Stanford Law Review
Copyright (c) 2000 The Board of Trustees of Leland Stanford Junior University
May, 2000; 52 Stan. L. Rev. 1439
What Larry Doesn't Get: Code, Law, and Liberty
(A Review of "Code and Other Laws of Cyberspace" by Lawrence
Lessig, Basic Books, 1999)
David G. Post
(Associate Professor, Beasely School of Law at
Temple University and Fellow, National Center of Technology and Law, George
Mason University School of Law; DPost@vm.temple.edu)
Many thanks to Dawn Nunziato, Eugene Volokh, and
David Johnson for illuminating conversations about earlier drafts of this
essay, to Bill Scheinler for his always-helpful research assistance, and
to Larry Lessig, for sharing his thoughts on these matters (as well as a
searchable electronic version of an early draft of his manuscript) with me.
All Internet citations were current as of May 22, 2000. Copyright ©
2000 by David G. Post and the Board of Trustees of the Leland Stanford Junior
[*1439] The emergence of the vast informational ecosystem we call cyberspace
is an event of incalculable importance in the history of human liberty. The
diversity and vibrancy of this "never-ending worldwide conversation"
n1 continues to astonish and amaze those who spend time there. But life,
as Kierkegaard reminds us, has to be lived forward, even if it can only be
understood backward. Having brought this thing into being, how do we keep
it alive and growing so that it can realize its profound freedom-enhancing
promise? What's the plan?
[*1440] Some suggest that this is all too important to be "left to
the market," that the choices cyberspace forces upon us involve fundamental,
even "constitutional," values that commerce will ignore or even destroy.
Lawrence Lessig's Code and Other Laws of Cyberspace is surely the most elegant
articulation of this view: Politics and collective decisionmaking, not the
invisible hand, will give us a cyberspace where these values are protected.
n2 I want to try here to articulate a different vision of the space. Fundamental
values are indeed at stake in the construction of cyberspace, but those values
can best be protected by allowing the widest possible scope for uncoordinated
and uncoerced individual choice among different values and among different
embodiments of those values. We don't need "a plan" but a multitude of plans
from among which individuals can choose, and "the market," and not action
by the global collective, is most likely to bring that plenitude to us.
As I was preparing this essay, I was asked to speak at a panel discussion
about the problem of unwanted and unsolicited email ("spam") at Prof. Lessig's
home institution, Harvard Law School's Berkman Center for Internet and Society.
n3 The discussion focused on one particular anti-spam institution, the Mail
Abuse Prevention System ("MAPS"); Paul Vixie, the developer and leader of
MAPS, was also a participant at the event. MAPS attacks the problem of spam
by coordinating a kind of group boycott by Internet service providers ("ISPs").
It operates, roughly, as follows. n4 The managers of MAPS create a
list - the Realtime Blackhole List ("RBL") - of ISPs who are, in their view,
fostering the distribution of spam. MAPS defines "fostering the distribution
of spam" as, inter alia, providing "spam support services" (e.g., hosting
web pages that are listed as destination addresses in bulk emails, providing
email forwarders or auto-responders that can be used by bulk emailers), or
allowing "open-mail relay" (i.e., allowing mail handling servers to be used
by nonsubscribers, which allows bulk emailers to "launder" email by launching
it from a site to which they cannot be traced). n5 MAPS makes the RBL
list available to other ISPs on a subscription basis. n6 ISPs who subscribe
to the RBL can, if they choose, set their mail handlers to delete all email
originating from, or going to, an address appearing on the list; blackholed
addresses disappear, in a sense, [*1441] from the Internet as
far as the subscribing ISP (and its customers) are concerned. n7
The timing was propitious. Lessig, it happens, has made it very clear that
he doesn't like the RBL at all. In one of the columns that he writes periodically
for the Industry Standard, he castigates members of what he called the "self-righteous
spam police," and he offered his opinion that "fundamental policy questions
about how the Net will work" should not be in the hands of these "vigilantes."
n8 Should network policy be subject to this kind of "policy-making by the
"invisible hand'"? n9
The answer is obvious, even if the solution is not. This is not how policy
should be made. We know this, but we don't know what could replace it. We
imagine policy decisions made in a context where dissent can be expressed
without punishment, where collective decisions can be made. But no such context
exists in cyberspace, nor in our imagination about what cyberspace might
Now, my take on the RBL is quite different than Lessig's. n11 The
MAPS "vigilantes" (bad) can just as easily be characterized as "activists"
(good), and the kind of "bottom-up," uncoordinated, decentralized process
of which the RBL is a part n12 strikes me as a perfectly reasonable
way to make "network [*1442] policy" and to "answer fundamental
policy questions about how the Net will work."
What I found most puzzling is not that Lessig and I disagreed; we have engaged
in a public and private conversation about law and governance in cyberspace
over the past several years, n13 and we have disagreed before. It is
that Lessig considered my view not merely incorrect, but obviously and self-evidently
incorrect. Lessig had placed a "Do Not Enter" sign at the entrance to one
path through the jungle of cyberspace policy - a path that I think looks
pretty interesting - without any real explanation of why he had done so.
Code, and Other Laws of Cyberspace is that explanation. The theme of Code
- or at least one major theme of a book filled with complex, interlocking
argument - is precisely the one that Lessig articulated in his column: that
"policy-making by the invisible hand" n15 will create a cyberspace
in which we will not want to live. There is "no reason," he states at the
very beginning of the book,
... to believe that the grounding for liberty in cyberspace will simply emerge.
In fact, as I will argue, quite the opposite is the case.... We have every
reason to believe that cyberspace, left to itself, will not fulfill the promise
of freedom. Left to itself, cyberspace will become a perfect tool of control....
The argument of this book is that the invisible hand of cyberspace is building
an architecture for cyberspace that is quite the opposite of what it was
at cyberspace's birth. The invisible hand, through commerce, is constructing
an architecture that perfects control.... n16
Code is, in short, a dense and multi-layered indictment of the invisible
hand. Good lawyer that he is, Lessig's argument has the feel of inevitability
that the best arguments always have, marching logically and even inexorably
from its premises to its conclusion: The accused is guilty as charged. Why
then, he asks with frustration and even despair, don't the Net libertarians
- those "for whom this point should be most important" - "get it"?
n17 How can [*1443] they "believe liberty will take care of itself"?
n18 Why do they seem almost "proud" to "leave things to the invisible hand"?
n19 Why don't they see that if we just "do nothing" the invisible hand is
poised to bring us a cyberspace that is "less free" than it is today?
n20 How can they be so obtuse?
Although I have not been appointed the designated spokesman for the libertarian
position - something of an oxymoron, that - I am someone who has, let us
say, more sympathy than Lessig for the libertarian position, and I'm happy
to take Lessig up on his challenge. I want to suggest here that some of us
do get it - we even admire it and learn much from it. But we don't buy it.
We do not fail to understand or appreciate the logic of Lessig's argument;
we simply do not accept its premises - premises that are, I suggest below,
not as self-evidently true as Lessig might have us believe. One can, in other
words, start from a very different set of premises and march just as inexorably
to a conclusion that at least casts reasonable doubt on the defendant's guilt.
I. The Is of It
Let us, then, take a careful look at Lessig's argument. He first sets the
context: What do we need to know about this new place in order to think clearly
about law and governance there? Lessig does not subscribe to the "cyberspace
is just like real-space" school of thought; he recognizes that one cannot
understand law and governance in cyberspace unless one acknowledges that
"something fundamental has changed," n21 that "cyberspace presents
something new for those who think about regulation and freedom. It demands
a new understanding of how regulation works and of what regulates life there."
That something new is the "code" of the book's title. The regulation of human
behavior takes place through a complex interaction among four forces, four
different "regulators." Three are familiar: law, markets, and social norms.
n23 The fourth regulator is what Lessig calls "architecture," the [*1444]
combined constraints of physics, nature, and technology that in the aggregate
define the contours of the place(s) where human behavior occurs and the thing(s)
through which it is expressed. With regard to the smoking example Lessig
uses to illustrate the way these regulators work, n24 he writes:
There are the constraints created, we might say, by the technology of cigarettes,
or by the technologies affecting their supply. Unfiltered cigarettes present
a greater constraint on smoking than filtered cigarettes if you are worried
about your health. Nicotine-treated cigarettes are addictive and therefore
create a greater constraint on smoking than untreated cigarettes. Smokeless
cigarettes present less of a constraint because they can be smoked in more
places. Cigarettes with a strong odor present more of a constraint because
they can be smoked in fewer places. In all of these ways, how the cigarette
is affects the constraints faced by a smoker. How it is, how it is designed,
how it is built - in a word, its architecture. n25
Each of these constraints is a "distinct modality of regulation."
n26 The constraints are distinct, yet highly interdependent. Regulation of
an individual's behavior is the "sum of these four constraints," n27
and a complete picture of regulatory action must consider all four.
What makes cyberspace a new place is that its architecture is, uniquely,
defined by its code - the design of the hardware and software elements that
populate this new place, and of the communication protocols that allow these
elements to interact with one another.
An analog for architecture regulates behavior in cyberspace - code. The software
and hardware that make cyberspace what it is constitute a set of constraints
on how you can behave. The substance of these constraints may vary, but they
are experienced as conditions on your access to cyberspace. In some places
(online services such as [America Online], for instance) you must enter a
password before you gain access; in other places you can enter whether identified
or not. In some places the transactions you engage in produce traces that
link the transactions (the "mouse droppings") back to you; in other places
this link is achieved only if you want it to be. In some places you can choose
to speak a language that only the recipient can hear (through encryption);
in other places encryption is not an option. The code or software or architecture
or [*1445] protocols set these features; they are features selected
by code writers; they constrain some behavior by making other behavior possible,
or impossible.... In this sense, it too is regulation, just as the architectures
of real-space codes are regulations. n28
It is the architecture of these cyber-place(s) that, to a great extent,
determines what they are, and the architecture of those places is constituted
by their code. Lessig embarks on a lengthy anthropology of life in America
Online ("AOL") to illustrate this point:
What makes 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.... As a member of AOL you can be any one of five people. This is just
one amazing feature of the space. When you start an account on AOL, you have
the right to establish up to five identities, through five different "screen
names" that in effect establish five different accounts.... five different
personae [one] can use in cyberspace. n29
It is the code/architecture of this particular cyber-place that gives visitors
this "fantastic power of pseudonymity," a power to construct their own identity
that "the "code writers' of real space simply do not give." n30 This
is not an isolated example; other features of the code/architecture of AOL
similarly determine other aspects of life there:
There are places in AOL where people can gather; there are places where
people can go and read messages posted by others. But there is no space where
everyone gathers at one time, or even a space that everyone must sooner or
later pass through. There is no public space where you could address all
members of AOL. There is no town hall or town meeting where people can complain
in public and have their complaints heard by others. There is no space large
enough for citizens to create a riot. The owners of AOL, however, can speak
to all. Steve Case, the "town mayor," writes "chatty" letters to the members.
AOL advertises to all its members and can send everyone an e-mail. But only
the owners and those they authorize can do so. The rest of the members of
AOL can speak to crowds only where they notice a crowd. And never to a crowd
greater than twenty-three....
A third feature of AOL's constitution also comes from its code. This is traceability.
While members are within the exclusive AOL content area (in other words,
when they're not using AOL as a gateway to the Internet), AOL can (and no
doubt does) trace your activities and collect information about them. What
files you download, what areas you frequent, who your "buddies" are - all
this is available to AOL. These data are extremely valuable; they help AOL
structure its space to fit customer demand. But gaining the ability to collect
[*1446] these data .... [is] part of the constitution that is AOL -
again, a part constituted by its code .... [that] gives some but not others
the power to watch. n31
Lessig argues - most persuasively - that these features of AOL's code/architecture
matter deeply for the kind of life that can be lived there and the experiences
that one can have there. n32 Particular architectures allow certain
values to flourish while making others difficult or impossible to achieve;
they enable certain ways of living while disabling others; they can give
expression to some human potentialities while silencing others. Architectures
are always like this, he observes, but they are more powerful in cyberspace
than elsewhere, for the codes of cyberspace have power that no real-space
architectures - indeed, that no other regulator in real-space - can match.
Code can achieve a kind of perfection of control that will render it, in
cyberspace, the most powerful regulator of all.
This point, familiar enough to those who have read Lessig's other works on
the law of cyberspace n33 but no less significant for that, is without
question of the deepest importance for our thinking about governance and
regulation in cyberspace. Lessig asks us to consider the "problems that perfection
makes." n34 He illustrates with respect to the set of interests protected
in real-space by copyright law:
Today, when you buy a book, you may do any number of things with it. You
can read it once or 100 times. You can lend it to a friend. You can [photocopy]
pages in it or scan it into your computer. You can burn it, use it as a paper
weight or you can sell it. You can store it on your shelf and never once
open it. n35
Some of these things you can do "because the copyright law explicitly gives
you the right," and some of these things you can do because the architecture
of real-space makes it well-nigh impossible to stop you from doing them.
n36 A book seller "might sell you the book at one price if you promise to
read it once, and at a different price if you want to read it 100 times,
but there is no way for the seller to know whether you have obeyed the contract."
n37 [*1447] The book seller could commission a police officer
to follow you around to enforce this particular bargain, but only at prohibitive
The code/architecture(s) of cyberspace are, however, not so limited. Although
there is "very little in the code as it exists now that regulates the distribution
of and access to material on the Net," n39 the codes can be designed
so as to give far greater protection to these works than real-space architectures
allow. Various technologies - "trusted systems" - permit a far more "fine-grained
control over access to and use of protected material than law permits, and
[they] can do so without the aid of law." n40 The code of trusted systems
whether you read [a work] once or one hundred times; whether you [can] cut
and paste from it or simply read it without copying; whether you [can] send
it as an attached document to a friend or simply keep it on your machine;
whether you [can] delete it or not; whether you [can] use it in another work,
for another purpose, or not.... n41
As Lessig points out, "the power to regulate access to and use of copyrighted
material [thus] is "about to be perfected.... giving holders of copyrighted
property the biggest gift of protection they have ever known." n42
So where does that leave us? In a world dominated by code - a world whose
contours, and whose values, are shaped by the code. A world in which code
can do much of "the work that the law used to do.... far more effectively
than the law did." n43 A world in which "code can, and increasingly
will, displace law." n44 A world in which "effective regulatory power
[shifts] from law to code, from sovereigns to software." n45 A world
in which code "displaces law by codifying the rules, making them more efficient
than they were just as rules." n46
Lessig is undoubtedly correct: This is a large, and a most fundamental, change.
[Cyberspace] demands a new understanding of how regulation works and of what
regulates life there. It compels us to look beyond the traditional lawyer's
scope - beyond laws, regulations, and norms.... In cyberspace we must understand
how code regulates - how the software and hardware that make cyberspace
[*1448] what it is regulate cyberspace as it is. As William Mitchell
puts it, this code is cyberspace's "law." Code is law. n47
That is, one might say, the anthropology, the is, of it. To call this portion
of Lessig's argument a tour de force renders it insufficient praise; the
exposition here is truly dazzling, and Lessig has without question made a
deeply important contribution to our understanding of law in this strange
II. The Ought of It
What, though, of the "ought"? The question remains: If one agrees with Lessig
- and I do agree with Lessig - that this is what law looks like in cyberspace,
how should we make that law? What kind of "policy-making" is best in a world
constituted like this? What does this tell us about MAPS and the RBL?
Lessig begins his normative inquiry just where the libertarians do: by asking
what, in this particular time and place and in this new world, "is the threat
to liberty, and how can we resist it?" n48 How, he asks, can we best
ensure that this is a world where human liberty can flourish? Or, rather,
he asks how we can best ensure that this remains a world where human liberty
can flourish, for he recognizes that the Net as it has come down to us -
what he calls "Net95" - has a truly remarkable "architecture of liberty"
The architecture of cyberspace makes regulating behavior difficult, because
those whose behavior you're trying to control could be located in any place
(meaning outside of your place) on the Net. Who someone is, where he is,
and whether law can be exercised over him there - all these are questions
that government must answer if it is to impose its will. But these questions
are made impossibly difficult by the architecture of the space - at least
as it was. n50
These features of the code/architecture of Net95
do not disable something important from the Net as it was; they enable something
important about the Net as it was - liberty. They are virtues of a space
where control is limited, and they help constitute that space. The constitution
of Net95 is unregulability; these features of its code make it so.
For example, it is the code/architecture of cyberspace, and not the First
Amendment, that has been "the real protector of speech there," n52
for it is the [*1449] code/architecture that "protects against
prior restraint just as the Constitution did - by ensuring that strong controls
on information can no longer be achieved." n53 Through the code/architecture
of the Net we have managed to "export to the world ... a First Amendment
in code more extreme than our own First Amendment in law." n54
But that is Net95. The code/architecture of cyberspace can change. What cyberspace
is is not what cyberspace must be. The "possible architectures of something
that we would call "the Net' are many, and the character of life within those
different architectures is diverse." n55 It is not cyberspace's "nature"
to be the way it is, or to have the code/architecture it has; we built it
that way, and we can build it in a different way. The unregulability of Net95
and the freedom-enhancing values that the Net embodies, are functions of
the code/architecture of Net95. Values very different from the freedom-enhancing
values in today's code/architecture can be embedded in tomorrow's.
And, Lessig goes on, they will be. Cyberspace, now so largely free from control,
will, if we "do nothing," n57 become a place of perfect control, an
Orwellian space devoid of the very values of liberty and free expression
built into Net95 and that we hold sacred. Why? What will cause this to happen?
Lessig suggests that two forces are aligned to bring this unpleasant world
into being. First, the governments of the world, caught off-guard by the
explosive growth of the Net, will arise from their slumber. n58 They
will come to realize (if they have not yet realized) that the code/architecture
of cyberspace holds the key to reasserting the power of their laws in this
seemingly unregulable place. Given the code/architecture of the Net as it
is, it is difficult for government to regulate behavior on the Net; but given
the code/architecture of the Net, it is "not hard for the government to take
steps to alter, or supplement, the architecture of the Net [to] ... make
behavior on the Net more regulable." n59 Liberty "depends on regulation
remaining expensive" n60; the current architecture of cyberspace makes
regulation expensive; governments will therefore force the architecture to
be altered to make regulation less expensive; this will let them reassert
control over activities in cyberspace. [*1450] If the governments
of the world can't regulate conduct directly because of the code/architecture
of cyberspace, they will "regulate the regulability" of cyberspace, forcing
changes in that code that will make it a much more regulable place.
This idea is surely not what the libertarians "don't get"; this portion of
Code reads like a kind of libertarian manifesto. Nor does this argument explain
Lessig's objections to the RBL; the code/architecture that the proprietors
of MAPS have in mind - elimination of open mail relay systems - is not government-backed
or government-endorsed in any way (precisely why the libertarians find it
There must be more to Lessig's argument. And there is. The second of the
forces bringing about change in cyberspace brings us to the heart of the
matter. Even if the governments of the world are for some reason unable or
unwilling to build a code/architecture of perfect control, Lessig continues,
the forces of commerce will do it for them. n62 To flourish in cyberspace,
commerce requires "architectures of identity" n63 - architectures that
"enable identification to enable commerce." n64 With or without government
action, these architectures will be added to the Net to make it serve commerce
more efficiently; with or without government action, regulability (and the
concomitant loss of liberty) will be the by-product of these changes.
Take, for instance, the current battle over the distribution of MP3 audio
files. n66 In an earlier time - last year - MP3 was the rage; music
enthusiasts by the thousands built websites where every imaginable form of
music was available for free downloading. ""Free music' joined the list of
free stuff that the Internet would serve." n67 But already the story
The recording industry is pushing a standard that would make it easier to
control the distribution of these files; Congress has passed a statute that
makes it a felony to produce software that evades this control; and one company
that produces [*1451] Sony Walkman-like machines to play MP3
files has already announced plans to enable its machine to comply with these
standards of control. n68
Lessig's target here is the code/architecture itself; he is equally concerned
about efforts by government - "Congress has passed a statute" - and by private
parties - "the recording industry is pushing a standard" - to build these
control architectures and to use them to regulate our activities in cyberspace.
Once again, this portion of Code, has much to teach the libertarians; efforts
to impose control over conduct in cyberspace can and will come from many
diverse directions, and eternal vigilance is, after all, the price of liberty.
But as it turns out, Lessig's view of "commerce" is an unusual, even a startling,
one. There's a small, but I think telling, moment early on in the book where
he writes, apropos of government's power to regulate the code of the Net:
In a world where the code writers were the sort of people who governed the
Internet Engineering Task Force of a few years ago, government's power to
regulate code would be slight. The underpaid heroes who built the Net have
ideological reasons to resist government's mandate. They are not likely to
yield to its threats. And unlike some commercial interests, they do not have
millions riding on a single architecture winning out in the end. Thus, they
would provide an important check on the government's power over the architectures
But as code writing becomes commercial - as it becomes the product of a smaller
number of large companies - the government's ability to regulate it increases.
As code writing becomes commercial, it becomes the product of a "smaller
number of large companies"? Why is that? Lessig writes of this concentration
of economic power as if it were somehow foreordained, an inevitable consequence
of commercialization. He has, for example, a propensity towards use of the
singular when describing the noisome effects of commerce; the forces of commerce
will deploy "an architecture of security," n71 "a general architecture
of trust ... that makes possible secure and private transactions";
n72 encryption will be at the "core of any such architecture"; n73
there are "many plans for deploying this architecture," n74 for such
[*1452] "an architecture" would provide "security greater than the
best security in real space"; n75 unless and until "such an architecture
is established," online commerce will not fully develop. n76
Commerce drives towards uniformity. While the nations of the world "argue
about what regulation there should be," commerce is moving cyberspace towards
... a fairly unified regulation through code while law remains in flux....
Just as there was a push toward convergence on a simple set of network protocols,
there will be a push toward convergence on a uniform set of rules to govern
network transactions. This set of rules will include not the law of trademark
that many nations have, but a unified system of trademark, enforced by a
single committee; not a diverse set of policies governing privacy, but a
single set of rules, implicit in the architecture of Internet protocols;
not a range of contract law policies, implemented in different ways according
to the values of different states, but a single, implicit set of rules decided
through click-wrap agreements and enforced where the agreement says.
That's a rather strong premise, it seems to me, and it appears to undergird
much of Lessig's argument about what we have to fear. I say "appears," because
as a proposition it is not always explicitly stated (or defended); but much
of what Lessig writes makes little sense without it. For instance, he writes
of the deployment of "trusted systems" for intellectual property:
What happens when code protects the interests now protected by copyright
law? What happens when ... what the law protects as intellectual property
can be protected through code? Should we expect that any of the limits [now
provided by copyright law] will remain? Should we expect code to mirror the
limits that the law imposes? Fair use? Limited term? Would private code build
these "bugs" into its protections?
The point should be obvious: when intellectual property is protected by code,
nothing requires that the same balance be struck. Nothing requires the owner
to grant the right of fair use. She might, just as a bookstore allows individuals
to browse for free, but she might not. Whether she grants this right depends
on whether it profits her. Fair use becomes subject to private gain.
Why is that so - that word again! - "obvious"? True, if there are a "small
number of large companies" n79 dominating the production and distribution
of intellectual property, "nothing requires" n80 them to provide consumers
with the ability to browse for free. And if there are a "small number of
large companies" dominating the production and distribution of intellectual
[*1453] property, when the "controls ... are built into the systems,"
"no users (except hackers) have a choice about whether to obey these controls."
But if there are many different architectures, then there is choice about
whether to obey these controls. If there are multiple architectures from
which to choose, it is no longer correct to say that "nothing requires" booksellers
to provide users the ability to browse for free; the market for bookstores,
the existence of competing bookstores, and consumers' desire to browse do
so. n82 It is hardly nothing; these are the very same things that "require"
the real-space booksellers that Lessig mentions to allow you to browse for
free. n83 And if there are diverse architectures of privacy, of identity,
[*1454] and of content protection laid before the public, why is it
so obvious that we will end up choosing the one(s) that deny us those things
that Lessig (and I) think are so important? n84
Lessig's notion that the invisible hand of commerce somehow drives towards
uniformity may be correct, n85 but it is surely not self-evidently
correct. The invisible hand may have many deficiencies, but the one thing
that it does best - far better than any alternative of which I am aware -
is to place before members of the public a diverse set of offerings in response
to the diverse needs and preferences of that public. And it seems to be working
rather well, thank you very much. When I gaze about the Net - even at those
portions of the Net that have been invaded by the forces of "commerce" -
I see something that looks more like the chaos of unchecked growth and diversity
than it does uniformity and regularity. It is not just that new websites,
and new architectures with them, seem to be sprouting like mushrooms after
a spring rain; they actually are sprouting like mushrooms after a spring
Let me be clear on this point. Libertarians "get" the point that concentrations
of power are dangerous and are to be resisted. Lessig is free to make the
assumption that when left to themselves, the forces of commerce produce
[*1455] such concentrations of power. But that hardly satisfies his
burden of persuasion, and he should not be surprised that those who find
his assumption unreasonable are also skeptical of his program.
To be fair to Lessig, this assumption is not the primary foundation of his
indictment of the invisible hand. Even if, Lessig argues, the invisible hand
were somehow able to provide a multiplicity of code/architectures for this
new world, it is still guilty; even if the invisible hand were to provide
us with choices among the different possible code/architectures of cyberspace,
it is the wrong mechanism for us to make those choices. Lessig's argument
proceeds as follows: (a) these code/architectures of cyberspace embed fundamental,
sometimes even "constitutional," values; (b) to choose among them is, therefore,
to make deeply important choices among different values; and (c) the choice
among values is the stuff of politics, not markets.
Ordinarily, when we describe competing collections of values, and the choices
we make among them, we call these choices "political." They are choices about
how the world will be ordered and about which values will be given precedence.
Choices among values, choices about regulation, about control, choices about
the definition of spaces of freedom - all this is the stuff of politics.
Code codifies values, and yet, oddly, most people speak as if code were just
a question of engineering. Or as if code is best left to the market. Or best
left unaddressed by government.
But these attitudes must be mistaken. Politics is that process by which we
collectively decide how we should live. That is not to say a space where
we collectivize - a collective can choose a libertarian form of government.
The point is not the substance of the choice. The point about politics is
process. Politics is the process by which we reason about how things ought
to be. n87
Lessig suggests that "we should not accept the idea that any part of what
defines the world as it is, is removed from politics." n88 We need,
Lessig says, "a plan"; n89 the "architecture of cyberspace is up for
grabs" - note again the use of the singular n90 - and, "depending upon
who grabs it, there are several different ways it could turn out."
n91 There are choices to be made; "clearly[,] some of these choices are collective
- about how we collectively will live in this space." n92 We can stand
by and "do nothing" as these choices are made "by others," or we can "try
to imagine a world where [these choices] can again be made collectively,
and responsibly." n93
[*1456] And this, he tells us, is just what governments are for; governments,
properly constituted, are the means by which we make, fairly and equitably
(one hopes), collective decisions of this kind. Contra the Net libertarians,
we need more, not less, government in cyberspace if those collective values
are to prevail:
We stand on the edge of an era that demands we make fundamental choices about
what life in this space ... will be like. These choices will be made; there
is no nature here to discover. And when they are made, the values we hold
sacred will either influence our choices or be ignored. The values of free
speech, privacy, due process, and equality define who we are. If there is
no government to insist on these values, who will do it? n94
Here, then, is the heart of the heart of the matter. This, finally, explains
Lessig's aversion to MAPS, and to the RBL, and to the whole "policy making
by the invisible hand" enterprise; it is not reasoned, it is not deliberative,
it is not "political," it is not made by a collective process capable of
expressing collective values.
The source of our disagreement here is now clear. I have no quarrel with
the notion that the code/architectures of cyberspace embed fundamental values,
and I have no quarrel with the notion that each of us, confronting the design
of these new cyberplaces, faces a choice among different values. It does
indeed matter, as Lessig says, whether the code of a cyber-place permits
us to be anonymous or not, tracks our mouse droppings or not, allocates to
us one screen name or ten, allows us to gather in groups of 20 or 50 or 500,
or exposes us to many or to no random encounters.
But I do quarrel with the notion that the choices to be made among value-laden
architectures are therefore "political" decisions that should necessarily
be subject to "collective" decisionmaking. Consider, by way of counterexample,
the original, and still probably the most powerful, value-laden code/architecture
of them all: the English language. n95 The semantic and syntactic structures
of English (and of all natural languages) are deep architectural constraints
on our social life, as the crits (and, indeed, Lessig himself n96)
have been fond of pointing out (and, as it should in fairness be noted, the
anthropologists have known for a while n97). Language is not just "a
way of communicating propositions about the world," it is "a constitutive
[*1457] social activity," a means by and within which we "construct
social reality." n98 Like the network protocols they so closely resemble,
n99 these semantic and syntactic structures embed important and often fundamental
Each of us, therefore, has choices to make, choices about how our own personal
architectures of social reality will be constituted. Notwithstanding powerful
"network externalities" in any linguistic system, in which we each gain communicative
power when we adopt more "interoperable" rules, the world persists in presenting
us with an imposing array of diverse and distinctive linguistic variants.
Linguistic communities, subcommunities, sub-subcommunities, and so on, each
with its own shared architecture, form and dissolve around us all the time.
We can (and should) argue about the ways in which particular linguistic architectures
constrain our social worlds; we can (and should) subject the meanings of
these code/architectures to discussion, debate, and deliberation; we can
(and should) think carefully about the choices each of us has to make about
which communities we want to join and which we want to avoid.
But now I get to assert the obvious. I take it as obvious that we do not,
and that we should not, subject those semantic and syntactic structures to
the collective for decision-making. English will evolve best not by subjecting
it to a series of decisions by the collective empowered to impose its will
on all, but by an aggregated series of individual and sub-group decisions.
We do not have, and we do not want, the Ministry of Semantic Propriety, or
our elected representatives, or a specially constituted board of experts,
or even the law professors, to make a "plan" about the proper direction(s)
that English may take or to make decisions for us in accordance with that
plan. We do not, in fact, have or need a "plan" at all. We are, and should
be, deeply suspicious of those who claim to have such a plan, and positively
terrified of those who assert that they need to enlist the coercive powers
of the State to implement that plan. If there is a serious alternative to
the invisible hand that is suitable for this task, I am not aware of it.
Interestingly enough, Lessig disagrees - or so I read his earlier work, where
he argues that the construction of language is indeed a "collective enterprise,"
that linguistic change "requires a collective effort" to solve the "collective
action problem," n100 and that the "collective must act together to
effect [linguistic] reform." n101 This is not the place to continue
that argument; [*1458] my goal here is merely to point out that
it exists, and that it is, at bottom, the basis for our disagreements about
cyberspace, and about MAPS.
For it is true: I am as dubious about the need for more politics to help
devise the plan for the codes of cyberspace as I am dubious about the need
for more politics to help devise the plan for the codes of English. This
is not to advocate "doing nothing"; it is to defend the idea that decisions
about the contours of the language we speak are best made by individuals
and not by collectives. This is not to view English as "the product of something
alien - something we cannot direct because we cannot direct anything[, s]omething
... that we must simply accept, as it invades and transforms our lives"
n102; rather, it is to express the belief that the shape of the English language
will best emerge not through politics and political processes, but as the
aggregate outcome of uncoerced individual decisions. This is not "knee-jerk
antigovernment rhetoric," n103 the "pathology of modern politics" that
is "so disgusted with self-government that [its] automatic response to government
is criticism." n104 If there is a "pathological" position here it is,
I suggest, the contrary one, for the history of "collective control" over
the use and deployment of natural languages is an ugly one; ask the Armenians,
or the Basques, or the Irish, or the Navajo.
Perhaps I am wrong, but I think I am not alone in this view. Lessig could
do worse than starting here if he is interested in uncovering why so many
people seem not to accept his argument.
III. Common Ground
Lessig's argument is an elegant structure, with powerful timbers connecting
its many parts together. It is, though, built on a patch of ground that is,
and remains, rather far from the ground occupied by the Net libertarians.
The gap separating the two encampments - let's call it "Liberty Gap" - is
a substantial one. Lessig's calls for "collective action" are unlikely to
entice those of us for whom liberty is a paramount value over to the Other
Side. "Collective action," after all, is another way to denote the use of
coercive force to bind some portion of the polity to act in ways that others
think necessary for the common good; we might be forgiven for hearing not-entirely-liberty-enhancing
overtones in those calls. Lessig himself points out that while sometimes
the values of the collective action are "values of liberty," sometimes they
are not; sometimes they must "deny or restrict liberty in the name of some
other value that is weighed more strongly than liberty." n105 Those
are not comforting words, at least to those of us on this side of Liberty
[*1459] Before we move into Lessig's structure, we would like to know
a bit more about how this collectivization process is going to work. It's
just a thing we have; the first question we like to ask about structures
of this kind is whether the "Constraints on the Exercise of Collective Power"
wing has been completed. Lessig, though he acknowledges the need for such
a wing, n106 does not give us any details about what it might look
like, no sense of how the political power he seeks to impose on the Net is
to be constrained. It is, I think, not enough to entice us to leave what
we regard as safer ground.
I do not want to suggest that this gap between the two positions is unbridgeable,
for that is clearly not the case. The truth, inevitably if somewhat anti-climactically,
lies somewhere in between the rather more extreme positions to which rhetoric
often confines us. Just as Lessig recognizes the need for constraints on
collective power, the conscientious libertarian recognizes that there are
times when collective action is required to promote the common welfare, that
the government, while not always the answer, is not always the enemy, and
that deliberation need not always be de-liberating. n107 Architectures
of liberty are of fundamental importance. They arise only as the product
of human action. They have always been, and will always be, under attack
from many directions; if we, in the aggregate, "do nothing," we will get
nothing (or worse) in return. On these points we agree, and Lessig has much
to say that libertarians would be wise to heed about the ways in which these
principles manifest themselves in cyberspace.
There is thus a building project at hand; cyberspace needs architectures
where deliberation and reason and freedom can flourish, because - we both
believe - people want to live in communities where deliberation and reason
and freedom can flourish. n108 We can disagree about the extent to
which the coercive power of the State needs to be invoked in order to get
those communities built and to get people to live there. But we do not disagree
about the need to build them. So let the building begin (or is it "continue"?).
n1. American Civil Liberties Union v. Reno, 929 F. Supp. 824, 883 (E.D. Pa.
n2. See text accompanying notes 87-94 infra.
n3. My thanks go to Jonathan Zittrain, Executive Director of the Berkman
Center, for inviting me to this event; those interested can view the "scribe's
notes" of this discussion at Internet and Society 1999: The Technologies
and Politics of Control <http://cyber.law.harvard.edu/is99/ scribes10.html>,
and the event itself in RealVideo at <http://cyber.law.harvard.edu/is99/class10>.
n4. See generally MAPS Realtime Blackhole List <http://maps.vix.com/rbl/>;
Mail Abuse Prevention System <http://mail-abuse.org/>.
n5. See MAPS RBL Candidacy <http://maps.vix.com/rbl/candidacy.html>.
n6. There is currently no charge to subscribe to the RBL. See MAPS RBL Participants
n7. For instance, suppose I use the facilities of Temple University to send
and receive email over the Internet. Assume that Temple is a subscriber to
the RBL, and that the ISP XYZ.com is placed on the RBL. If Temple chooses
to implement the "boycott" of XYZ in its mail handling software, any email
that I send to firstname.lastname@example.org, and any email that is addressed to me from
email@example.com, will be deleted before delivery.
n8. Lawrence Lessig, The Spam Wars, The Industry Standard (Dec. 31, 1998)
n10. Id. (emphasis added).
n11. See David G. Post, Of Horses, Black Holes, and Decentralized Law-Making
in Cyberspace (last modified March 1, 1999) <http://www.temple.edu/lawschool/dpost/blackhole.html>.
n12. Many other organizations compete with MAPS's efforts to reduce or eliminate
what they regard as "spam." The Open Relay Behavior Modification System (ORBS)
focuses its efforts on identifying and providing a list of mail servers which
permit third-party relay. See Orbs <http://www.orbs.org/>. The Network
Abuse Clearinghouse forwards complaints about spam and other network related
issues to the appropriate network administrator. See Abuse.Net: Home Page
<http://www.abuse.net>. The site www.spam.abuse.net provides a wealth
of information on current efforts to curb spam, as well as practical methods
and practices to reduce spam on a given network or spam being passed through
a given server. See Fight Spam on the Internet! <http://www.spam. abuse.net>.
The Forum for Responsible & Ethical E-Mail educates system administrators
in ways to reduce spam, educates end-users about how to reduce spam, and
lobbies governmental bodies to pass legislation to reduce spam. See Forum
for Responsible and Ethical E-Mail <http://www. spamfree.org/>. The
Coalition Against Unsolicited Commercial E-Mail ("CAUCE") primarily concerns
itself with lobbying governments to pass legislation restricting spam. See
Coalition Against Unsolicited E-Mail <http://www.cauce.org/>. Finally,
The Blacklist of Internet Advertisers keeps a regularly updated list of advertisers
it deems to have violated netiquette by engaging in such practices as sending
unsolicited bulk email. See Blacklist of Internet Advertisers <http://www-math.uni-paderborn.de/<diff>axel/BL/blacklist.html>.
n13. See, e.g., David G. Post & David R. Johnson, "Chaos Prevailing on
Every Continent': A New Theory of Decentralized Decision-making in Complex
Systems, 73 Chi.-Kent L. Rev. 1055 (1998) (available online at <http://www.temple.edu/lawschool/dpost/chaos/chaos.htm>)
(responding to Lawrence Lessig, The Zones of Cyberspace, 48 Stan. L. Rev.
1403 (1996), responding to David R. Johnson & David G. Post, Law and
Borders: The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996)).
n14. This is not meant as criticism; having myself written a fair number
of short "popularized" columns about complex issues of cyberspace law over
the past several years, I am well aware of the difficulties of sustaining
a complete and fully specified argument within the draconian word-length
constraints under which Lessig was undoubtedly operating.
n15. Lessig, supra note 8.
n16. Pp. 5-6 (emphasis added).
n17. P. 58. The final chapter of Code is entitled "What Declan Doesn't Get."
Declan refers to Declan McCullagh, a "smart, if young, libertarian" who writes
for Wired News and runs a popular listserve, and "whose first reaction to
any suggestion that involves government is scorn." P. 231. See also Code
and Other Laws of Cyberspace <http://www.what-declan-doesnt-get.com>.
n18. P. 58.
n19. P. 234.
n20. P. 109.
n21. P. 126.
n22. P. 6.
n23. See generally Pp. 85-99. Lessig illustrates this point using the example
of smoking: "If you want to smoke," he asks, "what constraints do you face?
What factors regulate your decision to smoke or not?" P. 87. The law is one
constraint, for there may be laws that prohibit sales to persons under 18,
or laws that prohibit smoking in certain places. Norms also constrain, norms
that say that one doesn't light a cigarette in a private car without first
asking permission of the other passengers, or that one needn't ask permission
to smoke at a picnic, or that others can ask you to stop smoking at a restaurant.
And the market, too, is a constraint, inasmuch as the price/quality characteristics
of the offerings in the market for cigarettes affects your ability and willingness
to smoke. See id.
n24. See note 23 supra.
n25. P. 87.
n26. P. 88.
Changes in any one [of these four regulators] will affect regulation of the
whole. Some constraints will support others; some may undermine others....
The constraints are distinct, yet they are plainly interdependent.... Technologies
can undermine norms and laws; they can also support them. Some constraints
make others possible; others make some impossible. Constraints work together,
though they function differently and the effect of each is distinct. Norms
constrain through the stigma that a community imposes; markets constrain
through the price that they exact; architectures constrain through the physical
burdens they impose; and law constrains through the punishment it threatens.
We can call each constraint a "regulator," and we can think of each as a
distinct modality of regulation.
n27. P. 87.
n28. P. 89 (citations omitted).
n29. Pp. 70, 67.
n30. P. 68. You can, as Lessig points out, "try in real-space to live the
same range of multiple lives ... But unless you take extraordinary steps
to hide your identity, in real space you are always tied back to you. You
cannot simply define a different character; you must make it, and more important
(and difficult), you must sustain its separation from your original identity."
n31. Pp. 68-69.
n32. See pp. 69-71; see also pp. 82-83 ("How Architectures Matter and Spaces
n33. See, e.g., Lawrence Lessig, Commons and Code, 9 Fordham Intell. Prop.,
Media & Ent. L.J. 405 (1999); Lawrence Lessig, Constitution and Code,
27 Cumb. L. Rev. 1 (1996/97); Lawrence Lessig, Intellectual Property and
Code, 11 St. John's J. Legal Comment. 635 (1996); Lawrence Lessig, The Limits
in Open Code: Regulatory Standards and the Future of the Net, 14 Berkeley
Tech. L.J. 759 (1999); Lawrence Lessig, Reading the Constitution in Cyberspace,
45 Emory L.J. 869 (1996); Lawrence Lessig, The Zones of Cyberspace, 48 Stan.
L. Rev. 1403 (1996).
n34. P. 139.
n35. P. 128.
n38. See id.
n39. P. 127. See also id. ("Given the present code of the Internet, you can't
control well who copies what. If you have a copy of a copyrighted photo,
rendered in a graphics file, you can make unlimited copies of that file with
no effect on the original. When you make the one-hundredth copy, nothing
indicates that it is the one-hundredth copy rather than the first. There
is very little in the code as it exists now that regulates the distribution
of and access to material on the Net.").
n40. P. 129.
n41. P. 128.
n42. P. 127.
n43. P. 130.
n44. P. 126.
n45. P. 206.
n46. P. 130.
n47. P. 6 (emphasis in original).
n48. P. 85.
n49. P. 30.
n50. Pp. 19-20.
n51. P. 28.
n52. Pp. 166-67. See also p. 166:
On top of this list of protectors of speech in cyberspace is architecture.
Relative anonymity, decentralized distribution, multiple points of access,
no necessary tie to geography, no simple system to identify content, tools
of encryption - all these features and consequences of the Internet protocol
make it difficult to control speech in cyberspace.
n53. P. 170 (citing Floyd Abrams, First Amendment Postcards from the Edge
of Cyberspace, 11 St. John's J. Legal Comment. 693, 699 (1996)).
n54. P. 167 (emphasis in original).
n55. P. 25.
n56. P. 60 (noting that where the "basic assumptions" underlying the code
of Net95 were "liberty and openness," today "an invisible hand ... threatens
n57. P. 109.
n58. Pp. 43-60 (Chapter Five: "Regulating Code").
n59. Pp. 43-44.
n60. P. 56 ("Cost for the government is liberty for us. The higher the cost
of a regulation, the less likely it will be pursued as a regulation. Liberty
depends on the regulation remaining expensive.").
n61. P. 198 ("Real-space sovereigns ... will come to see that the power of
another sovereign is wired into their telephones, and they will struggle
... as the rules and norms of this other sovereign affect the behavior of
their citizens in their space. They have the tools at their disposal to resist
the architecture of the Net to protect their regulatory power.").
n62. Pp. 30-42 (Chapter Four: "Architectures of Control"); see also p. 30
("the Net is being remade to fit the demands of commerce ... [and] regulability
will be a by-product of these changes.").
n63. Pp. 34.
n64. P. 30.
n65. P. 58 ("Market forces encourage architectures of identity to facilitate
online commerce. Government needs to do very little - indeed, nothing at
all - to induce just this sort of development. The market forces are too
powerful; the potential here is too great. If anything is certain, it is
that an architecture of identity will develop on the Net - and thereby fundamentally
transform its regulability.").
n66. Lessig discusses this example in his Preface. P. x.
n69. Lessig thinks very little of the distinction that the law on occasion
draws between "public" and "private" action. Pp. 186-87, 213-21 (developing
argument that constitutional limitations should be applied to private conduct
as well as to "state action").
n70. P. 52 (emphasis added) (footnote omitted).
n71. P. 40.
n72. Id. (citation omitted).
n73. P. 41.
n77. P. 206 (emphasis added).
n78. P. 135 (emphasis added).
n79. P. 52.
n80. P. 135.
n81. P. 130.
n82. To return, for the moment, to Lessig's example of MP3 audio files, see
text accompanying note 66 supra, there are any number of digital music formats
available in addition to MP3. Schemes for the protection of digital music
abound. Perhaps the most widely adopted non-MP3 format is Microsoft's Windows
Media Audio (WMA). Microsoft has positioned the WMA format to be suitable
for all sorts of audio applications, including distribution of music files
and streaming applications, e.g., live broadcasts of "radio" shows over the
Internet. See Starr Andersen, About the Windows Media Audio Code <http://www.msdn.microsoft.com/workshop/imedia/windowsmedia/
Tools/MSAudio.asp>. Recently, Sony announced it would utilize the WMA
format for the distribution of digital audio from its "bitmusic" website,
coupling WMA with IBM's Electronic Music Management System ("EMMS") for the
protection of copyrights. See Yoshiko Hara, Sony Skips MP3 as It Spins Web
Music Service, EE Times, Issue 1092 (Dec. 20, 1999) <http://www.techweb.
com/se/directlink.cgi?EET19991220S0009>. Sony has also created a digital
rights management system consisting of "MagicGate" and "OpenMG" components,
which limits where and how many times a given song may be copied. See Sony
and RealNetworks Announce Strategic Alliance for Secure Electronic Music
Distribution (Jan. 7, 2000) <http://www.realnetworks.com/company/ pressroom/pr/00/sony.html>.
IBM's EMMS system is based on an architecture that includes a "clearinghouse
that authorizes and processes transactions.... [thereby providing] a highly
secure rights management capability." IBM and Major Record Companies to Test
Internet Music Distribution <http://www.ibm.com/news/ls/1999/02/mu<uscore>intro.phtml>.
AT&T has developed what it calls its "a2b" technology, based on the MPEG
Advanced Audio Coding specification. See AT&T's a2b Music Delivers Highest
Sound Quality for Digital Music Distribution <http://www.att.com/ campusalliance/a2bmusic.html>.
The a2b format compresses music files using proprietary algorithms which
can "compress music at ratios up to 20:1 without perceptual loss of quality"
and uses the "CryptoLib Security Library," which utilizes various encryption
algorithms including the RSA and DES algorithms for copy management. a2b
Music Technology <http://www.a2bmusic.com/ technology.asp>. RealNetworks
has utilized still other strategies to protect and distribute music over
the Internet, including the development of its own "G2" format. When RealNetworks
introduced its "Real Jukebox" product, it included a tethering technology
whereby digital copies of tracks from audio CDs were limited to single copies,
unless the user turns off the protection system. See John Markoff, New System
for PC Music Stirs Concern Over Piracy, N.Y. Times, May 3, 1999, at C1. RealNetworks
recently announced that it would incorporate a digital rights management
system from InterTrust Technologies into its secure digital format. See Lessley
Anderson, Secure Online Music: To Be or Not to Be?, The Industry Standard
(May 5, 1999) <http://www. thestandard.com/article/display/0,1151,4473,00.html>.
Other significant protection schemes include technologies from Bell Laboratories,
Blue Spike Inc., Aris Technologies, Cognicity, and Solana Technology Development
Corp. See Junko Yoshida and Margaret Quan, Groups Debate Security Technology
for Internet, DVD Audio - Watermark Wave Cresting, EE Times, Issue 1052 (March
15, 1999) <http://www.techweb.com/se/directlink.cgi?EET19990315S0004>.
n83. Similarly, Lessig writes that although you can "resist" the code imposed
on you by America Online,
just as you can resist cold weather by putting on a sweater, ... you are
not going to change how [the code] is. You do not have the power to change
AOL's code, and there is no place where you could rally AOL members to force
AOL to change the code.
P. 70 (emphasis added). But unless AOL is in a highly unusual and non-functioning
market, you do have the power to "change AOL's code"; the market gives you
- consumers, in the aggregate - that power, even without a "rally."
Lessig's colleague Andrew Shapiro, another member of this so-called "techno-realist"
school of thought, seems to have a similar view of the uniformity towards
which the forces of commerce inevitably lead. In The Control Revolution,
a book that echoes many of the themes in Code, Shapiro writes that the Net's
"potential for individual empowerment and unfettered citizen interaction"
will not be fulfilled "unless it is characterized by a strong degree of diversity
and fortuity" - as if that were not already the case. Andrew Shapiro, The
Control Revolution: How the Internet Is Putting Individuals in Charge and
Changing the World We Know 203 (1999).
n84. See Tom W. Bell, Fair Use Vs. Fared Use: The Impact of Automated Rights
Management on Copyright's Fair Use Doctrine, 76 N.C. L. Rev. 557 (1998) (making
this argument with specific reference to fair use).
n85. I am not unaware of the idea that the codes of cyberspace may be subject
to powerful "network externalities" which can, in some circumstances, promote
"winner-take-all" markets. See generally Mark A. Lemley & David McGowan,
Legal Implications of Network Economic Effects, 86 Cal. L. Rev. 479 (1998).
n86. See Reka Albert, Hawoong Jeong, and Albert-Laszlo Barabasi, Diameter
of the World-Wide Web, 401 Nature 130 (1999); Bernardo A. Huberman and Lada
A. Adamic, Growth Dynamics of the World-Wide Web, 401 Nature 131 (1999) (demonstrating
that the growth of websites, and of links among websites, follow quite precisely
the mathematical distribution that characterizes growth in biological populations);
see generally David G. Post & Michael B. Eisen, How Long Is the Coastline
of the Law? Thoughts on the Fractal Nature of Legal Systems, 29 J. Legal
Stud. 545 (2000) <http://www.temple.edu/lawschool/dpost/fractals.pdf>
(discussing the general significance of these "power law" distributions for
the study of social and biological systems).
n87. P. 59 (first emphasis added).
n88. Id. (emphasis added).
n89. P. 222.
n90. See text accompanying notes 71-78 supra (noting Lessig's use of rhetoric
of a single, uniform "architecture").
n91. P. 219.
n93. P. 220.
n95. Any natural language would, of course, serve equally well in this example.
n96. See Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. L.
Rev. 943 (1995).
n97. The classic statements of this view - that every language binds the
thoughts of its speakers by the involuntary patterns of its grammar, and
that we experience the world as we do because the structures of our language
predisposes us towards certain interpretations of phenomena in the world
- are in Edward Sapir, Language: An Introduction to the Study of Speech (1921);
Selected Writings of Edward Sapir in Language, Culture and Personality (David
G. Mandelbaum ed., 1949); and the works of Benjamin Whorf. See Benjamin Lee
Whorf, Language, Thought, and Reality: Selected Writings of Benjamin Lee
Whorf (John B. Carroll ed., 1956).
n98. Lessig, supra note 96, at 976.
n99. We should not lose sight of the fact that when we talk of the codes
of cyberspace we are talking, when all is said and done, about truly linguistic
constructs, built out of the new languages - Java, HTML, C++, and the like
- of the digital age.
n100. Lessig, supra note 96, at 1000.
n101. Id. at 1007.
n102. P. 233.
n103. P. xi.
n104. P. 209.
n106. P. 208 ("I am not a statist. I don't think the best of us is given
to us from top-down. There is a proper space for collective life, and an
important space for private life. A good constitution helps us navigate that
n107. Talk about the architecture of English! As it turns out, the seeming
opposition between "liberation" and "deliberation" is just an ironic semantic
coincidence. The two words appear to have been derived independently from
different roots, the former from the Latin liber, to set free (and related
to the Roman god of growth, Liber), the latter from the Latin librare, to
balance (hence Libra, the scales). See Eric Partridge, Origins: A Short Etymological
Dictionary of Modern English 352 (1958).
n108. See, for example, Lessig's eloquent defense of open source software
in Chapter 8, which stakes out a position that many libertarians can (and
should) heartily endorse.