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Analyzing the Production of the Law of Cyberspace
Unformatted Document Text:  2 I. I NTRODUCTION Communications scholars have long recognized the power of code in affecting communication throughout society. 1 The term “code” refers to the architecture of communication technologies, which includes its hardware and software components. More recently, code has been considered as a form of law in cyberspace. 2 This has led to proposals to proactively use code as an alternative regulatory mechanism to law. For example, scholars have argued that societal concerns such as crime, 3 competition, 4 free speech, 5 privacy, 6 protection of intellectual property, 7 and revitalizing democratic discourse 8 can be addressed by code. However, these types of proposals require an understanding of how code is produced or developed. Such an understanding is not found in the current literature. This Article examines the development or production of code. We analyze the development of code within several different institutions including universities, firms, consortia, and the open source movement. Our analysis accounted for the varying structures of the each 1 Joshua Meyrowitz, Medium Theory, in C OMMUNICATION T HEORY T ODAY 51 (David Crowley & David Mitchell eds., 1995) (providing an excellent overview of medium theory in communications). 2 L AWRENCE L ESSIG , C ODE AND O THER L AWS OF C YBERSPACE 95 (1999); Joel R. Reidenberg, Lex Informatica: The Formulation of Information Policy Rules Through Technology, 76 T EX . L. R EV . 553 (1998); M. Ethan Katsh, Software Worlds and the First Amendment: Virtual Doorkeepers in Cyberspace, 1996 U. C HI . L EGAL F. 335. 3 Neal Kumar Katyal, Criminal Law in Cyberspace, 149 U. P A . L. R EV . 1003 (2001). 4 The open access movement is based upon the principle that the architecture can support competition as well as providing a platform to support innovative applications. Mark A. Lemley & Lawrence Lessig, The End of End-To-End: Preserving the Architecture of the Internet in the Broadband Era, 48 UCLA L. R EV . 925 (2001). 5 This Article discusses the use of architectural solutions for addressing the problem of minors viewing inappropriate content. A number of commentators have addressed this issue. Lawrence Lessig & Paul Resnick, Zoning Speech On The Internet: A Legal And Technical Model, 98 M ICH . L. R EV . 395 (1999); Jonathan Weinberg, Rating the Net, 19 H ASTINGS C OMM . & E NT . L.J. 453 (1997). See also David E. Sorkin, Technical and Legal Approaches to Unsolicited Electronic Mail, 35 U.S.F. L. R EV . 325 (2001) (discussing approaches to limit unsolicited bulk email); C ASS S UNSTEIN , R EPUBLIC . COM 182-89 (2001) (proposing the redesign of web sites to incorporate links of different viewpoints to provide exposure to differing viewpoints). 6 An example of an architectural solution for privacy is the Preferences for Privacy Project (P3P). See William McGeveran, Programmed Privacy Promises: P3P and Web Privacy Law, 76 N.Y.U. L. R EV . 1813 (arguing for P3P as a solution to privacy problems. 7 Dan L. Burk & Julie E. Cohen, Fair Use Infrastructure for Rights Management Systems, 15 H ARV . J.L. & T ECH 41 (2001) (providing an example of an architectural solution to allow fair use in digital based intellectual property). 8 See A NTHONY G. W ILHELM , D EMOCRACY IN THE D IGITAL A GE 44-47 (2000); Cathy Bryan et al., Electronic Democracy and the Civic Networking Movement in Context, in C YBERDEMOCRACY 1 (Roza Tsagarousianou et al. eds., 1998).

Authors: Shah, Rajiv. and Kesan, Jay.
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background image
2
I. I
NTRODUCTION
Communications scholars have long recognized the power of code in affecting
communication throughout society.
1
The term “code” refers to the architecture of
communication technologies, which includes its hardware and software components. More
recently, code has been considered as a form of law in cyberspace.
2
This has led to proposals to
proactively use code as an alternative regulatory mechanism to law. For example, scholars have
argued that societal concerns such as crime,
3
competition,
4
free speech,
5
privacy,
6
protection of
intellectual property,
7
and revitalizing democratic discourse
8
can be addressed by code.
However, these types of proposals require an understanding of how code is produced or
developed. Such an understanding is not found in the current literature.
This Article examines the development or production of code. We analyze the
development of code within several different institutions including universities, firms, consortia,
and the open source movement. Our analysis accounted for the varying structures of the each
1
Joshua Meyrowitz, Medium Theory, in C
OMMUNICATION
T
HEORY
T
ODAY
51 (David Crowley & David Mitchell
eds., 1995) (providing an excellent overview of medium theory in communications).
2
L
AWRENCE
L
ESSIG
, C
ODE AND
O
THER
L
AWS OF
C
YBERSPACE
95 (1999); Joel R. Reidenberg, Lex Informatica:
The Formulation of Information Policy Rules Through Technology, 76 T
EX
. L. R
EV
. 553 (1998); M. Ethan Katsh,
Software Worlds and the First Amendment: Virtual Doorkeepers in Cyberspace, 1996 U. C
HI
. L
EGAL
F. 335.
3
Neal Kumar Katyal, Criminal Law in Cyberspace, 149 U. P
A
. L. R
EV
. 1003 (2001).
4
The open access movement is based upon the principle that the architecture can support competition as well as
providing a platform to support innovative applications. Mark A. Lemley & Lawrence Lessig, The End of End-To-
End: Preserving the Architecture of the Internet in the Broadband Era
, 48 UCLA L. R
EV
. 925 (2001).
5
This Article discusses the use of architectural solutions for addressing the problem of minors viewing inappropriate
content. A number of commentators have addressed this issue. Lawrence Lessig & Paul Resnick, Zoning Speech
On The Internet: A Legal And Technical Model
, 98 M
ICH
. L. R
EV
. 395 (1999); Jonathan Weinberg, Rating the Net,
19 H
ASTINGS
C
OMM
. & E
NT
. L.J. 453 (1997). See also David E. Sorkin, Technical and Legal Approaches to
Unsolicited Electronic Mail, 35 U.S.F. L. R
EV
. 325 (2001) (discussing approaches to limit unsolicited bulk email);
C
ASS
S
UNSTEIN
, R
EPUBLIC
.
COM
182-89 (2001) (proposing the redesign of web sites to incorporate links of different
viewpoints to provide exposure to differing viewpoints).
6
An example of an architectural solution for privacy is the Preferences for Privacy Project (P3P). See William
McGeveran, Programmed Privacy Promises: P3P and Web Privacy Law, 76 N.Y.U. L. R
EV
. 1813 (arguing for P3P
as a solution to privacy problems.
7
Dan L. Burk & Julie E. Cohen, Fair Use Infrastructure for Rights Management Systems, 15 H
ARV
. J.L. & T
ECH
41
(2001) (providing an example of an architectural solution to allow fair use in digital based intellectual property).
8
See A
NTHONY
G. W
ILHELM
, D
EMOCRACY IN THE
D
IGITAL
A
GE
44-47 (2000); Cathy Bryan et al., Electronic
Democracy and the Civic Networking Movement in Context, in C
YBERDEMOCRACY
1 (Roza Tsagarousianou et al.
eds., 1998).


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