When Code Isn't Law

Abstract

The prominent effects of computer code have made it difficult to ignore the fact that code can be used to produce regulatory effects similar to laws. Hence, the popularity of the idea that (for computer users at least) "code is law." But the idea remains extremely vague. Most problematically, none of these understandings of code and law explains the central issue of compliance. Specifically, they do not explain the shifting patterns of legal compliance in the 2000s. Explosions of non-compliance in areas such as copyright, pornography, financial fraud, and prescription drugs fuel the sense of a legal breakdown, yet the vast majority of laws remains unaffected. This Article proposes a new and concrete way to understand the relationship between code and compliance with law. I propose to study the design of code as an aspect of interest group behavior as simply one of several mechanisms that groups use to minimize legal costs. Code design, in other words, can be usefully studied as an alternative to lobbying campaigns, tax avoidance, or any other approach that a group might use to seek legal advantage. The important case of peer-to-peer ("P2P") filesharing, explored in depth in this Article, illustrates the possibility of using code design as an alternative mechanism of interest group behavior. The approach aims to separate two different aspects of code's relationship with law. The first is Lessig's concept of a regulatory mechanism that computer code can substitute for law or other forms of regulation. The second aspect is as an anti-regulatory mechanism tool to minimize the costs of law that certain groups will use to their advantage.