James Grimmelmann builds on Larry Lessig's 'code is law' thesis in a recent Yale Law journal paper. He agrees with Lessig that software regulates behaviour but it does so in subtly different and important ways to physical architecture.
Software is rule based
Software need not be transparent
Software applies the rules whether people engaged in the activity want it to or not i.e. there's no equivalent to blanketly ignoring the idiotic company procedure
Software has bugs and can go wrong (and can get hacked)
He goes on to argue that these characteristics make software (or code) suitable for regulating electronic marketplaces like eBay but unsuitable for regulating access to copyrighted material (ie eBay good, drm no good). The [very clever - one of those 'I wish I'd thought of that' sequences] goes like this:
Both eBay and drm rely on rules. So much for item one. Then we start getting divergence. On eBay and online markets generally the transparency problem with software is mitigated because the parties involved have clear access to the terms of the deal. DRM's lack of transparency causes problems, however. For example, one eboook version of the US Constitution prevents the owner from printing it out. And so the analysis continues.
Excellent paper. Well worth a read for netlaw enthusiasts.
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