Review by Russell McOrmond2
This work is published on September 27, 2004 and licensed under a Creative Commons Attribution-ShareAlike License.
While CODE is the first book that Lawrence Lessig wrote, I read it after reading The Future of Ideas3 and free culture4. I bought CODE on a Thursday evening, and am writing this review the next Monday which indicates my inability to put the book down. While written in 1999 it explains why I diverted my attention in the summer of 2001 from reading/writing/improving computer software code and have spent much of my time reading and suggesting improvements to legal code.
Before I read the book I had an understanding of the main thesis: that software code, the rules that a computer obeys, is a form of law. As more and more of our lives are intermediated by computers and thus software code, we have some fundamental questions to ask. What type of regulation is this code? Who are the architects and authors of these code? Is this code authored in a publicly accountable way such that those governed by it have a say in its construction, or is it authored privately to reflect private interests even when it affects the public? Is the creation of this code democratic, autocratic, or formulated in some other way?
As a review I will highlight parts of the book that caught my interest, sometimes confirming things I had already thought, and sometimes showing me a new way to think about a given idea.
Lawrence Lessig is a constitutionalist, and allowed me to better understand the nature of the importance of this policy to me.
I teach and write about constitutional law. I believe that the first thoughts about government and cyberspace are just as misguided as the first thoughts about government after communism. Liberty in cyberspace will not come from the absence of the state. Liberty there, as anywhere, will come from a state of a certain kind. We build a world where freedom can flourish not by removing from society any self-conscious control; we build a world where freedom can flourish by setting it in a place where a particular kind of self-conscious control survives. We build this liberty, that is, as our founders did, by setting society upon a certain constitution.
But by "constitution" I don't mean a legal text. ... I mean an architecture – not just a legal text but a way of life – that structures and constrains social and legal power, to the end of protecting fundamental values – principles and ideals that reach beyond the compromises of ordinary politics.5
The area of policy that caused me to get involved in technology law, the WIPO treaties and legal protection for Digital Rights Management (DRM), is best understood as a radical change in the constitution of the digital communications network that I grew up with6. While constitutional changes are not unheard of, the frustration with the changes being proposed is that one group (politicians) are acting as if there was nothing there and thus no change is being proposed, and another group (cyber libertarians) are acting as if this constitution is "the nature of the network" and thus not as changeable as it really is.
Mr. Lessig speaks to and about these two groups, indicating how we will continue to create poor public policy around this "space" if we continue to think the way we have in the past. He ask about whether the USA's constitutional protection against unreasonable search would apply to a cyberspace "worm"7. He writes about code being democratic or not8.
Chapter 7, "what things regulate", was also used in part of chapter 10 of free culture9. It speaks about how there are 4 different modes of regulation: laws, market, architecture and norms. Each of these different modes of regulation can protect or threaten liberty. While in real space there are limits to the manipulation by humans of architecture (we cannot change the laws of physics), these types of limits do not exist with human manipulation of cyberspace.
Sometimes one mode can influence another. It is quite possible for governments to set laws that manipulate architecture (for instance, Legal protection for DRM). In this case, however, this indirection can misdirect responsibility10. While a citizen may have the inability to exercise fair dealings rights to time-shift a television program using ones PVR (Personal Video Recorder) because the code within the PVR disallows it, that citizen will not know whether it is government policy or the private interests of the PVR manufacturer that created this limit. In order to allow this regulation to be democratic in some way there is a need for transparency.
One of the most exciting chapters to read was chapter 8, the limits in open code. My focus in public policy, long before I was involved in seeking to influence government policy, was in the promotion, distribution, creation and improvement of Free/Libre and Open Source Software. Lessig says very eloquently things which I have been saying: that open code is a check on power11, and that the laws (encoded in license agreements) of FLOSS work as a form of Freedom of Information Act12 for software.
There is also a very insightful comment comparing software and other "literary works". I will find this very helpful when discussing digital copyright policy with other authors13.
Books are open source software: they hide nothing; they reveal their source – they are the source! A user or adopter of a book always has the choice to read only the chapter she wants. If it is a book on electronics, then the reader can certainly choose not to read the chapter on Stalin. There is very little the state can do to modify the reader's power in this respect.14
In the chapter on Intellectual Property he asks whether in this time whether the question is not how to aid protection, but to ask whether protection is too much15. This is something I have also been saying. I believe that copyright and patents are to creators and inventors as water is to humans; too little and you dehydrate and die, too much and you drown and die. While many of the incumbent industrial associations are claiming we are dehydrating, I often feel that they are really in the business of trying to sell bottled water to the drowning.
Also familiar is the section on "private substitutes for public law"16 I have been trying to indicate to policy makers that DRM is not a protection of copyright, but a replacement of copyright where the policy is set by media and software monopolies rather than governments. There are also considerable costs to this private regulation, and possibly different policy priorities that a democracy would have. Lessig suggests that we may want to think of privacy as a form of intangible property right17, similar to how we treat copyright. If we are to do so, why should we be forced (by law, markets and digital code/architecture in a "trusted computing" or DRM world) to waive our privacy rights in order to participate in our culture? Should only one type of rights holder be given state protection?
I have very few complaints about this book. The first is that the book is very US centric, drawing many references and analogies to the constitution and law of the United States. Canada is a very different country, and it would be ideal if a book with the same theme as this one could be written for the Canadian situation.
The other complaint is not a complaint, but a different policy balance than he discussed in chapter 12. He mentions in chapter 13 that the point is not to push one viewpoint, but to ensure that people realize that there are choices to be made. In my case I put a much stronger emphasis on Open Code, and believe that citizens should have a choice not only of brands but methodologies (open, closed, or some hybrid) of code that is brought into their private home or businesses. In the past I have said this as, "Any 'hardware assist' for communications, whether it be eye-glasses, VCR's, or personal computers, must be under the control of the citizen and not a third party". This is not to suggest that all code must be open code, but just as we elect representatives to parliaments we should have the freedom to choose our representatives in the creation of this type of policy. I may not like the person or party someone else (even the majority) votes for, just as I may not like the software vendors people may "vote" for, but I still critically important to protect our collective freedom to choose.
An important aspect of protecting that freedom to vote is modularity. In the language of technology, this means vendor neutral open standards18.
The best code (from the perspective of constitutional values) is both modular and open. Modularity ensures that better components could be substituted for worse. And from the competitive perspective, modularity permits greater competition in the development and improvements in a particular coding project.
It is plausible, however, that particular bits of code could not be produced if it were produced as open coce, that closed code may sometimes be necessary for competitive survival. If so, then the compromise of a component system would permit something of the best of both worlds – come competitive advantage along with transparency of function.
I've argued for transparent code because of the constitutional values it embeds. I have not argued against code as a regulator or against regulation. But I have argued that we insist on transparency in regulation and that we push code structures to enhanced that transparency.19
2Russell McOrmond is a self-employed Open Systems/Standards/Software Internet Consultant. Http://flora.org/ (Accessed September 27, 2004). He not only believes that "code is law", but also that "law is code" and spends much of his time "hacking" this type of code.
Lessig, The Future of Ideas, ISBN: 0-375-72644-6
(Accessed September 27, 2004)
I posted a review at http://weblog.flora.ca/article.php3?story_id=280 (Accessed September 27, 2004)
6It would not be incorrect to say that I grew up in cyberspace given much of the maturing in my thinking happened during social interactions within this "space". In government submissions I have called myself a Cyber Citizen http://www.flora.ca/lawful-access2002.phtml (Accessed September 27, 2004)
7CODE, P17, 22 "Imagine a worm designed to do good (at least in the minds of some). Imagine that the code writer is the FBI and that the FBI is looking for a particular document belonging to the National Security Agency (NSA). Suppose that this document is classified and illegal to possess without the proper clearance. Imagine that the worm propagates itself on the Net, finding its way onto hard disk whenever it can; once on a computer's hard disk, it scans the entire disk."
8CODE, P73 . In this chapter he speaks about America Online (AOL) and Counsel Connect (CC), nothing that "Neither is a democracy".
9Free culture, starting on P121 of the hardcover edition
12CODE, P108 "As I argue more extensively later in the book, even if open code does not disable goverment's power to regulate completely, it certainly changes that power. On the margin, open code reduces the reward from burying regulation in the hidden spaces of code. It functions as a kind of Freedom of Information Act for network regulation. As with ordinaty law, open code requires that lawmaking be public, and thus that lawmakers be transparent."
15CODE, P127 "In such an age – in a time when the protections are being perfected – the real question for law is not, how can law aid in that protection but rather, is the protection too great?"
18It is important to differentiate open standards from so called "De facto standards" which are in fact market monopolies. For the purpose of accountability and modularity, market monopolies are what we need to be protected against. See also: WTO Technical Barriers To Trade, Annex 3: Code of Good Practice for the Preparation, Adoption and Application of Standards http://www.wto.org/english/docs_e/legal_e/legal_e.htm#tbt (Accessed Sept 27, 2004)