This document discusses theories of cyberspace regulation proposed by Lawrence Lessig. Lessig argues that four factors regulate behavior in cyberspace: norms, markets, law, and code (or architecture). Code plays a particularly important role as it determines what actions are possible or impossible. Lessig proposes reforms to copyright law and policies promoting open code to balance control and innovation on the internet. Critics argue surveillance should also be considered a form of regulation and that "architecture" is a more accurate term than "code." The document examines issues around balancing control, privacy, and innovation in cyberspace.

1. Theories of cyberspace
regulation
The problem: Cyberspace is a different
context from the physical world.
We may need to rethink how regulation of
behaviour works.
The question: What regulates?
What different forms of regulation are there?

2. Forms of regulation
Lawrence Lessig's answers:
4 things regulate - Norms; Markets, Law and 'Code'
(environment)
Law also regulates the other 3 - indirect regulation by
law
Effectiveness is very different in cyberspace
Lessig's main lesson: Consider all 4 and how
they interact
Criticism: Surveillance is a 5th form of regulation

4. 1 Norms, morality and
self-regulation
Real space norms cause disapproval and
guilt
Cyberspace has its own 'netiquette'
Examples: using CAPITALS; attachments
sent to lists
Effectiveness in cyberspace increased by
surveillance
The morality of the goldfish bowl

5. 2 Markets
Market constrains work in cyberspace
Unpopular 'code' can perish
Selling region-blocked DVD players in HK?
Surveillance damaged DoubleClick's share
price
Prices can affect norms
Are CD / DVD prices considered fair?
Is DVD region blocking fair?

6. 3 'Code’ (environment)
In real space - Natural and built environment -
Bank robberies - Laws and morality help; but walls,
locks, glass & guns are better
Immigration - Distance and lack of borders
Easy to ignore, often because unchangeable
In cyberspace - ‘Code’ is the equivalent
Can control access, and monitor it
Determines what actions are possible and impossible
‘A set of constraints on how one can behave’ -Lessig
The walls, bridges, locks and cameras of cyberspace

7. ‘Code' or 'architecture'?
'Code' is cute but confusing
East coast code (Washington) vs West coast code
(Redmond)
The US Code vs hackers' code
'Architecture' is more accurate
Cyberspace is more than software
Protocols (non-material artefacts)
Hardware (material artefacts)
Biology and geography (natural environment)
'Code' is part of cyberspace architecture

8. 4 Law - direct and indirect
Law increasingly directly regulates
cyberspace behaviour
But it indirectly regulates the other 3
constraints
Legal regulation of architecture is the key
It is the most effective strategy for
governments
It is also vital for limiting private power

9. Effective regulation
Finding the best mix of constraints
How to prevent discrimination?
Prohibition; education; building codes
How to stop people smoking?
Age limits; prohibited places; education; warnings;
taxes

10. Surveillance: 5th constraint
A relationship of knowledge
Knowledge by the watcher of those watched
Foucault's 'discipline'; Bentham's Panopticon
Facilitated by architecture, but not part of it
Facilitates observance of norms and laws, but
independent
More important in cyberspace regulation
The normal context of identification is
removed

11. Law modifying
surveillance
Law acts indirectly to modify surveillance
Data protection laws protect privacy
Eg Personal Data (Privacy) Ordinance
Laws mandate compliance
eg smart ID card
Laws prevent circumvention
eg DRMS anti-circumvention

12. Cyber-regulation is different
Cyberspace architecture is mainly artefact
Greater immediacy of application
Cyberspace architecture is often self-
executing
Most architecture has high plasticity
Its easier to change cyberspace
Architecture's legitimacy is questionable
We should ask the pedigree of any regulation
What should private companies control?

13. Example: Copyright, DRMS
and anti-circumvention
DRMS - The new paradigm for content
protection
Copyright law was the old paradigm
Content owners want to control 3 parties
Content consumers
Consumer hardware manufacturers
Content intermediaries
(DRMS diagram modified from Bechtold)

14. Digital
content
owners
Content
intermediaries
(licensed)
Pirate distributors
Publishers, retailers,
DRMS intermediaries,
theatres, TV, etc
Consumer
hardware
manufacturers
(DRMS
licencees)
Circumvention device mfgs;
unlicensed hardware mfgs.
Content
consumers
(purchasers)
Illegal consumer copiers;
borrowers, renters etc
Contract
Technological measures
Technology protection legislation
Content protection legislation

15. Importance of 'commons'
Lessig's argument in ’The Future of Ideas'
The Internet is an 'innovation commons’
It is in danger of losing that character
'Commons' - Resources from which no-
one may be excluded - the 'free'
Commons are not necessarily 'tragic':
Not if they are non-rivalrous (eg protocols)
Not if you control over-consumption
Both require sufficient incentives to create

16. Internet as an 'innovation
commons'
Benefits of the Internet as a commons
Benefits to freedom (first book)
Benefits to innovation (second book)
Must consider each Internet 'layer'
Physical layer, 'code' layer (protocols and
applications) and content layer
Each could be a commons or controlled
Currently, each layer is partly controlled
Changes imperil the mix providing innovation

17. E2e: 'code' layer commons
e2e ('end to end') network design
Philosophy of the original Internet designers
'Smart' features are at the margins
Anyone can add a new application to the net
Network controllers do not decide
applications allowed
Innovation irrespective of the wishes of
network owners
'Code' helps determine the level of innovation

18. Lessig's recipe for
innovation (1)
1 'Physical' layer reforms
Spectrum allocation for wireless Internet
2 'Code' layer reforms
Government encouragement of open code
US government uses proprietary programs
[The PRC government has done this already]
Require 'code neutrality' by carriers, by
(a) Banishment from providing Internet services; or
(b) Requirement to provide open access; or
(c) No TCP/IP without observing e2e

19. Lessig's recipe for
innovation (2)
3a Content layer - Copyright law reforms
Short renewable terms
Eldred v Ashmore: stop the term being extended
[Shorter or renewable terms would breach US
treaty obligations]
For software, 5 year term only, renewable
once
A defence for new technologies
'No breach if no harm to copyright owner'
Compulsory licensing of music for file-sharing

20. Lessig's recipe for
innovation (3)
3a Content layer - Copyright law reforms
(cont)
Tax benefits for putting works into the public
domain
A 'right to hack' DRMS to protect fair use
('Cohen theorem')
Stop contract law undermining copyright law
3b Content layer - Patent law reforms
Moratorium on patents for software and
business methods

21. References(1)
Works by Lawrence Lessig
• Lawrence Lessig 'The Law of the Horse: What Cyberlaw
Might Teach' (PDF only) (1999) 113 Harvard Law
Review 501 (drafts were available from 1997)
• Lawrence Lessig Code and Other Laws of Cyberspace
Basic Books 1999
• Lawrence Lessig 'Cyberspace's Architectural
Constitution' (June 2000, Text of lecture at www9,
Amsterdam)
• Lawrence Lessig The Future of Ideas: The Fate of the
Commons in a Connected World Random House, 2001
• See his home page for links to these and others

22. References(2)
Works by others
• James Boyle 'Surveillance, Sovereignty, and Hard-Wired
Censors' (1997)
• Graham Greenleaf 'An Endnote on Regulating
Cyberspace: Architecture vs Law? (1998) University of
New South Wales Law Journal Volume 21, Number 2
• Stefan Bechtold 'From Copyright to Information Law -
Implications of Digital Rights Management'. Workshop
on Security and Privacy in Digital Rights Management
2001. 5. November 2001, Philadelphia, USA.
• See the Timetable for further reading