Author (or Editor):  Lessig, Lawrence

Title: CODE and Other Laws of Cyberspace

Fiction? Anthology?  

Publisher:  Basic Books

Date: 1999

ISBN:  ISBN 0-465-03912-X

Series Name:

Physical description: hardbound   297 pages, inc. index

Relevance to doaskdotell: 

Lessig talks about the idea that Code is Law, YouTube, Sydney, 2015.

Lessig is a Professor at Harvard Law School and a Fellow of the Berkman Center for Internet and Society, The first Chapter Title for Lessig's opus summarizes his argument: "Code is Law."

That is to say, while the Internet and cyberspace have the reputation of having become a new "Wild Wild West" (in the spirit of the goofy 1999 film), in fact the architectures and code of cyberspace may, given the way we have tied our personal and corporate expressions to it, impose a regulation of customary "law" upon us every bit as controversial as the world of positive and common law (or, for that matter, the "natural laws" of physics) in the physical world. 

For indeed, cyberspace gives up alternate "avatar spaces" (almost in the sense of a mathematical measure space or topological space) or "universes" to live in.  And these spaces give us inorganic ways to instantiate ourselves such that our dependence upon committed and not always chosen personal relationships indeed diminishes (as with the introverted character played by Sandra Bullock in the 1995 techno-thriller The Net!).  We transcend ourselves with virtual realities: remember the 1979 Disney film Tron ("users are what our programs are for!"). Indeed, I'm reminded of an essential paradox of my own homosexuality: feeling "turned on" by the part-objects and symbols of the physical world, as if they could copy themselves into the new imaginary dominions of cyberspace or any other future alien worlds. 

For example, AOL (Americ OnLine) provides an architecture in which one may have up to five different identities (ScreenNames) -- and now that up to 7. But Aol provides a matrix which regulates the way any of these "multiple personalities" may express themselves (indeed, the notorious "Terms of Service").  This experience may have been more regulated in the days (the early and mid 1990's) before the World Wide Web was so pervasive, when it depended more on its own proprietary content. 

Then, Lessig writes "'Libertarian'" … associates with arguments against government. Government in the modern libertarian's view, is the threat to liberty; private action is not."  (Indeed, Gays and Lesbians for Individual Liberty supports the Boy Scouts in  Dale v. BSA!)  But, in the view of John Stuart Mill, "liberty… was threatened as much by norms as by government, as much by stigma and intolerance as by the threat of state punishment."  And then, "my argument is that cyberspace teaches a new threat to liberty… We care coming to understand a powerful new regulator in cyberspace, and we don't yet understand how best to control it."  The "obvious" threat is monitoring people's use of the Net, with cookies or with perhaps government planted "worms."  (And employers or lenders might be tempted to screen potential "clients" for their own personal Internet sites, surfing and chat habits, although this can be met by using fictitious screen names and would not work with names like "John Smith.")  But indeed, the cyberworld gives people a chance to shoot themselves in the foot.  Transmit one "terroristic threat" in a chat room, thinking you are joking, and the FBI may haul you out of bed at 5 AM.  You may never be allowed to get on the Net again or have a decent job again.  Of course, we all know this problem from airports already.  Or, perhaps, a hacker transmits child pornography under your "name" and technology breaks down in maintaining a reasonable doubt or your innocence.

On one level, the question becomes, does law need to change because of Cyberspace?  Will the principles of the First Amendment stand up reliably on their own?  My own friends in the legal-libertarian community seem to feel it should, but I can pose many more questions of my own here, as I have elsewhere on this site.

Government, in fact, could have many superficial opportunities to regulate the Internet, as with licensing, sales taxes, credentialing. Lessig points this out on page 50.  And government has tried to respond to the pervasiveness of the Internet in a manner roughly like what it faced fifty years ago with television (and not a whole lot better than when Europeans faced the printing press and in fact when the Chinese had around 1100 AD).  We can justify a lot of rules in the name of "protecting children."  First there was the Communications Decency Act (CDA) of 1996, which, Lessig writes, "a law of extraordinary stupidity, it practically impaled itself upon the First Amendment."  The 1998 Child Online Protection Act (COPA) is still "constitutionally troubled."  "The burden is placed on both the adult site and the adult who wants adult speech."  Different adult ID systems "both effect zoning but at different costs." Adult speech may (constitutionally??) be zoned only with a solution "that imposes the least cost on free speech interests.

Another broad area of argument is intellectual property law, and Lessig does not take this as far as he could.  He does elaborate on copyright law, and the importance of the "fair use" doctrine which he maintains to help authors collectively but not always individually. (Actually, "fair use" does not determine that one may review a book without permission; the actual coverage of the copyright law does.)  He does not seem to pay much heed to workplace issues, where employees are first shocked to learn that employers have the legal right to snoop on their use of workplace computers, and even in some cases their computers at home (as when there is suspicion of illegal strikes or sickouts with Northwest Airlines or of misusing trade secrets).  And it gets more complicated when the worker telecommutes, uses his own computer for "work work" or when the employer provides his computer at home, or when the employee uses a free Internet email (like hotmail) displaying it at work but by logging in to another company's server.   

And, here, I want to go on and suggest that the issues posed by the Net are subtle, a blend of layers of law and ethics that we constantly uncover like the levels of the Jovian atmosphere.  Remember, the Internet has made the world one big database (hence the concept of "open systems").  An individual with an idea can promote himself, unsupervised, on the Internet with completely untested business paradigms, all of which may have legal consequences.  The most obvious example of a "problem" is familiar to investors: how much should a stock (say, of any IPO) for a company that won't make a profit for a few years?  But the deeper problem has to do with the relationships between individuals, small entities and larger more trusted companies and organizations.  For example, an individual can set up a web server and hosting service; but if he is not up to speed and leaves his machine open to hackers, he could become a liability to larger organizations "victimized" when his machine is used as a zombie in a DDOS "Distributed Denial of Service" attack. (Regular password protection is not enough to defend, say, against "buffer overflow" attacks, so a web operator or even a DSL-connected home user should have a firewall, too, just like a "big company.")  Or here's another problem: an individual picks up a .com name, only to be sued for trademark infringement in a few years by an entity holding that name as a mark but which had failed to set up a .com name itself.  Larger organizations have formed the World Wide Web Consortium (W3C) to develop new software standards and have specifically excluded individuals from belonging (see Joe Rudixh, “Private Standards for the Public Web,” Computer User, March 2000).

Or what about my own paradigm for doaskdotell.com?  I don’t make a living at it; I still work in a salaried capacity. I do it to build "publicity rights," a national reputation which I hope to convert into financial gain later. So I may myself look on the Net (and in bookseller's catalogs) like a "real company" even though I have no employees and little overhead.  My audience ("SQL count" of people familiar with my writings) is now very comparable to those of much better known and established authors, as I can tell from server logs. With a little thought, one can see how some people could object.  (May one rightfully work for someone else and still claim his "publicity rights" which in some sense "pervasively" encroach upon the privacy of all other entities associated with the speaker? People used to quit work and live off their savings in order to "write" and, by the way, you don't send books to publishers!  And a quick "relationship" between James Lear, played by Tobey Maguire, and a book publisher editor [not the professor played by Michael Douglas] in Wonder Boys (2000, Paramount) gives one an idea of how some people 'get published.')  I must interpret and build upon the stories of others, avoid appearance of conflict of interest at work (the idea that private information could be misappropriated or that there is a "hidden" tip in my postings; there isn't!) and maintain quality control (the typos in that first book are a problem!) 

But, do it I must, for I find that most sensitive political and psychological issues (especially their "junction") don't get covered very well by conventional means.  Traditional trade book publishing, with its emphasis on editing, typesetting and manufacturing perfection so well documented in The Chicago Manual of Style, is still too expensive and sluggish to keep up with issues with the subtlety I want to see (on issues like gays in the military).  Political organizations, caucuses and pressure groups are simply too adversarial to present the public a balanced perspective.  Even the best of these water down their material to appeal to the "average person" on the basis of emotion rather than reason (and their leadership resents competition).  Individuals can be so much more nimble, in building and publishing intellectual contexts by which companies, organizations, and interest groups will be publicly perceived.  So I turn not to the courts or to the political process but to the Net and build my intellectual symphony, with bug conceptual pieces like movements, to fall back on themselves like the Schumann Second.

But, then again, the Net offers easy use of pseudonyms!  (Not uncommon in conventional publishing the past with new writers, like Bachman for Stephen King).  But, can a commentator be believed if he doesn't used his own name?  And, as Lessig points out, the Net could provide the structures and voluntary rating mechanisms to score the "credibility" of individual speakers when compared to larger, established organizations.

Anyone can set themselves up as a “.com,” mimicking a larger “legitimate” (??) business in front of a worldwide audience and creating the expectation of larger-business customer service levels.  We may find that the domain naming structure eventually does encourage new business practices in employment.  Companies (especially those selling consulting services and using resumes to "get business") may not be willing to allow employees (at least certain key exempt employees or officers) to run their own ".com" domains (or they might insist that these persons remain brokered independent contractors), and people might be expected to use subdomains (as AOL Hometown) or yet undeveloped individual domain designations to avoid confusion with "real companies."  The law may come to take a stronger look at potential “apparent conflicts” that may arise when certain kinds of key employees operate any businesses on their own at all.  

Indeed, the Internet (and recall that the National Science Foundation only turned this loose in 1992) offers curious paradoxes in the whole workplace paradigm.  Older mainframe operating systems were based upon the notion of separation of functions, batch processing, and procedural scheduling.  New open systems are based upon control by the customer, even at home; but they have created a curious new discipline in the workplace.  It is sometimes written in computer journals that older "grizzled" (Y2K COBOL) programmers have trouble learning the "sexy new languages," but that is more because the newer systems really are build from the grassroots by mostly younger people who like to tinker and to build computers for themselves, and yet must impose unheard of discipline in their code and work habits to make their code reusable, inheritable  (as in Java) and totally self-documenting.

In fact, the object-orientation system design techniques used by open systems (in languages like Java, PowerBuilder, SmallTalk, C++), provide a paradigm for understanding the controversies over emerging individualism.  A behavior (or an "object") may have no immediate harmful effects, until the context from which it inherits its properties is applied. The benefit of a particular behavior implies that some paradigm must have been applied at a higher level, which burdens other descendents. And so it goes.    

 So Law is on the start of it. 

The revised version of this book is “Code Version 2.0” (2006, Basic Books, ISBN 0-465-03914-6, 410 pages, paper). The book quickly takes up the idea that it is easier to identify visitors that one thinks, and proposes a simplified content labeling system (without PICS) as a solution to the “COPA Problem.

This is a good place to mention Thierer, Adam and Crews, Clyde Wayne, Jr. Editors. Copy Fights: The Future of Intellectual Property in the Information Age. Washington: Cato, 2002. Contributors: Tom Bell, James DeLong, John Perry Barlow, Tom G. Palmer, Rich Boucher, David Post, Jessica Litman, Drew Clark, Orin Kerr, Emery Simon, Mike Godwin, Mitch Glazier, Robin Gross, Stan Liebowitzm, Frank Hausmann, PeterWayner, Michael Nugent, Ron Laurie and Robert Beyers.  This impressive anthology tackles many facets of copyright and patent law in the digital age, with, of course, particular attention to the DMCA (Digital Millennium Copyright Act of 1998) which some columnists like Orin S. Kerr lukewarmly defend with thought experiments. One underlying controversy is that music content distributors are trying to circumvent the Fair Use doctrine by blocking all unauthorized copying, even though by definition Fair Use (which is legal by definition) occurs without permission. David G. Post provides a whimsical account of Sean Fanning’s Napster (“His Napster’s Voice”). The main legal point here is that a mechanism that facilitates copyright infringement may be illegal if the mechanism does not have substantial legal uses.

Jonathan Zittrain wrote a long article, “Without a Net: The Internet is vulnerable to viruses so lethal that they could gravely damage the online world—unless we upgrade law and technology now” in Legal Affairs, Jan-Feb. 2006. The main threat is a new destructive worm spreading catastrophically before anti-virus companies can catch it. Zittrain discusses the idea of licensing programmers and licensing the software that they create – an anathema to libertarians, except that this would be done by software vendors and distributors—which could expose contributors to business prejudices and to turf protection. An author whose software included a virus would lose his license. (Could this concept apply to general content creators like me?)  He discusses concepts like end-to-end neutrality, which places more responsibility on untrained endusers than is desirable, and encouraging ISPs to take more responsibility for quarantining zombies themselves, which they are often loath to do.

On March 16, 2006 the Associated Press had a story by Ted Bridis, “Computer Researchers Warn if Net Attacks,” in which a new kind of attack, a “distributed reflector denial of service attack” on name servers, and there was a major attack originating in South Africa at the end of 2005.

Sue Scheff and John W. Dozier. Google Bomb: The Untold Story of the $11.3M Verdict that Changed the Way We Use the Internet”. Deerfield, FL, Heath Communications, 2009, 248 pages, paper. ISBN 0-7573-1415-5. With Foreword by Michael Fertik (“Reputation Defender”).  A book about the Scheff v. Bock (2006, Florida), and its effect on anonymity on the Internet and the risks of libel even for amateur speakers. 

William Patry. Moral Panics and the Copyright Wars. London: Oxford University Press, 2009. ISBN 978-0-19-538564-9, hardbound, 266 pages.  Is copyright “ a tax on readers for the purpose of giving bounty to writers”? That’s how is was seen in Britain in the past. 

Richard Clarke: Cyber War: The Next Threat to National Security and What to Do About It. ECS/Harper, 2010. ISBN,  ISBN 978-0-06-196223-3, 290 pages, hardcover.