Code is Law? Assessing Architectural File Sharing Regulation in the Online Environment

• Author: Michael Filby
• Position: School of Law, University of Hertfordshire
• Pages: 81-103

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Michael Filby, LLB, LLM, MPhil

School of Law

University of Hertfordshire

Abstract: Western legislatures tend towards t he use of regulatory policies that

favour strong intellectual property rights over public access in the battle to regulate file

sharing. I t has be come apparent that the legislature is increasingly relying on code-based

regulation in order to detect infringement, to identify those infringing, and to enforce the

law through technical measures. T his paper will assess the efficacy of regulation by cod e in

the context of Lessig’s assertion t hat “code is law”, as applied to the file shari ng

community. The conclusion will reveal a sig nificant asymmetry between the intended

application of the regulator y influence of code and its de facto applicability in the online

environment.

1. Introduction

Western legislatures are increasingly tending towards the use regulator y policies that favour strong

intellectual property rights over public access in the battle to regulate file sharing. One of the ways in

which such policies are being implemented is through the i ncrease in the scope of the protections afforded

in the digital age, specificall y through the growing use of code-based regulation. T he civil and criminal

aspects of legislation largely o perate as legal regulation imposed at the c ontent level. But since t he WIPO

Treaty laid down obligations to protect digital rights management (DRM) a nd technical prevention

measures (TP Ms)

1

, the regulatory latitude has increased its reach be yond the scope of the content le vel

into the logical level. It has also become apparent that the legislature is increasingly re lying on code-

based regulation in order to detect infringement, to identi fy those infringing, and to enforce the law

through tec hnical measures. This paper will assess the efficacy of regulation by code in the context of

Lessig’s assertion that “code is law”, as applied to the file sharing community. The conclusion will reveal

a significant asymmetry between the intended application of the regulatory influence of code and its de

facto applicability in the online environment

2

.

2. Regulation Applied to the Institutional Ecology through Layering

The origins of the layers of regulation ca n be traced back to the seminal International Standards

Organization / Open Systems Intercon nection (ISO/OSI) depiction of layered architecture representative

of the networked environment. The model presents seven layers that are organised hierarchically and

depend upon one another in order to function. The seven layers, from top to bottom, are the application

layer, the presentation layer, the session layer, the transport la yer, the network layer, the data link layer

and the ph ysical layer

3

. Berners-Lee la ter demonstrated how the stack could be reformulated into a four-

layered model, namely (again, from top to bottom) the content layer, the software layer, the computer

1

This is embodied in the US by the Digital Millennium Copyright Act, and the UK by Arts 6 & 7 EU Copyright

Directive which led to the required protections being added to the CDPA.

2

Ba mbauer points out that “A generation of In ternet scholars has sought to apply Lessig’s Ne w Chicago School

modalities to regulatory problems. Yet, scholars have not acknowledged that these four forces are not merely ways of

regulating – they also describe ways to limit regulation”, at Bambauer DE, Orwell's Armchair (Research Paper No.

247, Brooklyn Law School 2011), 41. The assessment of the efficacy of regulation by code in this paper answers

Bambauer’s call by considering not only how the architecture of code is used to regulate, but also how it can be used

to circumvent constraint, detection and enforcement.

3

Comer DE, Internetworking with TCP/IP principles, Protocols and Architecture (4 edn, Prentice Hall 2004), 159.

Michael F

ilby

82

hardware layer and the transmission medium layer

4

. By refining the ISO/OSI model, Be rners-Lee

effectively condensed the varied technical functions underpinning the online environment into a stack of

software and hardware architectures that can more readily be considered in a regulatory context. The

content layer broadly describes the end-user experience from the perspective of a user of the internet

browsing the World Wide Web through a br owser window, whereas the software layer is indicative of the

internet protoco l that allows the World Wide Web to function

5

. The computer hardware is indicative of

the machines through which access is made and internet packets routed, whereas the transmission

medium roughly describes the “wired” telephone system to which terminals are connected to access the

internet

6

. Benkler refines the stack further still into a three-tiered environment

7

that he describes as the

institutional ecology of the networked infor mation environment

8

. The layers in Benkler’s stack start at the

top again with the content layer, which similarly encompasses the data and information that can be

typically accessed by a user on an internet -connected device. The software layer is repurposed as the

logical layer, but again encompasses the internet protocol that the World Wide Web is built upon. The

lowest layer takes the bottom two layers of Berners-Lee’s model and combines them into a single

physical layer

9

encompassing the computer layer – namely, the machines that are connected to the

internet, such as the user’s PC and router – and the transmission layer that includes the hardware of which

the internet itself is made up.

The majority of legal intellectual property regulat ion provided by the legislature is applicable at the

content level, in that the granting of a monopoly right on informational content creates legal barriers that

seek to pr event the end user from accessin g, distributing, remixing, or carrying out any ot her action

related to the work that has not been authorised by the rights holder. These legal barriers are arti ficial in

the sense that they would not exist naturally in the d igital environment, and thus they must be created and

applied by the legislature. This becomes rele vant when the interrelations between the hierarchies o f the

stack are considered

10

. It will be recalled that the ISO/OSI model and Berners-Lee’s fo ur-layered model

are organised hierarchically, and are dependent upon o ne another to operate. The consequence of this is

that each layer of the stack will al ways be capable of being influenced by the layer or layers below it, but

not b y the layer or layers above it. So in the case of Benkler’s model of the institutional ecology, the

content layer can be influenced by regulation on the content layer, the code layer and the physical layer.

The code layer can simi larly be influenced by regulation applied on the code layer and the physical layer,

but regulation applied at the content layer cannot directly influence it

11

. Thus, the physical layer can only

be influenced by regulation directly applied at that layer, but is unaffected by regulation applied to the

upper layers

12

. To illustrate this rule in the context of intellectual property regulation, the legal construct

of copyright tends to be directly applied at the conte nt level

13

. With this in mind, it becomes clear why the

legislature has become keen to apply regulation through the use of code to content that ca n be shared in

the networked information environment. If regulation can be successfully applied at the code level, which

by definition utilises the architecture of the internet, then the principle suggests that this would be more

effective than the arti ficial barriers applied at the content level through direct legal regulation. In order to

uncover why this has not proven to be the case, it is necessary to explo re the code layer in more detail.

4

Berners-Lee T, Weaving the Web: The Past, Present and Future of the World Wide Web by its Inventor (Texere

Publishing 2000), 124 et seq.

5

Benkler Y, The Wealth of Networks: How Social Production Transforms Markets an d Freedoms (Yale University

Press 2006), 384.

6

Ibid. 384.

7

Benkler Y, ‘From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons

and User Access’ (2000) 52 Federal Communications Law Journal 561, 562.

8

Benkler Y, The Wealth of Networks: How Social Production Transforms Markets an d Freedoms (Yale University

Press 2006), 395.

9

Murray AD, The Regulation of Cyberspace: Control in the Online Environment (Routledge-Cavendish 2004), 44.

10

Bailey J, ‘O f Mediums and Metaphors: How a Layered Methodology Might Contribute to Constitutional Analysis

of Internet Content Regulation’ (2004) 30 Manitoba Law Journal 197, 200.

11

Lane TA, ‘Of Hammers and Saws: The Toolbox of Federalism and Sources of Law for the Web’ (2003) 33 New

Mexico Law Review 115, 116.

12

McTaggart C, ‘A Layered Approach to Internet Legal Analysis’ (2003) 48 McGill Law Journal 571

13

Directly applied in this context means purely and directly through the application of rights, restrictions and

enforcement at a purely legal lev el, applied to content or an end user. In the case of copyright, this will take the form

of the rights given to the holder of the copyright granting them an exclusive monopoly to carry out certain actions

with the work.