Regulation by Software

This Note builds on Larry Lessig's famous formulation that "code is law" to argue that Lessig was wrong to equate computer software with physical architecture. Although software resembles both law and architecture in its power to constrain behavior, it has features that distinguish it...

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Bibliographic Details
Published in:The Yale law journal 2005-05, Vol.114 (7), p.1719-1758
Main Author: Grimmelmann, James
Format: Article
Language:English
Subjects:
Architecture
Automation
Capital market
Commercial regulation
Computer law
Computer programming
Computer software
Computers
Copyrights
Digital rights management
Digital technology
Economic regulation
Government regulation
Intellectual property
Internet
Law
Laws, regulations and rules
Legal codes
Predictions
Regulation
Rule of law
Social norms
Software
Software law
Source code
Transparency
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Summary:This Note builds on Larry Lessig's famous formulation that "code is law" to argue that Lessig was wrong to equate computer software with physical architecture. Although software resembles both law and architecture in its power to constrain behavior, it has features that distinguish it from both. The Note identifies four relevant attributes of software: It is ruleish, potentially nontransparent, impossible to ignore, and vulnerable to sudden failure. By assessing the impact of these characteristics in a given context, one can decide whether software is a good or a bad choice to solve a regulatory problem.
ISSN:0044-0094
1939-8611