Other writings by the authors of
The Social Life of Information:
Net or Web?
TLS
2000 March 24
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[This is the draft text of a
review of Larry Lessig's Code and Other Laws
of Cyberspace (Basic Books, 1999), which
appeared in the Times Literary Supplement, March 24, 2000]
"Information wants to be free." Though
an early rallying cry in cyberspace, it was never quite
clear what this meant. Was information really the sort of
thing that could be imprisoned—or, indeed, that
could want? Those who cut and pasted this phrase across
the Internet didn't seem to care. They generally agreed,
though, that the technology of the Internet was a force
for general liberation.
Inevitably this enthusiasm produced a
"Declaration of the Independence of
Cyberspace":
Governments of the
Industrial World, you weary giants of flesh and steel, I
come from Cyberspace, the new home of Mind. On behalf of
the future, I ask you of the past to leave us alone. . .
This may read like a poor parody of Jefferson
crossed with Marx, but it was taken seriously in
cyberspace. Indeed, hype about this alternative world
pushed legal scholars to call for separate
cyber-legislation. The brief that cyberspace was not,
could not be, and should not be law unto itself was taken
up by Larry Lessig of Harvard University. Code
and Other Laws of Cyberspace presents his
findings.
It has never been easy to puncture the inflated
rhetoric of cyberspace, but Lessig brings to the task a
sharp mind, detailed legal knowledge, and a remarkable
understanding of the Internet as a technological, social,
and commercial phenomenon. His expertise earned him the
role of "special master" (an expert advisor to
the judge) in the Microsoft's trial for anti-competitive
practices. Lessig's recent findings there have probably
unsettled Microsoft. His book is unsettling, too as it
unsentimentally pulls the plug on the utopian visions of
cyberspace.
The "Declaration of Independence of
Cyberspace" was not only ungainly. It was also
untimely. Posted on the Net in 1996, it now reads like
the last cry of a fantasy that reality was fast leaving
behind. By then, the government-created Internet had
already been handed over to the private sector and its
vaunted agora was on its way to
becoming a more prosaic marketplace—one,moreover,
with monopolistic tendencies.
In their gnostic enthusiams, the utiopians failed
to understand that even if information technology (IT)
might plausibly be said to "free" information
from books, libraries, and other demons of cyber
enthusiasts, information would nonetheless become
dependent on IT. The shift from old technologies to new
ones is merely a migration from an old set of constraints
to a new set. We need to understand the implications of
the new, digital constraints, Lessig argues, but
understanding isn't easy. First, the cries of digital
emancipation get in the way, and Lessig is eager to brush
these aside. Second, the implications of new technologies
can be much harder to read than those of the old ones.
To illustrate the problems thrown up in this
technological shift, Lessig points out how law takes for
granted the material character of the world. (So, for
example, there are laws to prevent the theft of cars, but
not to prevent the theft of skyscrapers.) Consequently,
Lessig argues, the law can find itself tongue tied when
material underpinnings change. True, buildings have not
been digitized. The digital shift nonetheless makes it
unclear, for instance, whether the Fourth Amendment,
which limits the government's power to send federal
agents into houses, has anything to say about digital
agents sent to scrutinize our computers. On the basis of
such arguments, Lessig concludes that "Architecture
is a kind of law". And by extension, software
architecture legislates too. The troubling issue for
Lessig then is that the implications of digital
architecture are much more difficult to understand.
(Lessig is never completely clear whether this is merely
a temporal problem or an enduring one.)
For those not familiar with the structure of the
Internet, let me offer as an analogy for Lessig's
argument the architectural shift between the British and
the United States' legislative chambers. The House of
Commons' rectangular shape clearly expresses the British
constitution's prejudice for a two-party system, divided
into government, on one side, and opposition, on the
other. By contrast, the semicircular U.S. Congress would
seem to reflect the founders' rejection of the party
system. Consequently, the present division of the spoils
between Democrats and Republicans may appear to be the
natural result of popular will. Of course, it is nothing
of the sort. It is primarily the result of ceding to
these two parties control over major chunks of the
electoral process. They have accommodated one another and
excluded other parties as far as they could. But none of
this is visible in the architecture, and so its is easy
to assume that the two-party outcome is somehow natural
and uncontestable.
Code and Other Laws of Cyberspace
suggests that something similar is happening with the
Net. The liberationists (and libertarians) tell us that
the old has been swept away and we should embrace the new
as an instrument of liberation whose current
configuration is more or less inevitable. But behind our
backs (and theirs), the old spoils system is creating
itself anew and unchallenged. Its major architects now
are private, profit-seeking firms. These are not, of
course, inherently bad, but they are quite understandably
pursuing their own interests and reaching accommodations
that suit them. These accommodations have profound
implications for the public, yet they all but preclude
public debate.
This argument brings Lessig to the pun in his
title. As software plays a greater part in daily life,
"old" code, the legal code, he argues, is being
replaced by "new" code, software code. Acts of
public legislation are being rendered irrelevant by the
fiat of private software designers. To illustrate the
point, Lessig examines four areas—intellectual
property, privacy, free speech, and
sovereignty—where, he fears, change is occurring
before our eyes but beyond our grasp.
For those more familiar with the TLS than with
URLs, the first of these may be most intelligible. Law
governing the intellectual property in books is a fairly
well-understood and settled matter. Copyright gives
writers the chance of a fair return on their labour. But,
in response, copyright holders effectively cede a good
deal. Buyers get the right to resell or lend as they
chose (the right of "first sale") and the right
to quote for purposes of criticism (the right to
"fair use"). And ultimately, the public gets
the work itself, which enters the public domain after a
set number of years.
A shift to digital books dissolves the fulcrum of
this balancing act. Copyright holders no longer need cede
anything in return for control of their work. New
technologies can, at least in principle, determine finely
when, how often, how much, and for how long a reader
might "access" a work. They can track, prevent,
or charge for copying, loan, resale, and even quotation.
And they can keep works out of the public domain
indefinitely. Such changes, Lessig claims, give copyright
holders "the biggest gift of protection they have
ever known" without any public debate.
Liberationists have tended to assume that this gift will
go to individual writers, freeing them from dependency on
the state for protection. It is more likely to go to the
corporations who control digital distribution
systems—and economic "network
externalities" suggest that these will always be
large. So individuals may be freed from the state, only
to become dependent on mamoth corporations—not only
in the matter of copyright, but in the other three areas
of Lessig's discussion.
Can anything be done? Lessig's answer is both yes
and no. He answers yes, optimistically, because he
believes that, contrary to popular belief it is possible
to regulate the Internet. The Net has not taken a natural
form. It is the product of deliberate choices that
governments have significant power to influence. They and
the courts can exert pressure to modify the Net's design
in the public interest, and they should. But Lessig
answers no, pessimistically, because U.S. society has so
corrupted and devalued the legislative process that it is
"incapable of making any useful decisions."
Uncharacteristic perhaps in its lack of optimism, Code
and Other Laws of Cyberspace is nonetheless
very much an American book, framed within the American
constitution, legal code, and distrust of government.
This framing, its technical detail (of both law and
Internet technology), and Lessig's tendency to hyperbole
(is encryption technology really "the most important
technological breakthrough in the last one thousand
years"?), may limit the book's appeal on the other
side of the Atlantic. Yet Europeans (and others) should
listen to what Lessig has to say. After all, the Internet
does not acknowledge national boundaries and so, whether
it is determined by the American legal code, commercial
code, or software code, it affects us all, and society
needs to find ways to influence its architecture.
Furthermore, in some ways Lessig's approach is
significantly European. To call for government
intervention is still relatively unexceptional in Europe.
In America, particularly among the utopians of
cyberspace, it is anathema. (Only last month, the mild
hint that a little regulation might do the Internet some
good brought a death threat to the editor of one
respected Internet newsletter.) As recent negotiations
over on-line privacy and GM foods have shown, while
intuitively fearful of government, Americans remain
surprisingly complacent about corporate behaviour.
Europeans, by contrast, lean the other way. Along with
the inscrutibility of digital architecture, this
imabalance of fear and complacency is the source of
Lessig's worry and suggests, perhaps, the need for a
European—American rapprochement and a more informed
discussion of government and corporate roles in the
shaping of technology. No one should be complacent about
government behaviour, of course. A recent raid by the
Norwegian police on the house of a naïve teenager who
decoded the software protecting films reminds us that in
Europe governments are indeed invasive. But it also
reminds us that, for the most part, the government still
comes through the front door. Corporations, Lessig wants
us to recognize, have found more subtle ways to catch us
in their net.
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