If CODE is LAW, which mixture of possible “regulations” would work better?

Law is very similar to the mayonnaise: it requires creativity and art when mixing and handling the ingredients, but this does not mean that with the same ingredients and receipt the result will be always the same. (Corrado Giustozzi, my translation from Italian)

Technology is changing the “rules” of the game. When Professor Lessig stated for the first time in his book, Code and other Laws of Cyberspace, that CODE is LAW, he simple stated something obvious, but misunderstood by the, let’s say, “legal cast” (which includes policy makers). Code not only means < code /> but also the “law”. Into his last update, Code 2.0, the notion of CODE is LAW is even clearer.

According to Lessig, we have to take care about two main ideas: what things are regulated, and what laws affect when regulating those things. If we do not understand what these important notions are about, we cannot grasp the big question which has been missing out from the very best beginning.

What is regulated? And… How? Taking, Lessig’s example of “the small dot regulated by different actors”, let’s imagine a small dot which represents us. The dot is surrounded by four different actors that can regulate it.

Lawrence Lessig, “Code and other Laws of Cyberspace“.

• One actor is the Law. Statements enforced by Law regulate the dot. Let’s think about a simple statement like “do not rob a bank”.
• Another actor would be Norms. These are statements made by society (and culture). An easy one would be “men do not dress skirts like women”. This might change from country to country. (Think about the Scottish traditional skirt used in celebrations). These norms are enforced by the community.
• A third actor would be the Market. These are simultaneous statements enforced through the rules of property and contract. Think about the same type of article, from different brands, which have different prices.
• Finally, we have the fourth actor, the Architecture. The Architecture is the means or the technology that makes possible certain things. Think about Nature as being enforced by God, or certain scopes of “non-privacy” / “privacy” enforced by a certain technology/ architecture.

These four actors (Law, Norms, Market, Architecture) do not act alone when regulating the dot. They interact and mix. Thus, depending on the mixture we make, results will be VERY different. The effects of a certain mixture of these four actors can be useful or terribly inadequate for nowadays world.

Let’s take the example of Professor Lessig in the video provided above. Smoking. How could Law regulate “smoking”?

• Law could affect Norms, for example, by stating that “smoking is bad” or “cool guys do not smoke” (just the opposite of what we can see in movies from the ’50s) and presenting the image of a smoker as someone bad.
• Or Law could affect the Market by constraining the market of tobacco with more taxes.
• Or Law could affect the Architecture of the cigarette, by reducing the amount of nicotine that could contain each cigarette, thus, the dot would be less addicted to tobacco.
• Or Law could affect a combination of the stated above.

What happens with the Web? Let’s think about “regulating” as a mayonnaise receipt, Law as the mayonnaise, and our four actors as the ingredients. Which mixture would work the best for us?

When the WEB was born it was STATELESS and BORDER-LESS. Something very utopian, very good for our privacy, but very bad for commerce indeed. This Utopian Web, as conceived in 1992 by Tim Berners-Lee, had Alzheimer: after you had visited a webpage, that page would automatically forget you. The cure for the Web’s Alzheimer, thus the death of the Utopian side of it, were cookies. In 1994 Netscape introduced a new protocol for cookies through its http protocol. Cookies identify and remember the pages you visited. They also know were you are placed geographically. Thus, cookies make it easier to track every movement in the web. Something good and essential for commerce but bad for privacy.

Following the examples given by Lessig, on 1999, Cyril Houri, while being in Paris, noticed that the adds in his mail account were not French, but American. Thus, quite unpractical and inefficient for advertising. As the web was BORDER-LESS, adds from China could be shown to the whole world, to put an example. Cyril created a technology to know WHO, WHERE and WHAT THE WHO DID on the Web through the TCP/IP. Afterwards, Cyril was testimony in the case LICRA vs. YAHOO France, a case relating the sells of Nazi paraphernalia through internet in France. Something forbidden by Law. As Cyril’s technology permeated to know WHO, WHERE and WHAT, the judge stated that Yahoo France could easily block that content in France, even though it might be legal in the US. This was possible thanks to the IP, which links geographically.

The difference in the Code changed the rules of the game: from the STATELESS, BORDER-LESS, UTOPIAN and sick with ALZHEIMER Web, to a GEOGRAPHICALLY traceable, more COMMERCIAL and “HEALTHY” Web. Why did this change on the Architecture of the Web (http cookies) appear? Why Cyril created a technology to link geographically an internet user? Simply because the Market demanded it. The Market demanded a change on the Architecture, and at the same time the Law took advantage of these changes and changed the Architecture as well.

So, instead of using a receipt of the analogical world for making mayonnaise, we should think about trying to find the right mixture of ingredients to create the suitable mayonnaise for the digital world (which, at its turn, is influencing how we act in the analogical world).

As Lessig states, the Web was thought as an END-TO-END architecture. At its beginning, our UTOPIAN, STATELESS and BORDER-LESS Web had a Read-Only Culture. What is a Read-Only Culture? A culture in which you can only watch or read what a few have created. (As opposite to a Read-Write Culture, explained below). Intelligence in this UTOPIAN, STATELESS and BORDER-LESS Web was placed on the End of it. That is, the middle was thought as being as stupid as possible. Thus, it was just Read-Only.

Each type of Architecture enables certain kinds of innovation. It has different types of incentives. Thus, if we create a Web which places its main principle as being End-to-End, and thus having a Read-Only Culture, it gives incentives to a certain type of creation. The Web as we know it today, it places its incentives differently (think about the Read-Write Culture, explained below). Despite this, the US FCC, is using all its efforts in trying to protect those incentives. Thus, offering Network Neutrality Regulations. According to Lessig, they MISSED THE POINT. The main problem is not HOW TO PRESERVE but WHAT ARE THE MOST APPROPRIATE MEANS TO PROTECT THIS ARCHITECTURE. Regulating which behaviors are those enabled to assure the Net’s Neutrality is not the correct answer.

Do we have another way for that? Another receipt for our mayonnaise? Yes. Instead of regulating behaviors, we could regulate the Market relationships by using contracts. We use “contracts” and “licenses” with copyrighted material, for example. What do you think would work better? Regulating behaviors? Or… regulating contracts? (This has never really been asked…)

Let’s go an step further. We have said that in a Read-Only Culture creativity is just consumed. It’s something given from the top down to the pyramid. In words of Lessig, technology enables efficient consumption (reading) but inefficient amateur production (writing). In a Read-Write Culture, creativity is not just consumed, it is created. It’s not something given from the top down of the social pyramid, but something which travels up and down of it. Something is shared, mixed, re-shared, remixed… In a Read-Only Culture, we lose the capacity for creating. However, in a Read-Write Culture, the capacity for creating is promoted.

Nowadays Web has a Read-Write Culture. Think about, for example, Youtube (or Vimeo). Youtube is a platform of creativity, Read-Write creativity to be precise. In it, Read-Write Communities have its place. People share, others re-mix, and share again. So, what about COPYRIGHT? We are using an “archaic” Copyright regulation. It is not bad as it is, but it is bad as it is being applied into reality. According to Jack Valenti, we are at COPYRIGHT WAR against terrorists, that is our youngsters (translate “youngsters” as “kids”). Thus, we have to use Law to stop the “terrorists” in this war (kids!?). Why, instead of making villains and criminals of the population (mostly young people, kids…), don’t we modify Markets and Law to reflect new ways of culture and creativity while using the copyright? As Lessig states: does the current mix of Law (our mayonnaise) makes any sense at all? The answer is: NO.

Nowadays Copyright regulates far too much, and is far too inefficient. We have to separate what is AMATEUR from that which is PROFESSIONAL. The matrix for a good regulation of Copyright should be:

The Web Architecture enables sharing. But sharing does not equals piracy. When Napster appeared policy makers did not see it as “the hugest library of music ever created in human history” but as the “hugest way for copying copyrighted music”. Even though Napster offered to pay 1billion dollars plus a fee for using the Network to the Labels, they refused. Thus, Napster was destroyed, with the consequence of having thousands of mini Napsters. Many more piracy appeared, thus more “criminals” appeared. As you’ll see in the video, this was going to happen. It was OBVIOUS, because the Architecture of the Internet allows it. However, “the law” acted as if there was no Internet at all. Where is the reason here?

According to Lessig, how do the policy makers need to respond? First, (you can laugh loudly) they have to ACKNOWLEDGE that, in fact, there is an Internet. After acknowledging this, because there is sharing, new ways for compensating the artists have to be found, so that they do not get harmed. But, given the reason shown by the policy makers till now, do we have any clue which tells us that they are not going to make big mistakes as the one made with Napster? Unfortunately, it does not seem so.

Even though most countries have a so-called “Representative Democracy”, as is happening with the US, the “Representative Democracy” has failed its name and origins. While Congress (of the US) should be dependent on the people alone, it does depend on the “founders” alone. If you want to keep your power in the Congress you need to raise money to get there. Thus, policies are not made to benefit the people (let’s say the 90% of the entire population) but in favor of the founders (just the 10% of it). As Congress decays, the Representative Democracy does. There’s not a dependency on the people alone, but a dependency of the institution of corruption. According to Lessig, if we want to regulate correctly our societies, we have to fix the roots first.

Don’t be fooled thinking that this only happens in the US. In Europe it also happens, with different scopes and degrees. We need to understand the true problems behind the mask that Labels and organizations are putting in front of our eyes. A good education on what Copyright is and what you can do with, for example, Licenses, is helpful. Knowledge gives you power. Ignorance enslaves you.

BOOKS WORTH READING

• Lawrence Lessig, “Code and other Laws of Cyberspace”, “Code 2.0″ (pdf), and “Free Culture” (pdf).
• Joel R. Reidenberg, “Lex Informatica: the formulation of Information Policy. Rules through Technology“, on Texas Law Review, Volume 76, Number 3, February 1998.
• Barbara van Schewick, “Internet Architecture and Innovation“.
• Jonathan Zitrain, “The Future of the Internet, and how to stop it” (pdf).