Building on this week’s Cato Unbound online debate over the impact of Lawrence Lessig’s Code ten years after it’s release, Tim Lee has posted a terrific essay over at the Freedom to Tinker Blog “Sizing Up “Code” with 20/20 Hindsight.” Tim concludes:
It seems to me that the Internet is rather less malleable than Lessig imagined a decade ago. We would have gotten more or less the Internet we got regardless of what Congress or the FCC did over the last decade. And therefore, Lessig’s urgent call to action — his argument that we must act in 1999 to ensure that we have the kind of Internet we want in 2009 — was misguided. In general, it works pretty well to wait until new technologies emerge and then debate whether to regulate them after the fact, rather than trying to regulate preemptively to shape the kinds of technologies that are developed.
As I wrote a few months back, I think Jonathan Zittrain’s The Future of the Internet and How to Stop It makes the same kind of mistake Lessig made a decade ago: overestimating regulators’ ability to shape the evolution of new technologies and underestimating the robustness of open platforms. The evolution of technology is mostly shaped by engineering and economic constraints. Government policies can sometimes force new technologies underground, but regulators rarely have the kind of fine-grained control they would need to promote “generative” technologies over sterile ones, any more than they could have stopped the emergence of cookies or DPI if they’d made different policy choices a decade ago.
I agree whole-heartedly, of course, and this is the point I was trying to make in my in my first essay in the Cato debate when I argued:
Lessig’s lugubrious predictions proved largely unwarranted. Code has not become the great regulator of markets or enslaver of man; it has been a liberator of both. Indeed, the story of the past digital decade has been the exact opposite of the one Lessig envisioned in Code. Cyberspace has proven far more difficult to “control” or regulate than any of us ever imagined. More importantly, the volume and pace of technological innovation we have witnessed over the past decade has been nothing short of stunning.
Anyway, read Tim’s entire essay.
I’ve posted another response in the Cato Unbound online debate over the impact of Lawrence Lessig’s Code and Other Laws of Cyberspace upon the book’s 10th anniversary. You will recall that I went fairly hard on Prof. Lessig in my essay, “Code, Pessimism, and the Illusion of ‘Perfect Control,’” and Lessig responded with a counter-punch that went after me for it. I respond in a new essay about “Our Conflict of Cyber-Visions.” In the piece, I address Lessig’s assertion that I just didn’t understand the central teachings of Code, as well as his reluctance to accept the “cyber-collectivism” label that I affixed to his book and life’s work. Again, please hop over to Cato Unbound for my complete response.
But one thing from the essay that I thought worth reproducing here is my effort to better define the key principles that separate the cyber-libertarian and cyber-collectivist schools of thinking. I argue that it comes down to this:
The cyber-libertarian believes that “code failures” are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions. Moreover, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those response(s).
Of course, another key difference relates to how quickly one jumps to the conclusion that “code failures” are actually occurring at all. I argue:
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The week-long Cato Unbound online debate about the 10th anniversary of Lawrence Lessig’s Code and Other Laws of Cyberspace continues today with Prof. Lessig’s response to Declan McCullagh’s opening essay, “What Larry Didn’t Get,” Jonathan Zittrain’s follow-up essay, and my essay on, “Code, Pessimism, and the Illusion of ‘Perfect Control.’” Needless to say, Prof. Lessig isn’t too happy with my response. You should jump over to the Cato site to read the entire thing, but here are a couple of excerpts and my response.
To my suggestion that there is a qualitative difference between law and code, Prof. Lessig says:
I’ve argued that things aren’t quite a simple as some libertarians would suggest. That there’s not just bad law. There’s bad code. That we don’t need to worry just about Mussolini. We also need to worry about DRM or the code AT&T deploys to help the government spy upon users. That public threats to liberty can be complemented by private threats to liberty. And that the libertarian must be focused on both. […]
Of course, law is law. Who could be oblivious to that? And who would need a book to explain it? But the fact that “law is law” does not imply that it has a “much greater impact in shaping markets and human behavior.” Sometimes it does — especially when that “law” is delivered by a B1 bomber. But ask the RIAA whether it is law or code that is having a “greater impact in shaping markets” for music. Or ask the makers of Second Life whether the citizens of that space find themselves more constrained by the commercial code of their geo-jurisdiction or by the fact that the software code of Second Life doesn’t permit you simply to walk away (so to speak) with another person’s scepter. Whether and when law is more effective than code is an empirical matter — something to be studied, and considered, not dismissed by banalities spruced up with italics.
Well, I beg the professor’s pardon for excessive use of italics. [I won’t ask for an apology for misspelling my last name in his piece!] Regardless, it’s obvious that we’ll just never see eye-to-eye on the crucial distinction between law and code. Again, as I stated in my essay: “With code, escape is possible. Law, by contrast, tends to lock in and limit; spontaneous evolution is supplanted by the stagnation of top-down, one-size-fits-all regulatory schemes.”
Lessig largely dismisses much of this with that last line above, suggesting that we just need to keep studying the matter to determine the right mix of what works best. To be clear, while I’m all for studying the impact of law vs. code as “an empirical matter,” that in turn begs the question of how we define effectiveness or success. I suspect that the professor and I would have a “values clash” over some rather important first principles in that regard. This is, of course, a conflict of visions that we see throughout the history of philosophy; a conflict between those who put the individual and the individual’s rights at the core of any ethical political system versus those who would place the rights of “the community,” “the public” or some other amorphous grouping(s) at the center of everything. It’s a classic libertarian vs. communitarian / collectivist debate.
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