Spam/Lessig: The idea that code alone could fix the problem of spam is silly—code can always be coded around, and, unless the circumventers are not otherwise incentivized, they
will code around it. The law is a tool to change incentives, and it should be a tool used here as well. Most think the law can’t play a role here because they think spammers will be better at evading the law than they are at evading spamfilters. But this thinking ignores one important fact about spam. “Spam” is not a virus.
The only purpose of the regulation should be to block nonconsensual communication, and enable consensual communication.
The second code-based technique for blocking spam focuses upon the email practices of the sender—meaning not the person sending the e-mail, but the “server” that is forwarding the message to the recipient.
Why is spam so difficult to manage? The simple reason is that it comes unlabeled. There’s no simple way to know that the email you’ve received is spam without opening the e-mail.
Senders could begin to pay recipients for receiving e-mails. As some have proposed, the e-mail could come with an attachment worth a penny, or something more. Recipients could select to block all ADVs except those carrying cash. The key to each of these modified results is that the recipient is now
receiving commercial e-mail by choice, not by trick.
If the target of regulation is in it for themoney, then you can control his behavior by changing his incentives. If ignoring a regulation costs more than obeying it, then spammers (on balance) will obey it. Obeying it may mean changing spamming behavior, or it may mean getting a different job. Either way, change the economic incentives, and you change spamming behavior. So how can you change the incentives of spammers through law?
[…] If law as applied by the government is not likely to change the incentives of spammers, we should find law that is applied in a way that spammers would fear. One such innovation would be a well-regulated bounty system.
The cost of “piracy” is significantly less than the cost of spam. Indeed, the total cost of spam—adding consumers to corporations—exceeds the total annual revenues of the recording industry.(1) So how does this difference in harm calibrate with what Congress has done to respond to each of these two problems?
1. David Blackburn, “On-line Piracy and Recorded Music Sales” (Harvard University, Job
Market Paper, 2004), available at link #119.
_____________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