Larry Lessig is a gifted writer, and he does a good job of finding and telling stories that illustrate the points he’s trying to make. I found Free Culture extremely compelling for just this reason; he does a great job of illustrating a fairly subtle but pervasive problem by finding representative examples and weaving together a narrative about a broader problem. He demonstrates that copyright law has become so pervasive that peoples’ freedom is restricted in a thousand subtle ways by its over-broad application.
He takes a similar approach in Code, but the effort falls flat for me. Here, too, he gives a bunch of examples in which “code is law”: the owners of technological systems are able to exert fine-grained control over their users’ online activities. But the systems he describes to illustrate this principle have something important in common: they are proprietary platforms whose users have chosen to use them voluntarily. He talks about virtual reality, MOOs and MUDs, AOL, and various web-based fora. He does a good job of explaining that the different rules of these virtual spaces—their “architecture”—has a profound impact on their character. The rules governing an online space interact in complex ways with their participants to produce a wide variety of online spaces with distinct characters.
Lessig seems to want to generalize from these individual communities to the “community” of the Internet as a whole. He wants to say that if code is law on individual online communications platforms, then code must be law on the Internet in general. But this doesn’t follow at all. The online fora that Lessig describes are very different from the Internet in general. The Internet is a neutral, impersonal platform that supports a huge variety of different applications and content. The Internet as a whole is not a community in any meaningful sense. So it doesn’t make sense to generalize from individual online communities, which are often specifically organized to facilitate control, to the Internet in general which was designed with the explicit goal of decentralizing control to the endpoints.
Also, the cohesiveness and relative ease of control one finds on the Internet occurs precisely because users tend to use any given online service voluntarily. Users face pressures to abide by the generally-accepted rules of the community, and users who feel a given community’s rules aren’t a good fit will generally switch to a new one rather than make trouble. In other words, code is law in individual Internet communities precisely because there exists a broader Internet in which code is not law. When an ISP tries to control its users’ online activities, users are likely to react very differently. As we’ve seen in the case of the Comcast kerfuffle, users do not react in a docile fashion to ISPs that attempt to control their online behavior. And at best, such efforts produce only limited and short-term control.