Code is Murphy's law

Abstract

Cyberspace as a metaphor for a community has inspired many academics and others to produce further interesting ideas. However, with a metaphor as a starting point a lot of luck is needed in order to end up with a proper analysis. With Lessig's code the problem seems to be that cyberspace as a community is not the only metaphor presented. So is ‘code is law’. Code, that is the Internet's architecture, software and protocols, is not law. Code is technology, while legal rules are generally only ‘low tech’ at best. However, this does not mean that technology would be more effective in controlling people's behaviour than the legal system is. Instead of mixing the two up, it seems better to make a clear distinction between code and law. In this paper the authors' position with respect to the conflicting ideas of ‘the Internet as a place for anarchy’ versus ‘the Internet as a means of total control’ will first be explained. Then a common way of dealing with the questions raised by Lessig and others, namely the metaphor, will be examined. Implicit or explicit models of man play an important role in these discussions and attention will be paid to some of those and the rational model of man in particular. On the basis of this, a new model for analysing questions of law, society and technology is put forward. Based on the model, the authors will then address some of the issues at hand. The conclusion is that Lessig's and others' concerns will probably disappear when information technology is further assimilated in society.

Notes

1. For example, John Perry Barlow proclaimed that ‘everything you know about intellectual property is wrong’, J P Barlow, The economy of ideas – a framework for patents and copyrights in de digital age, Wired 1994, 2.03.

2. Lawrence Lessig, Code and Other Laws of Cyberspace, Basic Books, New York, pp 235–239, 1999.

3. For example, Mikhail Bakunin and George Orwell.

4. H O Kerkmeester, Recht en Speltheorie (Law and Game Theory, with an abstract in English) (diss.), Vermande, Lelystad, 1989.

5. Richard De Mulder, The digital revolution: from trias to tetras politica, in I Th M Snellen and W B H J Van de Donk (eds), Public Administration in an Information Age. A Handbook, IOS Press, Amsterdam, pp 47–56, 1998.

6. Francis Fukuyama claimed that the liberal democratic state may constitute the ‘end point of mankind's ideological evolution’ and the ‘final form of human government’ and, as such, constituted the ‘end of history’. Francis Fukuyama, The End of History and the Last Man, Penguin, 1992.

7. Karl Popper, The Open Society and its Enemies – Volume 1 – The Spell of Plato, 5th edn, 1966 and Pieter Kleve, Juridische Iconen in het Informatietijdperk (Legal Icons in the Information Age, with an abstract in English) (diss. Rotterdam), Sanders/Kluwer, pp 2–3, 2004.

8. Murphy's law: ‘if anything can go wrong, it will’, cf. http://www.edwards.af.mil/history/docs_html/tidbits/murphy's_law.html

9. ‘Netiquette’ seemed to be referred to a lot in the anarchist Internet times.

10. Egbert Dommering, Copyright being washed away through the electronic sieve. Some thoughts on the impending copyright crisis, in P B Hugenholtz (ed.), The Future of Copyright in a Digital Environment, Proceedings of the Royal Academy Colloquium organized by the Royal Netherlands Academy of Sciences (KNAW) and the Institute for Information Law, Amsterdam, 6–7 July 1995, Kluwer Law International, Den Haag, pp 1–11, 1996.

11. Cf Dan Hunter, Cyberspace as place, and the tragedy of the digital anticommons, California Law Review Vol 91, 2003, Mark A Lemley, Place and Cyberspace, Social Science Research Network, http://ssm.com/abstract_id = 349760 and Michael J Madison, Rights of access and the shape of the Internet, Boston College Law Review, 2003.

12. Michael C Jensen and William H Meckling, The nature of man, Journal of Applied Corporate Finance, Vol 2, pp 4–19, 1994.

13. Cf. A H Maslow, A theory of human motivation, Psychological Review, Vol 50, pp 370–396, 1943.

14. See Jensen and Meckling above.

15. In modern law and economics the general idea is that of maximization of utility, which makes their ‘homo economicus’ rather similar to the REMM. See for example R Cooter and T Ulen, Law and Economics, Addison-Wesley, Reading, MA, p 10, 1997 and R A Posner, Economic Analysis of Law, Little, Brown, Boston, 1998.

16. Cf. Daniël Kaheman and Vernon Smith, Noble prize winners 2002.

17. For example, an employee who resigns under the influence of severe job stress.

18. Michael C Jensen, Foundations of Organizational Strategy: Preface and Introduction, Harvard University Press, pp 1–7, 1998, Social Science Research Network, http://papers.ssrn.com/sol3/paper.taf?abstract_id = 244154

19. Michael C Jensen and William H Meckling, The Nature of man, Journal of Applied Corporate Finance Vol 2, p 6, 1994.

20. Lawrence Lessig, Code and Other Laws of Cberspace, Basic Books, New York, pp 235–239, 1999.

21. For example, making a back-up copy from a copy-protected disc.

22. Pieter Kleve, Juridische Iconen in het Informatietijdperk (Legal Icons in the Information Age) (diss. Rotterdam), Sanders/Kluwer, pp 22 and 359, 2004.

23. R V De Mulder, Een Model voor Juridische Informatica (A Model for Legal Informatics, with an abstract in English) (diss.), Vermande, Lelystad, p 95, 1984.

24. R V De Mulder, Een Model voor Juridische Informatica (A Model for Legal Informatics, with an abstract in English) (diss.), Vermande, Lelystad, p 23, 1984.

25. For example, spam filters, anti-spy software, cookies managers, cryptography of anonymous remailers and other help such as black lists and white lists or dummy email accounts.

26. For example, cases initiated by the Recording Industry Association of America against illegal uploaders.

27. For example, in the past many malicious domain name registrations could take place without countermeasures by the legitimate name holders.

28. Although irrational behaviour with respect to IT can very well be rational to the manager involved, i.e. to give stockholders the impression that one is dealing with illegal copying.

29. Murphy's law: ‘if anything can go wrong, it will, cf. http://www.edwards.af.mil/history/docs_html/tidbits/murphy's_law.html