There’s an interesting discussion going on over at Cato.org about Larry Lessig’s book Code (and Other Laws of Cyberspace), celebrating the 10th anniversary of its publication. Code’s a very important book, in my view (and, I think, objectively speaking, in the view of pretty much everyone involved in thinking about law and regulation on the Net). Lessig got a lot of things right in Code ; most fundamentally, the idea around which much of the book is organized - that “code is law” on the global network – is a very rich one, and even a profound one, and it has been central to a great deal of very productive thinking in the field. Code got some things wrong, too – most fundamentally, when Lessig argued that it is fruitless (and perhaps even dangerous) to talk about cyberspace's “nature.” [If I could explain my reasons for saying that he was wrong about that without having to write a whole book, I would do so; but I can’t, so you’ll just have read the book if you’re interested].
I’ve written a fair bit about Code, in my book and elsewhere, and I won’t repeat what I’ve already said – in fact, one of the interesting things about Code and its role within the cyberlaw debates of the last decade is that the book actually helped move the conversation forward. Lessig positioned the book as an attack on, and a direct response to, the “cyber-libertarians.” The “cyber-libertarians,” in turn – myself among them – took him to task for that. But after duking it out for a while, it turns out that there wasn’t as much there as we thought: that debate isn’t where the interesting action is, in cyberspace. There’s plenty to argue about, regarding cyberspace law and policy; but arguing about the labels isn’t too useful or productive. That’s precisely the interesting thing about cyberspace; as Lessig puts it, “what drew me to cyberlaw originally was that it (originally) obscured politics. It confused intuitions. And in that confusion, people were forced to think. No crude shorthands. No summary judgment based upon a supposed set of affinities with debates almost a century old.”
So when Adam Thierer, defending the cyber-libertarian position, writes:
“Thus, at risk of repeating myself, I must underscore the key principles that separate the cyber-libertarian and cyber-collectivist schools of thinking. It comes down to this: The cyber-libertarian believes that ‘code failures’ are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions. Moreover, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those response(s).”
Lessig can respond: I completely agree.
OK, then; we’re all Jeffersonians, now. (“We are all republicans. We are all federalists.”] We all agree: voluntary, spontaneous, bottom-up, marketplace responses are better than coerced, top-down, governmental solutions – except when they’re not. That is simultaneously both a useless tautology and an important point of consensus. What do we do about copyright law? Should we preserve the ability to speak anonymously on the Net? Should end-to-end network neutrality be preserved? How? We can just assume that we are all looking for the “voluntary, spontaneous, bottom-up” solution – but what is it? What does the voluntary, spontaneous, bottom-up solution to the copyright problem, or the anonymity problem, look like? What is the “problem” we’re trying to solve? Where do we want the system to end up?
Those are the interesting debates, in cyberlaw. There’s plenty to disagree about, and there are lots of heated and important arguments, about what kind of copyright law we should have, or how much anonymity needs protection, or whether end-to-end is valuable in and of itself. The line dividing the opposing viewpoints, though, isn’t captured by the labels; the positions that are staked out don’t fall out along libertarian vs. collectivist lines. Plenty of libertarians, and plenty of collectivists, can agree (if perhaps for different reasons) that copyright law needs a radical overhaul (and there are libertarian and collectivists a-plenty among those who argue that it does not).
That’s good news, I think, because it means that (rough) consensus on particular issues, and specific problems, might actually be achievable – maybe even on the required global scale. Libertarian vs collectivist, Jeffersonian vs Hamiltonian – issues that align themselves clearly along these lines never can get resolved by consensus, because people disagree, quite fundamentally, about these principles. Real change is made possible when those lines don’t define the debate anymore.