Introduction
Guru to some, populist to others, one thing is certain: Lawrence Lessig‚s legal thinking has achieved wide attention on both sides of the Atlantic. Five years after its publication, the heart of his first book Code and Other Laws of Cyberspace (Lessig 1999) functioned as the basis for a workshop in Amsterdam on 1 and 2 July: Code as Code.

Organised by the Institute for Information Law, in cooperation with Tilburg University, the workshop derived its name from the core statement of Lessig‚s book: „Code is law.“ (Lessig 1999, p.6). That is, code as in technical code is the true regulator of behaviour in the digital environment, not traditional law. It is the notion, or hype, that software and hardware impose a set of normative rules. Lessig popularised this notion, but Joel Reidenberg already referred to the set of rules as Lex Informatica in a 1998 essay of the same name. More precisely Reidenberg speaks of „the set of rules for information flows imposed by technology and communication networks“ (Reidenberg 1998, p. 554). Examples of regulation through technical code are the online filtering of content, the use of cryptography to prevent unauthorized access to data, and the copy protection on CDs in the form of Digital Rights Management Systems (DRMS).

Workshop debate
A select group of international experts discussed if code can be considered law, and how code is used in different fields of law: freedom of expression, privacy and intellectual property law. Several papers on these subjects served as a basis for the discussion. They will be published at the beginning of next year in the international Information Technology & Law Series. In his keynote speech Reidenberg noted that the papers showed a deep scepticism of technology as a legitimate means of rule making, specifically of code as a substitute for law. He stated that he shared this scepticism and that „Lex Informatica is inherently unfair and the state has to intervene.“

The papers proved to be fertile ground for an often abstract, though high-level interaction between the participants. An introductory paper and related presentation provided a list of criteria to test if code can indeed be considered law. These criteria were derived from legal theorist Lon Fuller‚s criteria for law and projected on Lessig‚s „Code is law“ metaphor. Key criteria were: transparency, legitimacy, accountability and consumer choice towards the use and working of technical code. Overall regulation through code was thought not to adhere to these criteria for law, and to have a negative impact on the discussed fields of freedom of expression, privacy and intellectual property.

On the last day of the workshop no concrete conclusions were reached. However, in an unofficial and somewhat playful final declaration it was stated that „code is not law“, and that the „Code is law“ metaphor is dead – a statement that Reidenberg however thought to be too strong. In his opinion the participants had agreed on the illegitimacy of code as a substitute for law in establishing behavioural control rules.

Code as code as consumer concern
It is this very illegitimacy, due to a lack of the aforementioned criteria for law, which makes the „code as code“ phenomenon important from a consumer‚s perspective. The transparency of the implementation of technical code solutions and the related accountability of the users of these solutions are primary consumer interests. For example, it is in the interest of a consumer that he can hold a record company accountable if it has not sufficiently informed him through labeling that the used DRMS may prevent him from playing a purchased CD on all his devices. This has already been the subject of litigation in both Belgium and France (Tribunal 2003).

Bottom line
When technical code replaces legal code, when „code is law“, rules are enforced automatically and in an absolute fashion, and consumers may loose traditionally enjoyed legal protections. Consequently, also consumer oriented organisations and projects may look out for the Code as Code papers, providing a general, meta-view of the subject matter to which DRMS belong.

Sources


About the author: Rik Lambers is a project researcher at the Institute for Information Law, University of Amsterdam. He specialises in Internet regulation, freedom of expression and intellectual property law. He wrote the paper on Code and freedom of expression for the Code as Code workshop.Contact: + 31 20 525 3324, lambers@ivir.nl.

Status: first published in INDICARE Monitor Vol. 1, No 3, 27 August 2004; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=35