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Analyzing the Production of the Law of Cyberspace
Unformatted Document Text:  4 would not have built a network that allows people so much freedom in choosing content. Even less likely, would be the media conglomerate’s support of a network that allowed anyone to become a publisher. Instead, the media firms would have built networks premised on pushing content to consumers. 11 Thus, the institutional origins of code can have a lasting effect even after code is transferred to a different institution. This Article analyzes the development of code on an institutional basis. Institutions were chosen as the unit of analysis because they are responsible for creating the vast majority of code. Their significance has led other scholars studying code to use an institutional framework. 12 Four prominent institutions for the development of code are universities, firms, consortia, and the open source movement. Each of these institutions has different roles, motivations, end users, and structures. As a result, they are differentially affected by social, political, economic, and legal influences. This is then reflected in the attributes of the final code. These attributes include technical features, such as the use of open standards, as well as features that impinge upon societal concerns, such as intellectual property rights and privacy. In this Article we limit our discussion to the structure and influences upon the various societal institutions. 10 J OHN N AUGHTON , A B RIEF H ISTORY OF THE F UTURE : F ROM R ADIO D AYS TO I NTERNET Y EARS IN A L IFETIME 274 (2000). 11 See Eileen R. Meehan, Technical Capability Versus Corporate Imperatives: Toward a Political Economy of Cable Television and Information Diversity, in T HE P OLITICAL E CONOMY OF C OMMUNICATION 167 (Vincent Mosco ed., 1996) (highlighting interactive television’s bias towards commercialism). 12 See Walter W. Powell & Paul J. DiMaggio, Introduction, in T HE N EW I NSTITUTIONALISM IN O RGANIZATIONAL A NALYSIS 1 (Walter W. Powell & Paul J. DiMaggio eds. 1991) (providing a brief history of institutions). There are a number of other scholars who have discussed the relationship between code and institutions. See Phil Agre, The Architecture of Identity: Embedding Privacy in Market Institutions, I NFO . C OMM . & S OC ’ Y , Spring 1999, available at http://dlis.gseis.ucla.edu/people/pagre/architecture.html (insisting that we use an institutional approach to understand the role of code and society); Jane E. Fountain, Constructing the Information Society: Women, Information Technology, and Design, 22 T ECH . & S OC ' Y 45 (2001) (arguing the appropriate level of analysis is the institution in the development of code); Richard Hawkins, Standards for Communication Technologies: Negotiating Institutional Biases in Network Design, in C OMMUNICATIONS BY D ESIGN : T HE P OLITICS OF I NFORMATION AND C OMMUNICATION T ECHNOLOGIES 157 (Robin Mansell & Roger Silverstone eds., 1996); S USANNE K. S CHMIDT & R AYMUND W ERLE , C OORDINATING T ECHNOLOGY : S TUDIES IN THE I NTERNATIONAL S TANDARDIZATION OF T ELECOMMUNICATIONS (1998) (using an approach titled Actor-centered Institutionalism).

Authors: Shah, Rajiv. and Kesan, Jay.
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background image
4
would not have built a network that allows people so much freedom in choosing content. Even
less likely, would be the media conglomerate’s support of a network that allowed anyone to
become a publisher. Instead, the media firms would have built networks premised on pushing
content to consumers.
11
Thus, the institutional origins of code can have a lasting effect even
after code is transferred to a different institution.
This Article analyzes the development of code on an institutional basis. Institutions were
chosen as the unit of analysis because they are responsible for creating the vast majority of code.
Their significance has led other scholars studying code to use an institutional framework.
12
Four
prominent institutions for the development of code are universities, firms, consortia, and the
open source movement. Each of these institutions has different roles, motivations, end users, and
structures. As a result, they are differentially affected by social, political, economic, and legal
influences. This is then reflected in the attributes of the final code. These attributes include
technical features, such as the use of open standards, as well as features that impinge upon
societal concerns, such as intellectual property rights and privacy. In this Article we limit our
discussion to the structure and influences upon the various societal institutions.
10
J
OHN
N
AUGHTON
, A B
RIEF
H
ISTORY OF THE
F
UTURE
: F
ROM
R
ADIO
D
AYS TO
I
NTERNET
Y
EARS IN A
L
IFETIME
274
(2000).
11
See Eileen R. Meehan, Technical Capability Versus Corporate Imperatives: Toward a Political Economy of
Cable Television and Information Diversity, in T
HE
P
OLITICAL
E
CONOMY OF
C
OMMUNICATION
167 (Vincent Mosco
ed., 1996) (highlighting interactive television’s bias towards commercialism).
12
See Walter W. Powell & Paul J. DiMaggio, Introduction, in T
HE
N
EW
I
NSTITUTIONALISM IN
O
RGANIZATIONAL
A
NALYSIS
1 (Walter W. Powell & Paul J. DiMaggio eds. 1991) (providing a brief history of institutions). There are
a number of other scholars who have discussed the relationship between code and institutions. See Phil Agre, The
Architecture of Identity: Embedding Privacy in Market Institutions
, I
NFO
. C
OMM
. & S
OC
Y
, Spring 1999, available
at http://dlis.gseis.ucla.edu/people/pagre/architecture.html (insisting that we use an institutional approach to
understand the role of code and society); Jane E. Fountain, Constructing the Information Society: Women,
Information Technology, and Design
, 22 T
ECH
. & S
OC
'
Y
45 (2001) (arguing the appropriate level of analysis is the
institution in the development of code); Richard Hawkins, Standards for Communication Technologies: Negotiating
Institutional Biases in Network Design
, in C
OMMUNICATIONS BY
D
ESIGN
: T
HE
P
OLITICS OF
I
NFORMATION AND
C
OMMUNICATION
T
ECHNOLOGIES
157 (Robin Mansell & Roger Silverstone eds., 1996); S
USANNE
K. S
CHMIDT
&
R
AYMUND
W
ERLE
, C
OORDINATING
T
ECHNOLOGY
: S
TUDIES IN THE
I
NTERNATIONAL
S
TANDARDIZATION OF
T
ELECOMMUNICATIONS
(1998) (using an approach titled Actor-centered Institutionalism).


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