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Previously in Digital Culture:

"Exquisite Source," by Harvey Blume (August 12, 1999)
Heads turned in June when the Linux operating system was awarded first prize by the judges of an international art festival. How far, one wonders, can the open source model go?

"With Liberty and Justice for Me," by Mark Dery (July 22, 1999)
Is the Internet giving ordinary people more control over their lives? An e-mail exchange with Andrew L. Shapiro, the author of The Control Revolution.

"Bits of Beauty," by Harvey Blume (June 3, 1999)
Yes, it's art. Now what is there to say about it? An assessment of the first-ever Cyberarts Festival in Boston, where art criticism is forced to play catch-up with technology.

"The MP3 Revolution," by Charles C. Mann (April 8, 1999)
The recording industry may indeed have something to worry about. If the much-talked-about digital format (or something like it) catches on, we could be carried back into our musical and cultural past.

See the complete Digital Culture index.

More on Technology and Digital Culture in Atlantic Unbound and The Atlantic Monthly.

Join the conversation in the Technology & Digital Culture conference of Post & Riposte.
The Unacknowledged Legislators of the Digital World

In his new book, Code, the cyberlaw expert Lawrence Lessig offers a disconcerting vision of the Internet's future. Perhaps too disconcerting

by Charles C. Mann

December 15, 1999

Because much of this review quarrels with Lawrence Lessig's new book, I must say at the outset that Code and Other Laws of Cyberspace is the most lucid and cant-free discussion of the Internet that I have encountered in some time. Lessig is the Harvard Law School professor who was asked by Judge Thomas Penfield Jackson to provide legal and technical advice in the Microsoft trial. Code makes one sorry that Microsoft got him kicked off the case; it also makes one realize why the company did it.

The Values of Code
(and Code)

Lawrence Lessig responds to Charles Mann's review in an e-mail interview with Atlantic Unbound editor Wen Stephenson.

When the nineteenth-century biologist T. H. Huxley heard of the idea of natural selection he exclaimed, "How extremely stupid not to have thought of that." I had a similar reaction when reading Code. Its central insight is so patently correct as to seem obvious (after I'd read it, of course). But Lessig ventures beyond that insight to predict how things will turn out for e-commerce, intellectual property, online privacy, and free speech on the Net. Although his scenario can't be ruled out, it seems oversimplified -- making the book occasionally as frustrating as it is enlightening.

In our society, Lessig says, human action is constrained by laws, social norms, economic factors, and what he calls "architecture" -- the physical conditions that govern existence. Laws and norms can be dismissed if someone is willing to suffer the legal and social consequences. Market constraints -- that is, prices -- can be ignored by anyone with enough money. But nobody can ignore gravity. In other words, people can build a house with transparent bathroom walls if they are willing to put up with visits from the police, complaints from the neighbors, and the cost of thick glass. But they cannot build a house that stands counter to physical law.

Laws, norms, and markets exist on the Internet, too, though sometimes only in feeble form. The architecture of cyberspace, however, is entirely constructed. Unalterable physical circumstance plays almost no role. The properties of this architecture, Lessig points out, are set in the code written by programmers. As a result, they are susceptible to change -- the code can always be rewritten.

To Lessig's way of thinking, the code is being rewritten -- by business and government. Corporate interests want to make cyberspace safe for e-commerce; nations want to ensure that their sovereignty isn't flouted there. Unfortunately, the underlying software of the Internet was not written with either capitalism or nationalism in mind. To borrow a phrase from the Internet pioneer Padgett Peterson, the Net was designed for one purpose alone: "delivering the mail." And, indeed, it delivers the mail with amazing efficiency. But it pays no attention to the identity or physical location of the sender, the identity or physical location of the receiver, or what is in the mail. As a result, the architecture of the Net makes it relatively easy to be anonymous, to pretend to be someone else, to tamper with messages, and to intercept their contents. Business dislikes this, because transactions are difficult to verify -- sellers can't be sure of buyers' identities, or if they are authorized to make purchases, or even if orders are real. Government, too, is unhappy, because the citizenry cannot easily be kept from doing things online that they aren't allowed to do offline -- downloading child pornography, gambling on Web sites in distant nations, indulging in scurrility and slander, reading anti-government literature. Thus economic and political forces will push to lay new code atop the old code which permits identities to be verified, transactions to be monitored, and access to be controlled.

In Lessig's scenario, it is likely that this new code will issue users a kind of digital ID card, except that the ID card will do a lot more than list names and addresses. These certificates, to give them their proper name, will become vehicles for tracking their possessors' every move online. Because access to Web sites can be conditional upon the information in a Net user's digital ID card, "cyberspace would go from being an unregulable space to, depending on [the exact use of the certificates], the most regulable space imaginable." Indeed, Lessig predicts that the Internet, hailed as inherently free by its most fervent advocates, will become a "structure of international control."

These changes can and should be resisted, Lessig believes. But he thinks that a happy outcome is unlikely, partly because the contemporary distaste for government -- an attitude manifest in the libertarian rhetoric of so many Internet advocates -- casts suspicion on the very thought of collective decision making. "We have lost the idea that ordinary government might work," Lessig laments, "and so deep is this despair that not even government thinks the government should have a role in governing cyberspace." Alas, if the government stays out, other forces will operate freely. "We will watch as important aspects of privacy and free speech are erased by the emerging architecture of the panopticon," Lessig writes, "and we will speak, like modern Jeffersons, about nature making it so -- forgetting that here [in cyberspace], we are nature. We will in many domains of our social life come to see the Net as ... something we must simply accept, as it invades and transforms our lives."

Lessig has done a public service by highlighting this alarming prospect. But he has, I believe, underestimated both the lability of code and the complexity of motive in government and business. If these are taken into account, the dark picture that Lessig paints may not be as inevitable as he thinks.

Code, in Code, almost always refers to "software." But code also exists in hardware -- an example is the chip in the electronic ignition found in most new automobiles. In a footnote, Lessig admits that his argument would change "if more code were burned into hardware rather than existing as software." But the distinction between soft code and hard code is more than a footnote. As a rule, soft code can be modified or avoided by any knowledgeable person with access to a computer. But to get around hard code usually means modifying circuit boards and microprocessors, which requires expensive, complicated equipment.

From Atlantic Unbound:

Roundtable: "Life, Liberty, and the Pursuit of Copyright?" (September 1998)
What is at stake in the battle over intellectual property in the information age? Charles C. Mann, John Perry Barlow, Lawrence Lessig, and Mark Stefik join in a special Atlantic Unbound roundtable discussion.

Web Citations: "Hey Ho, GIFs Must Go!" (November 3, 1999)
Charles C. Mann contemplates Burn All GIFs Day, perhaps the first political protest ever staged because of an algorithm.

The difference is especially important for encryption. Lessig argues that it is only "a slight exaggeration" to say that "encryption technologies are the most important technological breakthrough in the last one thousand years." (The claim is startling: what about antibiotics? the quantum theory of electromagnetism? the Haber-Bosch process, which makes the synthetic fertilizers that now feed the world?) One of his fears is that online intellectual property -- music, films, book reviews -- will be encrypted in such a way as to stifle legitimate copying. As Lessig notes, I can copy -- that is, quote -- sentences from his book and reproduce them in a critical article, even if he doesn't like it. In technical terms this is known as the right of "fair use." The free exchange of ideas depends on it. I can also sell my copy of Code to a friend, even if the author wishes my friend would buy it from the bookstore. This is called the doctrine of "first sale." First sale is one way of ensuring that intellectual-property holders don't fence off their works from people -- a kind of equal-opportunity law. Fair use and first sale are among the means by which intellectual-property laws try to balance the incentives for creators to produce new works with the goal of letting the greatest possible number of people benefit from those works.

As Lessig says, "when intellectual property is protected by code, nothing requires that the same balance be struck." That is, "Nothing requires the owner to grant the right of fair use" or to permit resale under the doctrine of first sale. How do owners stop fair use? They change the code. Programmers use it to slap restrictions on the uses of their software -- Microsoft is notorious for this, and one can infer Lessig's lack of sympathy. Studios could sell music online, but in an encrypted form that won't let customers copy it onto a cassette for the car -- a form of fair use that is now widespread. When Lessig writes Code II in 2010, he will be able to sell it online for electronic books, but in an encrypted form that won't let readers print out individual pages -- a form of fair use that is now available to anyone with a photocopy machine. The examples are endless, and Lessig, who believes in the political and social value of an intellectual commons, is properly dismayed by them.

Note, though, the hidden assumption -- that the encryption will succeed in its purpose. Ordinarily, encryption is meant to keep secrets. When a spy encrypts a message to a superior, both sender and receiver usually wish to ensure that the contents remain unknown to the world. But when people buy recorded music, they don't want to maintain a single, secure copy. They want to make a copy for the car and a copy to give to a friend and, God help us, a copy to post on the Web for anonymous strangers. They have every incentive to find a way to work around the encryption. In addition, every time the digital music is played, it must be decoded -- that is, it must exist somewhere on the listener's computer in its original form. In this manifestation, as Bruce Schneier, a cryptographic expert at Counterpane Internet Security, has noted, data are always vulnerable to copying. Somewhere, somehow, someone will have the wish to intercept the music and the knowledge necessary to grab it -- and to e-mail the result to a few thousand close personal friends. (The same is true for movies, photographs, magazine articles, or any other kind of digitized intellectual property.)

Intellectual-property owners can make the job much harder by insisting that the encryption be controlled by the hardware. If music were encoded everywhere in the system until it was finally decoded by a chip in the speaker of the playing device, this would be tough (though not impossible) to crack. But why should hardware manufacturers help out the studios? Their customers want to make copies -- and products that let them do so will have an advantage in the market over products that don't. Even as the studios scream about pirated music on the Internet, at least a dozen hardware companies are producing players especially designed for such music.

In general, Lessig sees business as a monolithic force driving the Net toward more regulation. But as the music example shows, market forces push both ways. For every company that can make money exerting control, there's another that wants to profit from anarchy. (Lenin was right about the last capitalist being willing to sell him the rope to hang the second-to-last.) The perfect awfulness of perfect encryption may be foiled by the perfect greed of the firms that make the necessary equipment.

The same is true of governments. Look at the way the United States is pushing China to open itself to the Net -- partly out of a belief in free speech, one assumes, but also out of a belief that a less-monolithic China is also a less-threatening China. Soon, one suspects, the Grand Caymans and Panama will offer themselves as Net havens -- partly out of a belief in free speech, perhaps, but also as a way of attracting intellectual capital. People who want to preserve freedom of speech and privacy may find some odd allies.

Lessig is absolutely right to roll his eyes at the libertarian smugness of the Internet pundits, but his account of the battle lines and the weapons in each side's possession is too easy. For that reason, it may also be too dark.

Next Page: An e-mail exchange with Lawrence Lessig

Join the conversation in Post & Riposte.

More on Technology and Digital Culture in Atlantic Unbound and The Atlantic Monthly.

Charles C. Mann is a correspondent for The Atlantic Monthly and a frequent contributor to Atlantic Unbound. His article "Who Will Own Your Next Good Idea?" appeared as The Atlantic's September, 1998, cover story.

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