Dictionary of Arguments


Philosophical and Scientific Issues in Dispute
 
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Code Lessig I 81f
Code/Lessig: The issue here is how the architecture of the Net—or ist “code”—itself becomes a regulator. In this context, the rule applied to an individual does not find its force from the threat of consequences enforced by the law—fines, jail, or even shame.
I 82
A locked door is a physical constraint on the liberty of someone to enter some space.
I 93
[This kind of code] is not just written rules; it is not just custom; it is not just the supply and demand of a knowing consuming public.What makes [e.g.] 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. You can resist this code—you can resist how you find it, just as you can resist cold weather by putting on a sweater. But you are not going to change how it is.
I 139
By “open code” I mean code (both software and hardware) whose functionality is transparent at least to one knowledgeable about the technology. By “closed code”, I mean code (both software and hardware) whose functionality is opaque. One can guess what closed code is doing; and with enough opportunity to test, one might well reverse engineer it. But from the technology itself, there is no reasonable way to discern what the functionality of the technology is.
I personally have very strong views about how code should be created. But whatever side you are on in the “free vs. proprietary software” debate in general, in at least the contexts
I will identify here, you should be able to agree with me first, that open code is a constraint on state power, and second, that in at least some cases, code must, in the relevant sense, be “open.”
I 149
The code is regulable only because the code writers can be controlled. […]An unmovable, and unmoving, target of regulation, then, is a good start toward regulability. And this statement has an interesting corollary: Regulable code is closed code.
I 150
To the extent that code is open code, the power of government is constrained.Government can demand,government can threaten, but when the target of its regulation is plastic, it cannot rely on its target remaining as it wants. […] Books are open code: They hide nothing; they reveal their source—they are their source! A user or adopter of a book always has the choice to read only the
I 151
chapters she wants. Closed code functions differently. With closed code, users cannot easily modify the control that the code comes packaged with.Hackers and very sophisticated programmers may be able to do so, but most users would not know which parts were required and which parts were not. Or more precisely, users would not be able to see the parts required and the parts not required because the source code does not come bundled with closed code.Closed code is the propagandist’s best strategy—not a separate chapter that the user can ignore, but a persistent and unrecognized influence that tilts the story in the direction the propagandist wants.
I 152
If the world becomes certificate-rich, regulability still increases. The same conclusion follows if more code were burned into hardware rather than left to exist as software. Then, even if the code were open, it would not be modifiable. (1)
I 175
[…]something fundamental has changed: the role that code plays in the protection of intellectual property. Code can, and increasingly will, displace law as the primary defense of intellectual property in cyberspace. Private fences, not public law.
I 276
My vote in each context may seem to vary. With respect to intellectual property, I argue against code that tracks reading and in favor of code that guarantees a large space for an intellectual commons. In the context of privacy, I argue in favor of code that enables individual choice—both to encrypt and to express preferences about what personal data is collected by others. Code would enable that choice; law could inspire that code. In the context of free speech, however, I argue against code that would perfectly filter speech— it is too dangerous, I claim, to allow perfect choice there. Better choice, of course, is better, so code that would empower better systems of reputation is good, as is code that would widen the legitimate range of broadcasting. The aim in all three contexts is to work against centralized structures of choice. In the context of filtering, however, the aim is to work against structures that are too individualized as well.
I 323
Jean CampVsLessig: Jean Camp, a Harvard computer scientist who taught in the Kennedy School of Government, said that I had missed the point. The problem, she said, is not that “code is law” or that “code regulates. LessigVsVs: Of course, for the computer scientist code is law. And if code is law, then
obviously the question we should ask is:Who are the lawmakers?
I 324
But to a lawyer, both Camp and I, throughout this book, have made a very basic mistake. Code is not law, any more than the design of an airplane is law. (See Internet Law/Lessig).
I 328
Does this mean that we should push for open rather than closed code? Does it mean that we should ban closed code? The best code (from the perspective of constitutional values) is both modular and open. Modularity ensures that better components could be substituted for worse. And from a competitive perspective, modularity permits greater competition in the development of improvements in a particular coding project.
I 329
The law prefers opaque to transparent code; it constructs incentives to hide code rather than to make its functionality obvious. […] Our law creates an incentive to enclose as much of an intellectual commons as possible. It works against publicity and transparency, and helps to produce, in effect, a massive secret government. […] But the inertia of existing law—which gives software manufacturers effectively unlimited terms of protection—works against change. The politics are just not there.

1. I am grateful to Hal Abelson for this point.

Lessig I
Lawrence Lessig
Code: Version 2.0 New York 2006ff

Copyright Kerr Morozov I 195
Copyright/Behavior/Internet Law/Online Law/Kerr/Morozov: Kerr's concern - and he restricts his discussion to technologies such as "Digital Rights Management"-protection DRM (to be found in electronic books and DVDs) and driverless cars - is that such systems lead to a kind of "moral handicap" in which people set their moral on the autopilot and to do not care about willingness to be honest. Kerr notes that "digital locks would secure owners' special results, but at the expense of the moral project of honesty". (1) Morozov: these mechanisms also influence our behaviour towards our neighbour in daily life.
Kerr brings many examples, such as shopping carts that stop in the parking lot or golf carts that automatically stay out of the lawn.
I 196
MorozovVsKerr: he understands moral behaviour too narrowly - e. g. an absent-mindedly driver can be protected by automatic systems.
I 197
Regulation/Roger BrownswordVsKerr/Morozov: there are three ways to regulate our behavior:
a) Moral: by argumentation with right and wrong
b) by appealing to our own interests, i. e. that we ourselves are ultimately harmed by misconduct
c) by appealing to practicability: through technical obstacles without an appeal for morality or wisdom. (2)

1. Ian R. Kerr, “Digital Locks and the Automation of Virtue,” in “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda, ed. Michael Geist (Toronto: Irwin Law, 2010),
2. Roger Brownsword, “Whither the Law and the Law Books? From Prescription to Possibility,” Journal of Law and Society 39, no. 2 (2012): 296– 308; Brownsword, “Lost in Translation: Legality, Regulatory Margins, and Technological Management,” Berkeley Technology Law Journal 26 (2011): 1321– 1366; and Brownsword, Rights, Regulation and the Technological Revolution (New York: Oxford University Press, 2008).

PolKerr I
Ian R. Kerr
Digital Locks and the Automation of Virtue Toronto 2010


Morozov I
Evgeny Morozov
To Save Everything, Click Here: The Folly of Technological Solutionism New York 2014
Cyberspace Lessig I 83
Cyberspace/Lessig: Cyberspace, is not just about making life easier. It is about making life different, or perhaps better. It is about making a different (or second) life.
I 85
Cyberspace has changed in part because the people—who they are,what their nterests are—have changed, and in part because the capabilities provided by the space have changed. But part of the change has to do with the space itself. Communities,
exchange, and conversation all flourish in a certain type of space; they are extinguished in a different type of space. (1)
Spaces have values.6 They manifest these values through the practices or lives that they enable or disable.
I 86
Choices mean that differently constituted spaces enable and disable differently. The blind could easily implement speech programs that read the (by definition machine-readable) text and could respond by typing.Other people on the Net would have no way of knowing that the person typing the message was blind, unless he claimed to be. The blind were equal to the seeing.
I 169
Trespass law/Harold Reeves/Lessig: should there be a trespass law for the cyberspace? (2) – Reeves initial idea was simple: There should be no trespass law in cyberspace.2 The law should grant “owners” of space in cyberspace no legal protection against invasion; they should be forced to fend for themselves. What means would bring about themost efficient set of protections for property interests in cyberspace? One is the traditional protection of law […]The other protection is a fence, a technological device (a bit of code) that (among other things) blocks the unwanted from entering.
I 170
The implication of this idea in real space is that it sometimesmakes sense to shift the burden of protection to citizens rather than to the state. […]Reeves argues that the costs of law in this context are extremely high—in part because of the costs of enforcement, but also because it is hard for the law to distinguish between legitimate and illegitimate uses of cyberspaces.
I 197
Cyberspace will open up three important choices in the context of intellectual property: whether to allow intellectual property in effect to become completely propertized (for that is what a perfect code regime for protecting intellectual property would do); and whether to allow this regime to erase the anonymity latent in less efficient architectures of control; and whether to allow the expansion of intellectual property to drive out amateur culture. These choices were not made by our framers. They are for us to make now.
I 283
Spaces like Second Life richly control the life of people playing there. Indeed, the whole objective of playing there is create the impression that one is there. These, again, are the sorts of places I call cyberspace. Cyberspace is very different from life on a bill-paying website, or on a site holding your e-mail. Code controls these, too. But the control, or sovereignty, of those sites is distinct from the control of Second Life. In Second Life, or in what I’ve defined to be cyberspace generally, the control is ubiquitous; on a
I 284
bill-paying website, or on what I’ve called the Internet, the control is passing, transitory. Interestingly, there is an important dynamic shift that we’ve already identified, more in thinly controlling spaces than thick. This is the preference for code controls where code controls are possible. Think again about the bill-paying website. It is of course against the law to access someone’s bank account and transfer funds fromthat account without the authorization of the account owner. But no bank would ever simply rely upon the law to enforce that rule. Every bank adds a complex set of code to authenticate who you are when you enter a bill-paying website. Where a policy objective can be coded, then the only limit on that coding is the marginal
cost of code versus the marginal benefit of the added control. But in a thickly controlling environment such as Second Life, there’s a limit to the use of code to guide social behavior.
I 285
Democracy/cyberspace/Castronova/Lessig: the single most interesting nondevelopment in cyberspace is that,again, as Castronova puts it, “one does not find much democracy at all in synthetic worlds.” (3)
I 288
David Post: Communities in cyberspace, Post argues, are governed by “rule-sets.”We can understand these rule-sets to be the requirements, whether embedded in the architecture or promulgated in a set of rules, that constrain behavior in a particular place.
I 307
Cyberlaw/internet law/international law/Lessig: if you’re offering Nazi material, and a French citizen enters your site, you should block her, but if she is a U.S. citizen, you can serve her. Each state would thus be restricting the citizens of other states as those states wanted. But citizens fromits nation would enjoy the freedoms that nation guarantees. This world would thus graft local rules onto life in cyberspace.
I 308
Each state […] has its own stake in controlling certain behaviors, and these behaviors differ. But the key is this: The same architecture that enables Minnesota to achieve its regulatory end can also help other states achieve their regulatory.
I 309
An ID-rich Internet would facilitate international zoning and enable this structure of international control. Such a regime would return geographical zoning to the Net. It would reimpose borders on a network built without those borders.[…] To those who love the liberty of the original Net, this regime is a nightmare. […] Of course, my view is that citizens of any democracy should have the freedom to choose what speech they consume. But I would prefer they earn that freedom by demanding it through democratic means than that a technological trick give it to them for free.[…] This regime gives each government the power to regulate its citizens; no government should have the right to do anything more.
1. See Katie Hafner and Matthew Lyon,Where Wizards Stay Up Late: The Origins of the
Internet (New York: Simon and Schuster, 1996), 62–63.
2. Harold Smith Reeves, “Property in Cyberspace,” University of Chicago Law Review 63
(1996): 761.
3. Castronova, Synthetic Worlds, 207.

Lessig I
Lawrence Lessig
Code: Version 2.0 New York 2006ff

Internet Law
Internet Law Lessig I 307
Cyberlaw/internet law/international law/Lessig: if you’re offering Nazi material, and a French citizen enters your site, you should block her, but if she is a U.S. citizen, you can serve her. Each state would thus be restricting the citizens of other states as those states wanted. But citizens from its nation would enjoy the freedoms that nation guarantees. This world would thus graft local rules onto life in cyberspace.
I 308
Each state […] has its own stake in controlling certain behaviors, and these behaviors differ. But the key is this: The same architecture that enables Minnesota to achieve its regulatory end can also help other states achieve their regulatory.
I 309
An ID-rich Internet ((s) a structure that does not permit much anonymity) would facilitate international zoning and enable this structure of international control. Such a regime would return geographical zoning to the Net. It would reimpose borders on a network built without those borders.[…] To those who love the liberty of the original Net, this regime is a nightmare. […] Of course, my view is that citizens of any democracy should have the freedom to choose what speech they consume. But I would prefer they earn that freedomby demanding it through democraticmeans than that a technological trick give it to them for free.[…] This regime gives each government the power to regulate its citizens; no government should have the right to do anything more.
I 310
Liberty depends on the regulation remaining expensive. […] There is both a surprisingly great desire for nations to embrace regimes that facilitate jurisdiction-specific regulation and a significant reason why the costs of regulation are likely to fall. We should expect, then, that there will be more such regulation. Soon. The effect, in short, would be to zone cyberspace based on the qualifications carried by individual users. It would enable a degree of control of cyberspace that few have ever imagined. Cyberspace would go from being an unregulable space to, depending on the depth of the certificates, the most regulable space imaginable.
I 312
The problems that cyberspace reveals are not problems with cyberspace. They are real-space problems that cyberspace shows us we must now resolve—or maybe reconsider.
I 323
Jean CampVsLessig: Jean Camp, a Harvard computer scientist who taught in the Kennedy School of Government, said that I had missed the point. The problem, she said, is not that “code is law” or that “code regulates. LessigVsVs: Of course, for the computer scientist code is law. And if code is law, then
obviously the question we should ask is:Who are the lawmakers?
I 324
But to a lawyer, both Camp and I, throughout this book, have made a very basic mistake. Code is not law, any more than the design of an airplane is law. […] When we lawyers tell the Jean Camps of the world that they are simply making a “mistake” when they bring the values of public law to code, it is rather we who are making the mistake.Whether code should be tested with these constraints of public value is a question, not a conclusion. It needs to be decided by argument, not definition.
I 328
Does this mean that we should push for open rather than closed code? Does it mean that we should ban closed code? (See Code/Lessig).
I 337
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 RecordedMusic Sales” (Harvard University, Job
Market Paper, 2004.

Lessig I
Lawrence Lessig
Code: Version 2.0 New York 2006ff

Internet Law Negroponte Lessig I 330
Internet Law/Cyberlaw/Negorponte: As Nicholas Negroponte puts it, “Nations today are the wrong size. They are not small enough to be local and they are not large enough to
be global.” (1)

1. See Nicholas Negroponte, Being Digital (New York: Alfred A. Knopf, 1995), 18, 238.


Negropo I
Nicholas Negroponte
Being Digital New York 1996


Lessig I
Lawrence Lessig
Code: Version 2.0 New York 2006ff
Internet Law Pariser I 249
Online Rights/Pariser: while it is illegal to use a photo of Brad Pitt to sell a wristwatch, Facebook may use our names to sell one to our friends.

Pariser I
Eli Pariser
The Filter Bubble: How the New Personalized Web Is Changing What We Read and How We Think London 2012