web3 is Lessig’s child

Do you recognize the name, Lawrence Lessig? Despite being his spiritual children, many in web3 do not. For them, “Code is Law” is a mission statement; not an analytical framework.1for a good example of this in practice, see this blog post from 2016 from the Ethereum Classic blog.

In the late 90s, Lawrence Lessig gained prominence as one of the academics focusing on the implications of a new technology called the Internet. As a college student at UCLA researching the political and legal repercussions of the Internet, it was impossible to avoid Lessig’s work in the late 90s. Lawrence Lessig at that time was a constitutional law scholar at Harvard Law School. Since much of the early Internet regulatory push back focused on content (pornography2e.g., Communications Decency Act of 1996 and The Children’s Online Privacy Protection Act (“COPPA”) of 1998 and cryptography3e.g., Safety and Freedom through Encryption Act (SAFE) of 1999 and the Oxley-Manton amendment to H.R. 695, the Security and Freedom through Encryption (SAFE) Act. Phil Zimmerman summarizes the cryptography battles touched off by his work with PGP thusly in this article, “I became the target of a criminal investigation for violating the Arms Export Control Act by allowing PGP to spread around the world. This further propelled PGP’s popularity. The government dropped the investigation in early 1996, but the policy debate raged on, until the US export restrictions finally collapsed in 2000. PGP ignited the decade of the Crypto Wars, resulting in all the western democracies dropping their restrictions on the use of strong cryptography. It was a storied and thrilling decade, and a triumph of activism for the right to have a private conversation.”), Professor Lessig’s knowledge of Constitutional Law—freedom of expression in particular—and Intellectual Property, pushed him to the forefront of the newly emerging group of Internet pundits and thought leaders, which also included Marc Rotenberg, Diedre Mulligan, Jerry Berman, Cindy Cohn, Lee Tien, Fred von Lohman, Cory Doctorow, and John Perry Barlow. It was a time of lawyer heroes, with LA Law, the Practice, Law & Order, Ally McBeal and other law-focused shows dominating the ratings. Lessig soon became one of my heroes and I made it my goal to attend Stanford Law School to study with him.

One of Professor Lessig’s most significant achievements, and what lays the foundation for his paternity of web3, is his work around open source licenses, particularly Creative Commons—the innovative licensing system that enables Wikipedia, depub.space and many other websites today. Lawrence Lessig co-founded Creative Commons with MIT’s Hal Abelson4I think I offended Professor Abelson the one time that I met him because I did not realize he was the co-creator of Creative Commons. If I recall correctly, I referred to Professor Lessig as the creator of Creative Commons, to which he corrected me to say he was also the co-creator 😳. I am not making the same mistake twice! For the record according to Wikipedia, Lessig, Abelson and Eric Eldred founded Creative Commons in 2001, the year I began my studies at Stanford Law with Professor Lessig. to provide content owners the ability to share their work without placing their copyright at risk. Previously, there was no legal mechanism that allowed this and this impacted the emerging sharing economy by creating a lot of legal uncertainty, especially for established copyright holders who were nervous about their content being shared on the Internet.5for more about copyright abandonment and Creative Commons as discussed during this time, see this archived chapter from Stephen Fishman’s book Copyright and The Public Domain

Creative Commons licenses were modeled after the software open source licenses that were also emerging as pillars of the “Free Internet” movement6for a good examination of that time and era, see Mike Godwin’s article here that was forming at that time around thought leaders like Lessig and organizations like EFF, CDT and EPIC. Open source code, as common as it is now, was seen as a weird aberration in a time of shrink-wrapped, licensed software. Microsoft was at its monopolistic worst and was actively trying to suppress the emerging open source movement and stifle the development of Internet browsers and other networking technologies relying on open source software.7these articles provide a nice recap of Microsoft’s rise and fall with Internet Explorer

It was in that late 90s environment of regulatory overreach and corporate code oligopoly that Lessig coined the phrase “Code is Law” in his book “Code: And Other Laws of Cyberspace.”8note, this is for v2 of the book released in 2005. There, starting on the first page of Chapter 1, Lessig lays out his framework of 2 types of code or laws: East Coast code (laws passed in DC) and West Coast code (software code written in Silicon Valley/Seattle). Lessig’s point was that increasingly, West Coast code will become just as powerful, if not more so, than East Coast code. It was an important extension of Langdon Winner’s ideas regarding the power of design 9“Langdon is perhaps best know for posing the question, “Do Artifacts Have Politics?” and for answering, ‘Yes,’ the dimensions of which he has explored in numerous essays and lectures over the years. While some readers have focused upon particular illustrations in his discussion, for example the height of bridges on the Long Island Expressway in New York, Winner sees the matter far more broadly: a question about the basic compatibility (or lack of compatibility) between the desired character of democratic society and its technological devices and systems” taken from his homepage.” extended into the Internet age. Turns out, it was also a war cry that led to web3.

When I was in Austin a couple of weeks ago for a web3 event called DCentral to test depub.space, I heard the phrase “Code is Law” repeatedly. As a former student of Lessig’s, I was really pleased to hear so many people citing his work. But after hearing the phrase repeatedly without hearing Lessig’s name, I wondered whether they knew who Lessig was and if they connected that phrase to his work. After many conversations, I learned that they did not. This concerned me, not because I want my old professor to get credit, but because their ignorance has implications for the future of web3.

Code is law is not just a cry of freedom (for those that can code) but I believe it is also a framework of responsibility for those that code and create product. Laws cannot just be imposed without thought for how they will be used by the people; laws should be thoughtful and well-considered, with unintended consequences explored and discussed. Because the ability to make laws confers so much power, society has placed many hurdles between the prospective lawmaker and the instruments of lawmaking to provide stakeholders and the public a chance to vet the worthiness of the lawmaker. In a healthy culture/society, law and lawmaking should be open and responsive to the participants of that culture/society. Compare this with the process of writing code and making product today, especially in web3.

Currently, “Code is Law” is used by the web3 community as a mantra to dismiss regulatory concerns—if the code allows it, it’s allowed. This interpretation leaves out important context. Lessig never said West Coast Code will completely replace East Coast code and render it powerless. At most, he argued that West Coast code would make East Coast code increasingly less relevant. And note that he wrote this before Congress passed the Digital Millennium Copyright Act of 1998 and Lessig lost his challenge to overturn it at the Supreme Court with Eldred v. Ashcroft, 537 U.S. 186 (2003). I was part of his research team for Eldred and in the aftermath of the loss, asserting the supremacy of code over law felt like arguing the Empire is toothless right after the Death Star blows up Alderaan. Code might become law in the long run but East Coast code isn’t going anywhere as long as lawmakers have police and a legal system to enforce those laws.

Previously, growth allowed those in web3 to dismiss criticism and concerns as noise from the unenlightened. But the recent crypto meltdown has forced a reckoning. East Coast Code (laws and regulations) is coming and those in web3 like me, need to be ready. Up until now, web3 has been largely able to ignore regulators until all but forced to engage (this recent article about Binance’s CEO Changpeng Zhao provides many examples of this approach in action).

Going forward, those of us in web3 need to anticipate and address the regulatory concerns, not ignore them. And make no mistake, part of the ability to “anticipate” comes from engaging and working with the lawmakers and regulators. Just as Google, Apple and the other tech giants eventually realized in the late 2000s that they needed people in DC to educate lawmakers, web3 must do the same. Ultimately, it’s web3’s responsiveness to regulatory “East Coast code” and the ability to design a product that thoughtfully incorporates the needs of the users with the requirements of regulators that will determine the future prospects of Lessig’s spiritual children.

In my upcoming blog posts, I’ll talk more about the surprising things I’m learning about web3 after 6 years away from all things blockchain.10 I participated in the first DAO back in 2016 but after the attack and fork, I stopped paying attention to blockchain technology while I focused on kids and growing Tenjin) I hope you’ll continue to follow along as I explore web3.

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