When Code Isn\u27t Law

When the Supreme Court upheld extended copyright terms in Eldred v. Ascroft, many Internet activists called for renewed political action in the form of appeals to Congress or even a campaign to amend the Constitution. But others suggested a very different course: They argued that it would be wiser to forgo institutions controlled by the powers of the past, and to return instead to the keyboard to write the next generation of lawbusting code. In the words of one observer, tech people are probably better off spending their energy writing code than being part of the political process because [t]hat\u27s where their competitive advantage lies. The idea that computer code may be emerging as a meaningful instrument of political will remains one of the most evocative and poorly understood propositions in the study of law and technology. The prominent effects of computer code have made it difficult to ignore the fact that code can be used to produce regulatory effects similar to laws. Hence, the popularity of Professor Lawrence Lessig\u27s idea that (for computer users at least) code is law. But what this really means remains extremely vague. The subject remains the focus of grand speculation, ranging from claims that computer code will arise as a kind of utopian sovereign to improve on perceived failures of state regulation, to concerns that code may be used to negate basic freedoms, and, of course, the claim that nothing of legal novelty has happened, or perhaps ever will happen