(But of course I am not a man).
Polk Wagner has written some worthwhile papers on law and technology. I heartily recommend those that support points on which we agree, such as The Perfect Storm: Intellectual Property and Public Values, 73 Fordham L. Rev. 1107. 2005. This paper notes how the de facto balance between copyright and fair use has shifted over the years, and that in key respects copyright has lost, not gained, ground, and also noting that fair use is far from being the only key conceptual or practical limit on copyright.
But his paper “On Software Regulation,” is a bit muddled. It may not be Professor Wagner’s fault, for the article was written following up on the “code is law” meme, which is at bottom a rather unhelpful observation. If “code is law” then so is everything else—the laws of physics, architecture, road design, engineering, biology, the laws of physics, religion, education, insect swarming patterns, families, and so on. All of these things affect human behavior and shape and regularize society. My complaint with “code is law” is not that is not true, in a sense—but that it is very unhelpful in understanding any real problem. Many institutions and systems affect human behavior, but they do so in different ways. It is understanding the differences that will be the key to resolving any serious human problems.
Consistent with this, Professor Wagner begins by noting that “code is law” tells us nothing about how code and law relate. But he restates the view that software code constitutes regulation. Software “regulates” in the sense that it makes human conduct more regular and affects the public. But is it really much like “regulation” enacted through a legal process by Congress or the FCC, or even like law described by courts? Certainly not. But the paper’s description of the differences is oddly incomplete.
The most significant difference the paper notes is that software development lacks involvement by third parties. This a variant of the broader argument that private sector communities such as markets lacks accountability, especially compared to public sector processes like voting or public opinion polls. This argument appears in some work by the Tofflers, by Larry Lessig, and now, apparently, in Professor Wagner’s paper. Unfortunately, the argument stems from a greatly idealized view of public sector processes, and misses some key economic insights into private ones. Countless studies of the political process shed light on ways in which even representative democracies can and do fail to represent the public. By comparison with the political process, markets are more, not less, accountable. James Buchanan outlines one key argument very effectively. In the voting place, one who supports the losing candidate not only has expended his vote and gotten nothing he wants; but he must accept the candidate supported by the winners. In the marketplace, a buyer who does not succeed in finding exactly the product he wants (a hot pink bulldozer, for example) keeps his dollar and can use it to buy a second-best good of his own choosing. Competition is imperfect, but even so consumers have many real choices and private firms that do not serve them reasonable well can and do fail. The same is rarely true of public sector institutions, particularly regulatory institutions like the FCC. Our carefully constructed systems of accountability for the public sector, such as voting and public comment periods, do not make the public sector more accountable than the private sector, but represent a desperate attempt to ape the generally much more effective forces of accountability that operate in markets.
It is true, though, that law has an advantage over markets in that it is only at the level of general binding rules that some types of public problems can be solved. A commitment to free speech, for example, can only be made at a constitutional level; a commitment to markets is cemented at the legal level by general prohibitions against theft—for as individuals making decisions in the moment we might be tempted to snitch stuff if we thought we could get away with it. (This is more formally referred to as the difference between constitutional interest and action interest, our self-interest in choosing a rule for the whole group, and our self-interest as regards only ourselves, in the short run.) But unfortunately, it is very hard to limit the legal system to solving problems that it is well suited to solving. Actors in regulatory systems are always pressured to act in ways that provide private, not truly public, benefits. On the whole it makes little more sense to complain that software does not incorporate public values than to complain that law does not incorporate private ones (which software does very well).
With some of the arguments in the paper I partially agree. It characterizes software as dynamic, but also as inflexible. Software seems inflexible in the sense that individual cookies stored as I surf along the web cannot make decisions and adapt to my decisions. And the economics underlying software are not always flexible—due to the scarcity of resources one could not easily, for example, rip protocols out of the Internet root and branch and redesign it overnight. But software is certainly flexible in many other ways. It can be designed and redesigned, deployed and redeployed and uninstalled, tailored to many different uses or a few. On the whole it is odd to describe software code, which the paper recognizes as dynamic and constantly changing, and more likely to alter our lives and even remake the Internet in various ways we cannot now predict, as “inflexible.” One could not remake the English language overnight very easily either, and it has its limits, but I would hesitate to describe it as “inflexible” especially as compared to law.
All in all, one might think, reading the paper’s description of software as a sort of top-down, rigid imposition, that it means, well, law. But, no, this is supposed to be a description of software. In describing how law and software interact, and concluding that law is better… well, it is all very odd. Often, it is silly to fuss over terminology, but in this case if Professor Wagner was correct in noting that “code is law” obfuscates key issues he ought to have been aware that a paper on the theme of “software is regulation” is not likely to clarify them.
If you would like to read more by Prof Wagner, try these:
Patent Portfolios (with Gideon Parchomovsky), 154 U.Pa.L.Rev. 1. 2005 (noting that scholars who focus on the value of individual patents may overlook key aspects of their value);
The Federal Circuit and Patentability: An Empirical Assessment of the Law of Obviousness, with Lee Petherbridge, from 2007 (an actual empirical study which provides an interesting counterweight to the assumption, often made, that the Federal Circuit favors patent owners in rulings on whether a patent is invalid due to obviousness--though it suffers by failing to note that if the Federal Circuit's rulings are biased, it will affect which cases are selected for litigation).
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