Lessig, Lawrence. The Law of the Horse: What Cyberlaw Might Teach, 113 Harv. L. Rev. 501 (1999)

Abstract

Cyberlaw taught us everything, actually. The year was 1999 and undergraduate media law professors across the country were hearing what was initially an astounding claim from their students: Illegally sharing and downloading music online were acts of free expression. For seasoned instructors at the time, the statement was initially a source of amusement. For those of us entering the academy, the claim was less surprising. Whatever was going on in this new thing called cyberspace, it would certainly never be the case that music lovers could indefinitely infringe on the copyrights of musicians and their publishers. Indeed, the legal histories of Napster and Grokster, two early music file sharing services that found themselves in frequent legal battles with music publishers, eventually proved the professors right. Infringers were sued, the services were punished, and new business models around online music were birthed. The law seemed to win. Or did it? When Larry Lessig, then a 38-year old law professor at Stanford University, published one of the most-cited and celebrated articles of his career, “The Law of the Horse: What Cyberlaw Might Teach,” and his book, Code and Other Laws of Cyberspace, the media law community seemed to take a collective deep breath. In one fell swoop, Lessig argued that something was fundamentally different for law in cyberspace, a shift so consequential that he felt compelled to take on not only Judge Frank Easterbrook of the United States Seventh Circuit Court of Appeals, who had declared that there was “no more a law of cyberspace than there was a ‘Law of the Horse,’” but also the growing