Since its publication in December, 1999, Lawrence Lessig's Code and Other Laws of Cyberspace has been creating a stir among people who contemplate the state of the net and consider the forces shaping its future. Code has been widely reviewed, and Lessig has been interviewed, commented upon, debated with, and made appearances in a number of online and offline venues, including the Wall Street Journal, Slate, Slashdot, the New York Times, and Wired. Oh yes, he was also quite famously appointed special master in the government's antitrust suit against Microsoft, much to Microsoft's dismay, and he has been an active participant in a number of key Internet issues, such as broad-band access and copyright law.
Lessig is, in short, what Bruce Sterling calls a "heavy dude," and Code is, in that same sense, a heavy book. It is also a lawyer's book in the very best sense: in it, Lessig argues both law and facts and does not pound his shoe on the table, and he displays impressive legal and historical knowledge of the controversies he entertains and clearly displays his conclusions. More than that, Code was obviously written by a veteran of the net and thus does not stumble over the intricacies of online life.
The book's central and most controversial conclusion is that cyberspace can be regulated:
"In real space we recognize how laws regulate....In cyberspace we must understand how code regulates—how the software and hardware that make cyberspace what it is regulate cyberspace as it is."
Put that way, it seems a harmless enough conclusion, but it is a weighty and frightening one, enough so that words such as "troubling" and "dark" have been applied to the book. We can see why if we go a little farther: "This code presents the greatest threat to liberal or libertarian ideals, as well as their greatest promise." In short, Lessig contradicts a central shibboleth of life in cyberspace, that it is inherently free.
Well, okay. From the beginnings of the net and the web, many of us have acknowledged the constraints of code. Those constraints have traditionally driven innovation (such as the web itself) and in many ways have seemed a motor constantly driving the creation of new and interesting things. We have counted on the skills and generosity of hardware and software innovators to maintain the freedoms of the net, always with the assumption that code would be king.
But norms? Well, the net has its own, but they aren't those of real space, which are, so to speak, for normals, not us. Laws? Hah—in cyberspace, they have little force. The net routes around censorship, finesses jurisdictions. Market forces? They're annoying, even worrisome, to be sure, but remember, information wants to be free, and also remember, code rules.
But there is this worrisome fact: cyberspace was made and so can be remade, and there's nothing to guarantee that the remaking will preserve the particular values that have governed cyberspace thus far—openness and freedom chief among them.
Fundamentally, Code is a book about constraints, the checks and bounds—from gravity to common courtesy—that shape our behavior. In the diagram to your left, taken from the book, you see us—you and me, as citizen and consumer—in the middle, in the process of acting or deciding to act, constrained by forces that determine what is possible, what is lawful, what is acceptable, what is economically viable—all this and more.
He uses a fourfold structure of constraint. Here are some examples:
Each of these forces acts upon the others, and in particular situations, one force may predominate. If your ISP shuts off your account because you didn't pay your monthly bill, you're obviously feeling economic constraints; if you are removed from a mailing list by the moderator for rude and irreverent postings, norms govern; if a court orders your ISP (or you) to produce certain files, the law is fairly obviously in charge; if you encrypt the files in question and send them to an online data warehouse, code is king.
However, in every case all the forces are present, constraining our behavior. Where code and architecture once ruled, now law, norms, and economics are exerting their forces.
Lessig agreed with me that one might write a history of the net as the dynamic evolution of these forces, an evolution where the forces of law, market, and norms, once unimportant in comparison to code, are exerting forces that threaten to dominate.
As if to confirm Lessig's notions in this regard, the first months of the year 2000 have seen net regulation take front stage. As we have reported day after day on PrivacyPlace, commercial sites have been stalled and compromised, credit card data stolen; government websites have been hacked. Meanwhile, major net players (RealNetworks and DoubleClick, for instance) have committed egregious violations of privacy, and issues such as identity and anonymity continue to surface repeatedly, along with that old standard, encryption. Thus right now the US Congress, the FBI, the Department of Justice, and a host of other federal and state agencies are trying to figure out exactly how to regulate cyberspace, and powerful commercial entities are trying to make the net a place where they can control and monitor content.
So they—those agencies named above, and more—are meeting, studying, holding hearings, soliciting public comments, proposing standards, committees, posts, and laws, and they're talking about network security, usually in alarmed and alarmist tones, about privacy and the lax ways of advertisers and medical sites, about the dangers of anonymity and pseudonymity—about the future of the net.
From the point of view of the law and the market, cyberspace is simply too damned dodgy and unpredictable; from the point of view of many local systems of mores, the net is a breeding ground for disgusting vices. Governments want to govern, enterprises want to conduct business; moral communities want to make boundaries. By its nature, the net has interfered with all these activities. Hence, they say, Something Must Be Done.
And Lessig has come to tell us that something can, alas, be done. Cyberspace is regulable, not as we have fondly thought, inherently free. Further, as forces other than code exert more severe pressures, it is unavoidable that change will occur.At this point, all this may seem a bit abstract. Let me bring it down to ... well, I suppose not earth, since we're talking about the net ... down to brass tacks, then, or the place where the rubber meets the road, the res.
Copyright has generated lots of action lately on the web and in the news. There's MP3, and there's the Napster thing, which is driving the recording industry bonkers and seems likely to establish a legal precedent, for better or for ill..
There's also the (probably) less well-known case of the Canadian site, iCraveTV.com, which was webcasting—or rebroadcasting on the web—Canadian and American television content, which is perfectly legal in Canada, though not in the US. It was doing so that is, until the Motion Picture Association of America (MPAA), with the despicable Jack Valenti singing lead, put a stop to it.
The MPAA press release announcing victory says:
Representatives of the U.S. motion picture, television and professional sports industries, alongside Canadian broadcasters and producers, announced today that iCraveTV has agreed to an out-of-court settlement that shuts down the iCrave Internet site. The settlement states that the named defendants will never again engage in the illegal streaming of television signals into the U.S. via the Internet.
The settlement comes after a U.S. District Judge in Pittsburgh issued a preliminary injunction order on February 8,2000 against iCraveTV and the individuals behind the Internet operation including William R. Craig, William R. Craig Consulting, George Simons and TVRadio Now Corp, ordering the web site to stop its unauthorized transmission of broadcast signals into the U.S. via the Internet - a direct violation of U.S. copyright law.
Jack Valenti, President and Chief Executive Officer of the Motion Picture Association of America heralded today's settlement as a victory for intellectual property protection on the Internet. "The resolution of this matter will serve as a deterrent to anyone who seeks to take that which they do not own. Legitimate consumers, creative artists and copyright holders everywhere should join us in celebrating today's settlement. We remain committed to using every resource at our disposal to defend our intellectual property."
Celebrate? Well, I'm a legitimate consumer, creative artist, and copyright holder, and I'm not celebrating. Explaining why will take a little doing.
Let me ask the rhetorical question, who's against protecting intellectual property? Well, it all depends on what you mean by that.
As Lessig points out in Code, the point of intellectual property law has always been to assure that such property gets distributed, not to allow heirs and estates to squat on intellectual property and own it into perpetuity—the name "Disney" somehow springs to mind here. Thus the US Constitution gives Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". Lessig says, in commenting on this passage:
Note the special structure of this clause. First, it sets forth the precise reason for the power—to promote the progress of science and useful arts. It is for those reasons, and those reasons only, that Congress may grant an exclusive right—otherwise known as a monopoly. And, second, note the sopecial temporality of this right: "for limited Times". The Constitution does not allow Congress to grant authors and inventors permanent exclusive rights to their writings and discoveries, only limited rights. It does not give Congress the power to give them "property" in their writings and discoveries, only an exclusive right over them for a limited time.
Further, authors and inventors must exercise their property rights within the limits of a concept known as "fair use," defined by Lessig as "the right to use copyrighted material, regardless of the wishes of the owner of that material....under the right of fair use, you can criticize this book, cut sections from it, and reproduce them in an article attacking me."
In summary, Lessig says,
Taken together, these rules give the creator significant control over the use of what he produces, but never perfect control. They give the public some access, but not complete access. They are balanced by design, and different from the balance the law strikes for ordinary property. They are constitutionally structured to help build an intellectual and cultural commons.
But the MPAA wants more than that; it doesn't want balance, it wants control. And if this means wrenching the entire fabric of the web, too bad. For instance, Canadian law makes one set of assumptions about copyright, US law another, so iCraveTV's venture was legal in Canada, not in the US. The thing that exercised the MPAA and Valenti was that there was no effective way of stopping anyone from pretending to be from some non-US venue and thus being able to watch TV over the web. Imagine, Americans watching TV without being tracked by the MPAA. Horrors, eh?
So the MPAA brought out the big legal guns, and iCrave backed down. In itself this is too bad—really too bad—because we'd love to have seen iCrave stand up for their rights under Canadian law; also for the right to tell MPAA that it wasn't iCrave's problem that US citizens accessed the Canadian web; also that US courts had no jurisdiction over a Candian site. At least those rights. But iCrave didn't. It folded its cards and said, in effect, we'll be back.
And a bit later iCrave's president, William Craig, showed up and now said—and this is where it gets really interesting; this is where a whole host of our freedoms is at stake—that iCrave is developing software that can pinpoint the geographical location of anyone who comes to the site—which means it can refuse to serve those who come from a jurisdiction, such as the US, where providing their services is illegal.
If iCrave in fact develops and deploys this software, the legal and technical precedents would set be horrendous. According to Lessig himself, who wrote an Industry Standard column on this matter:
The battle over iCraveTV is just one in a series that together will define the future of the Internet. In every context that it can, the entertainment industry is trying to force the Internet into its own business model—the perfect control of content.
Denise Caruso also took up the issue in a New York Times article:
Many people are likely to object strongly to Craig's balkanized Internet. Privacy and free speech issues aside, they might say ... that such a system would devolve the Internet into a model very much like the restricted, centralized control of cable television.
Notice the interplay of forces here.
In the iCrave/MPAA affair, code works ultimately at the behest of market and law to rewrite the web, to restructure the possibilities of the web in order to control delivery of content, to destroy the worldwide intellectual and cultural commons.
At the center of these forces, as Lessig make clear is us. If the MPAA (and other such agencies representing draconian intellectual property regimes) has its way, our "fair use" of the web will be constrained if not eliminated. In the process, our privacy will necessarily be diminished; otherwise, how can they track who is using what?
We begin with the simple idea of refusing to serve web users from particular jurisdictions. We may end with a closed web, where the interests with money and power and influence—such as the MPAA—can force web use into their mold.
"A heavy book" A disclaimer: after having
Code recommended to me by others, I discovered that, quite coincidentally,
Lessig cited speeches by me and Vernor Vinge as inspiration for Code (they
can be found in audio format here,
along with others by Pat Cadigan and Bruce Sterling from the Computers, Freedom
and Privacy '96 Conference). Perhaps my head has been turned by Lessig's modest
praise; I don't think so, but I'll leave it to the reader to decide that.
return to story
"Lessig says" I first thought I was going to interview Lawrence Lessig, but as I became more deeply involved with the ideas in Code and worked through my own points of contention, the idea of an interview simply faded. What naturally replaced it was a conversation, parts of which I've woven into this essay.
"Here are some examples" These examples concern cyberspace, but these forces also apply offline. I have given a drastically incomplete view of Lessig's ideas in this regard, but they are developed at length in the book and given special treatment in its appendix.
This work is licensed under a Creative
Commons License.