itself, seems to favour privacy-threatening ‘code’ more than privacy-enhancing ‘code’, the imbalance caused by unwarranted privacy threatening ‘code’, may have to be compensated. For instance by legal measures, such as increased privacy regulation, or mandatory incorporation of privacy-enhancing code.

Code and Law: The Next Generation
Lilian Edwards

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.

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.

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.

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.

Cyberspace as a metaphor for a community inspires many to interesting contemplations. But with a metaphor for a starting point, one needs a lot of luck to end up with a right analysis. The problem with Lessig’s code seems to be, that cyberspace as a community is not the only metaphor presented. So is ‘code is law’.

Code – that is the internet’s architecture, software and protocols – is not law, of course. Code is technology, and technology is usually not understood to be (legal) code. Instead of mixing the two up, for a proper understanding of how technology and law interact it might be better separating them.

In this paper authors will first present a model for analysing the questions raised by Lessig and others. Next they will indicate a characteristic of information technology that can be considered causal to these questions. Based on this model authors will then elaborate on some of the issues. The conclusion is, that the concern of Lessig and others will probably fade when information technology becomes more assimilated in society.

School of Law
University of Edinburgh.

This paper offers a reappraisal of Code through a sociological critique and revision of Lessig’s general model of social regulation. The distinctive contribution of the category of Code is recognised but it is argued that its characterisation by Lessig largely in terms of a particular conception of social regulation begs certain questions. Issues considered and clarifications suggested in this regard include: distinctions between Code, ‘architecture’ and technology; the adequacy of the four dimensions of regulation (is there a case for adding Psychology as a fifth?); the need to recognise the possibility of dissonance between regulatory dimensions; the possibility that regulators might not always want to regulate effectively; intentional regulation v. unintended consequences (social regulation v. social forces); the need to account for the possibility of resistance to regulation; and the case for modelling regulators as themselves always being subject to regulatory forces (multiple layers of regulation at play). It is argued in conclusion that this critique suggests that Code should be understood as a single element within a wider dynamic, and that the revised model helps highlight the particular strengths and limitations of Code as a regulatory dimension.

Digital Realism and the Governance of Cybercrimes
David Wall

Spam is a pure cybercrime as it is purely a product of the internet and a crime in its own right. Furthermore, it also represents information theft (spam list building) and it can facilitate the commission of further offences by enabling offenders to engage with victims or simply delivering viruses.

Using the example of Spam, this paper will demonstrate how law fails to control spam as undesirable social action. Yet, it will also argue that law remains important because of its ability to shape (and restrict) the digital architecture which allows spam to thrive.

Laws and codes for the Internet: a continental European legal perspective
Fernando  Galindo.

Lessig directs himself primarily to American users of the Internet and this clearly affects the value of his work outwith the US. His work suggests to these users that some Laws are precise and can be applied to the Internet so that the Internet functions well rather than displaying a constant fight amongst its users. However Lessig thinks that the mere translation of the Constitution (he concentrates upon Constitutional matters rather than wider legislative matters) by jurists is not enough to develop solutions to all legal problems of the Internet: new problems exist whose solutions cannot be found through legal decisions made through the traditional legal route – new norms must be arrived at in a different manner.

This paper, however, will argue that Lessig’s US-oriented view is not going to contribute to European jurists basic strategies to solve the practical problems that the use of the Internet and the Information and Communication Technologies create.

Law is a singular social phenomenon. It affects each and every one of us. It interests each and every one of us. It is easy to talk about; it is easy to write about. And it is easy to criticize. Law and justice do not always go hand in hand, however. The work we do and the tools we use to determine what is right and what is wrong are inadequate. In the modern constitutional state, law and justice should coincide as closely possible. This is one of the fundamental requirements of democracy. The principal way in which we, as a society, pursue, articulate and realize justice is to draft and enact laws. Laws are codes that impose obligations in various ways. The world we live in is a world of legal codes. There is no shortage of laws, and more are being enacted as we speak. This is a problem. In a democracy individuals should know the law. This is a sound principle. Otherwise we would not be living in a democracy.

At one time, it was thought that open information networks required no regulation. That is, information space would be a realm of freedom. This was a noble enough notion before open information networks became an infrastructure of and for the masses; this is what they most decidedly are today. The information highway was a good slogan in its day.

Regulation of infrastructure is an exceptionally difficult form of regulation. The rationale for it must always be grounded in the social contract and basic rights. Yet this has been largely forgotten when enacting provisions that govern open information networks. Convergence has yet to reach to the level of basic rights.

Lawrence Lessig has proposed that we invert the perspective to view programming code as law. This is the correct point of departure. It is in fact a good example of how science should carry out its critical function in society. What happens after that is more problematic. It is easy enough to write about law.

But if we keep a close eye on the position of information networks as part of society’s infrastructure, the crucial role of programming code becomes apparent. Open- and closed-source code are both important in legal terms. And – as I will argue – it is the regulation of open-source code that is the priority. It is a crucial step towards the goal of keeping democracy simple.

Nicolaus Copernicus University, Torun

I must agree with Lawrence Lessig’s opinion that the „world online” is different enough to be distinguishable from the „offline world” in significant ways. There is such a situation, I believe, in the field of human rights’ promotion and their protection. Every epoch brings some new possibilities for human development but together rising threats for the evolution of his personality. New situations need new solutions. Common usage of fruits of scientific and technological development, rising a new phenomenon of the cyberspace alters the way how human rights are exercised and the way how they are protected. In this context I advocate the so called „regional model” of human rights protection in contradiction to the universal one. Regional approach allows to create specific instrument that will be adjusted to unique status of the cybeprspace. That space may be perceived like a geographical region with very specific cultural, political and environmetal conditions, different from the world we know. In this paper I indicate some requirements that such quasi – regional system should fulfill in order to assert an effective and useful protection of human rights.