Code/Lessig: The issue here is how the architecture of the Net—or ist “code”—itself becomes a regulator. In this context, the rule applied to an individual does not find its force from the threat of consequences enforced by the law—fines, jail, or even shame.
A locked door is a physical constraint on the liberty of someone to enter some space.
[This kind of code] is not just written rules; it is not just custom; it is not just the supply and
demand of a knowing consuming public.What makes [e.g.] AOL is in large part the structure of the space.You enter AOL and you find it to be a certain universe. This space is constituted by its code. You can resist this code—you can resist how you find it, just as you can resist cold weather by putting on a sweater. But you are not going to change how it is.
By “open code” I mean code (both software and hardware) whose functionality is transparent at least to one knowledgeable about the technology. By “closed code”, I mean code (both software and hardware) whose functionality is opaque. One can guess what closed code is doing; and with enough opportunity to test, one might well reverse engineer it. But from the
technology itself, there is no reasonable way to discern what the functionality of the technology is.
I personally have very strong views about how code should be created. But whatever side you are on in the “free vs. proprietary software” debate in general, in at least the contexts
I will identify here, you should be able to agree with me first, that open code is a constraint on state power, and second, that in at least some cases, code must, in the relevant sense, be “open.”
The code is regulable only because the code writers can be controlled. […]An unmovable, and unmoving, target of regulation, then, is a good start toward regulability. And this statement has an interesting corollary: Regulable code is closed code.
To the extent that code is open code, the power of government is constrained.Government can demand,government can threaten, but when the target of its regulation is plastic, it cannot
rely on its target remaining as it wants. […] Books are open code: They hide nothing; they reveal their source—they are their source! A user or adopter of a book always has the choice to read only the
chapters she wants.
Closed code functions differently. With closed code, users cannot easily modify the control that the code comes packaged with.Hackers and very sophisticated programmers may be able to do so, but most users would not know which parts were required and which parts were not. Or more precisely, users would not be able to see the parts required and the parts not required because the source code does not come bundled with closed code.Closed code is the propagandist’s best strategy—not a separate chapter that the user can ignore, but a persistent and unrecognized influence that tilts the story in the direction the propagandist wants.
If the world becomes certificate-rich, regulability still increases. The same conclusion follows
if more code were burned into hardware rather than left to exist as software. Then, even if the code were open, it would not be modifiable. (1)
[…]something fundamental has changed: the role that code plays in the protection of intellectual property. Code can, and increasingly will, displace law as the primary defense of intellectual property in cyberspace. Private fences, not public law.
My vote in each context may seem to vary. With respect to intellectual property, I argue against code that tracks reading and in favor of code that guarantees a large space for an intellectual commons. In the context of privacy, I argue in favor of code that enables individual choice—both to encrypt and to express preferences about what personal data is collected by others. Code would enable that choice; law could inspire that code. In the context of free speech, however, I argue against code that would perfectly filter speech— it is too dangerous, I claim, to allow perfect choice there. Better choice, of course, is better, so code that would empower better systems of reputation is good, as is code that would widen the legitimate range of broadcasting.
The aim in all three contexts is to work against centralized structures of choice. In the context of filtering, however, the aim is to work against structures that are too individualized as well.
Jean CampVsLessig: Jean Camp, a Harvard computer scientist who taught in the Kennedy School of Government, said that I had missed the point. The problem, she said, is not that “code is law” or that “code regulates.
LessigVsVs: Of course, for the computer scientist code is law. And if code is law, then
obviously the question we should ask is:Who are the lawmakers?
But to a lawyer, both Camp and I, throughout this book, have made a very basic mistake. Code is not law, any more than the design of an airplane is law. (See Internet Law/Lessig).
Does this mean that we should push for open rather than closed code? Does it mean that we should ban closed code?
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 a competitive perspective, modularity permits greater competition in the development of improvements in a particular coding project.
The law prefers opaque to transparent code; it constructs incentives to hide code rather than to make its functionality obvious. […] Our law creates
an incentive to enclose as much of an intellectual commons as possible. It works against publicity and transparency, and helps to produce, in effect, a massive secret government. […] But the inertia of existing law—which gives software manufacturers effectively unlimited terms of protection—works against change. The politics are just not there.
1. I am grateful to Hal Abelson for this point._____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
Code: Version 2.0 New York 2006ff