The Social Life of Information John Seely Brown and Paul Duguid

Other writings by the authors of The Social Life of Information:

Net or Web?

2000 March 24

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Net or Web

Paul Duguid

[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 na´ve 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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