From the October/November issue of CEI UpDate

Code and Other Laws of Cyberspace

Lawrence Lessig

Basic Books · 1999 · 240 pages · $30.00

Larry Lessig is a star professor at Stanford Law School, to whence he just moved from Harvard. Code and Other Laws of Cyberspace, his examination of the issues of law and policy created by the computer and communications revolutions, must be one of the best blurbed works in recent memory: “the James Madison of our time”; “the nation’s most original thinker in the new field of cyberlaw”; “an astonishing achievement”; and so on for three full pages of quotations.

All this praise sets the reader up for a surprise: While the blurbs create the impression that the book breaks new ground, in fact it rehashes conventional wisdom and suggests no new resolutions of the dilemmas created by cyberspace. The issues it identifies are the common grist of a thousand articles over the past decade, and its insights are neither startling nor unique.

For example, Lessig emphasizes that computer code is as important as legal code in defining the possibilities of cyberspace. Well, yes. But the impact of technological possibility on the development of human society and its laws is a familiar tenet of historiography, and the idea that the computer provides one more example is hardly startling.

When the book turns to specifics, it actually ignores this basic fact about the interaction of law and technology. To wit: The discussion of fair use of copyrights takes the existing structure of the law as inalterable. In fact, current rules are largely based on the transaction costs involved in obtaining permission to use materials, and as these transaction costs change fair use should be re-thought.

The book falls short in other ways, too. The discussion of why some people distrust governments is superficial, as is the treatment of campaign finance issues. The defense of the open source movement (a main agenda of its author) ignores the hard problems of free riders and collective action. And so on.

Cyberspace needs a good discussion of intellectual property, regulatory choice, technological determinism, and new forms of social and economic organization, but this is not it.