1999 B.C. Intell. Prop. & Tech. F. 060502
and the Norms of Science
Dan L. Burk fnA
June 4-5, 1999
of the recent legal commentary regarding the Internet has been directed to
discussion of norms and the role that such decentralized behavioral order
should properly play in governance of this medium. (Johnson and Post, 1997;
Lemley, 1999; Radin and Wagner, 1999) This body of literature mirrors and
draws upon the expanding the expanding body of legal commentary regarding the
role that norms should play in legal rule-making generally. (Cooter, 1996;
Posner, 1996; Bernstein, 1996) Like the users of California basin groundwater
(Ostrom, 1990) and the ranchers of Shasta County (Ellickson, 1991), Internet
users have become something of a metaphor for the proposition of spontaneous
to date, this scholarship on Internet norms has tended to overlook certain
bodies of scholarship that apply uniquely to analysis of the Internet
community, as opposed to analyses of ranchers or groundwater management: the
literature regarding the interaction of law and scientific norms, and the STS
literature examining the social role of artifacts. In this essay, I hope begin
correcting that oversight, by addressing the genesis of legal controversies
arising from the values embedded in the current structure of the Internet, and
from proposed adaptations of that technology. I take as my thesis the
proposition that the current values embodied in the structure of the network
are largely those of the scientific community, and hope to juxtapose several
types of scholarship that seem to be running in parallel in different
disciplines. In doing so, I also hope to indicate new lines of inquiry that
are suggested by tying together the literature on law, norms, and artifacts.
begin by briefly reviewing the history of the Internet and the early users who
influenced its current design. I then discuss the role of artifacts as social
agents, arguing that the Internet as an artifact reflects the value judgments
of its designers, principally the values of the scientific research community.
After reviewing some of these scientific values, I argue that current legal
controversies regarding the Internet may be viewed as cultural clashes between
the norms embedded in the network and those entailed in its current use. I
conclude with some observations as to how this view of the network impacts
current scholarship on governance through law and through code.
Artifacts and Values
analysis starts from the assumption that technologies embody the values of
their creator, and the values thus embodied may include social values otherwise
unassociated with the artifact itself. By itself, this premise should not be
controversial; there is a large literature on the history and sociology of
artifacts undergirding the claim. In one of its aspects this assumption forms
the basis for the study of all the humanities -- we assume that the
characteristics of building, a statue, or painting can tell us something about
the thoughts and culture of that artifact's creators. Technological artifacts
yield such clues in the same manner as architecture or art.
course, some care must be taken when drawing inferences about the values
embedded in any particular artifact, as some artifactual characteristics may
not necessarily embody value choices. Many design choices will be the result
of manufacturing or marketing constraints, although of course even such
utilitarian design choices assume certain values, and the technological
embodiment of such values through artifacts is not socially trivial. But many
other technological design choices are not necessarily choices about
durability, manufacturing cost, or consumer appeal, and may more clearly
reflect the value choices of the technology’s builders and users.
some cases such embodiment of cultural values in artifacts is an explicit or
premeditated design choice. A dramatic if unsavory example of such a
deliberate design choice is given by Winner in discussion the low-hanging
overpasses on Long Island expressways. (Winner, 1980) There exists compelling
evidence that the overpasses were intentionally designed by their architect,
Robert Moses, to preclude the passage of buses, and so to preclude low-income
public transportation riders --primarily African-Americans -- from reaching
Long Island parks.
other instances, the technological embodiment of such biases may be
unintentional or subconscious, simply incorporating the social assumptions of
the designer. In such instances, the inherent bias or limitations of the
technology may serve to perpetuate the assumptions with which it was imbued.
As an example, Wacjman (1991) describes how19th century Linotype typesetting
machines defined social roles within the typesetting and printing industry,
because the design of the machine inseparably combined the skilled and
unskilled work of type compositor and distributor. As a more modern example of
such inherent bias, Hoffman (1995) discusses how dedicated word processors of
the early 1980s, such as the Wang Writer, were designed around certain
assumptions about the duties and abilities of secretaries, who were the
machine's intended users. The machine interface allowed the user to engage
only in particular application level tasks, such as word processing, and
excluded the user from most system functions such as adding, deleting, or
renaming files. As a result the secretaries who used the machine -- and who
were primarily women -- were constrained in the degree of task control and
skill development possible in their jobs.
might therefore consider the Internet as an artifact and similarly ask what
types of values are reflected in the in the inherent limitations and biases of
the system. We need not ask the question in the abstract, as the history of
the technology is relatively well documented; and as a first approximation, we
might expect the structure of the network to reflect the values of its early
users and designers. Numerous commentators have observed that the underlying
architecture of the Internet is attributable to the cold war legacy of its
predecessor, ARPAnet, which was conceived and designed to survive the damage of
nuclear attack. However, the network does not reflect the rigid and
hierarchical command structure that might be expected of a cold war artifact.
Rather, recent commentators have argued that Internet technology embodies the
distinctly non-hierarchical attitudes of the researchers employed by the
military. (Giese, 1996) Indeed, historians of the net have described in some
detail how the "hacker ethic" of ARPAnet designers clashed with the values and
expectations of the United States Department of Defense, which supplied funding
for the project.
to its incarnation as ARPAnet, the network and its development were for a much
longer and more critical period in the custody of the National Science
Foundation. The users of the network during this period were not primarily
soldiers or military personnel, but members of the NSF-sponsored scientific
research community. Thus, the early history of the network was dominated by
academic research usage and academic users, both in computer science and other
areas of basic research. We might expect to find some imprint of these users
and custodians on the current architecture of the Internet, and particularly so
given the distinctive normative structure of the research community.
studies of scientists as a community suggest that scientists tend to share a
set of expected behaviors that govern the conduct of that community. These
norms, as identified by the pioneering work of Merton and others, include
the expectation that scientists should judge empirical claims according to
impersonal criteria, without regard to the identity of their author;
the expectation that scientists will subordinate their own biases and interests
to the advancement of knowledge;
the expectation that discoveries will be freely shared and dedicated to the
community of scientists; and
the expectation that scientists will subject empirical claims to systematic
scrutiny and validation. ( Merton, 1973; Barber, 1953) Additionally, some
sociologists have identified a norm of
under which scientists choose their own research agendas without central
coordination. (Barber, 1953; Hagstrom, 1965)
norms are believed to function together to drive the scientific enterprise,
creating community behavior that rewards contributions to the corpus of
scientific information. Scientists are expected to freely contribute their
discoveries to the community; such contributed knowledge is vetted through
criticism and peer review of published papers or reports. Thus, publication
in peer reviewed journals further both values of communalism and organized
skepticism. Contributed knowledge that passes such scrutiny gains the
contributor the recognition and respect of his or her peers. Under the norm of
universalism, any knowledge contributor can expect to receive such recognition,
regardless of social status; the norm of disinterestedness discourages
fabrication of knowledge to gain undeserved recognition. Scientists who depart
from these norms – by unreasonably withholding data, for example –
may be subjected to disapproval and ostracism, and may feel some degree of
guilt or shame.
considering this list of scientific norms, one or two caveats are in order.
First, the validity of the Merton’s work has at times been criticized on
the grounds that some members of the scientific community fail to adhere to any
such standards. And indeed, numerous examples might be cited of scientists
behaving in apparent contradiction to norms of communality, disinterestedness,
and so on. (Burk, 1995). However, instances of such behavior do not
necessarily disprove the existence of such norms; indeed, no community,
scientific or otherwise, achieves total compliance with its expected standards
of behavior, and outliers can always be found. As I have pointed out in a
different context, the issue is not whether there are outliers, but rather how
such outliers are regarded (Burk, 1995).
second caveat deals with the criticism that the norms identified by early
researchers were overly idealized. Merton's conclusions were based upon
empirical surveys as to what behavior scientists claimed was expected of them.
It has been claimed out that these are not necessarily the true practices of
the community, and that scientists are at best deluding themselves as to how
their community really operates. (Stehr, 1978) Whether or not one accepts
this criticism, one may still expect to find behavior in accordance with the
stated norms. For example, a citizen of a particular community may believe
that the guiding principles of his society are truth, justice, and the American
Way. The fact that these values may be largely epiphenomenal, in many
instances cloaking a different social agenda does not the believer may still
tend to act in accordance with the tenets that he believes are the guiding star
of the community. So too in the scientific community, even if idealized values
may cloak some deeper agenda, researchers will still likely conduct themselves
in accordance with the values they believe are norms. And, the technology of
the community might be expected to reflect the behaviors to which its members
believe they should adhere.
with this general description of the norms of science, we may begin to examine
the Internet for the imprint of the scientific community. Initial support for
this hypothesis comes from an examination the customs of Internet usage, or
“netiquette,” that evolved to govern resource usage among the early
users of the network. The plethora of “how to use the Internet”
books that emerged as the network seized the popular consciousness in the early
1990s attempt to explain to new users these polite conventions of on-line
interaction. (Krol and Ferguson, 1995; Dern, 1994) Many of the customs
detailed in these guides were seemingly directed at managing communal
resources: admonitions to limit the length and frequency of telnet sessions,
appeals to keep postings on-topic, exhortations to conserve bandwidth by
limiting the length of .sig lines. (McGlaughlin et al., 1995; Kollock and
the rules of “netiquette” managed the commons in a distinctive
manner. For example, the social prohibition against expansive .sig files may
have been more than a rule to conserve bandwidth. In addition to promoting
such communalism, it may also have served to promote values of universality.
Displays of title or position were long frowned upon in listserv or Usenet
discussions. The culture of the net purported indifference to whether ideas
were posted by a Nobel laureate or by an undergraduate student, and proclaiming
one’s title was considered an ad hominem declaration. So .sig lines were
expected to remain short and plain.
until relatively recently, the culture of cyberspace also displayed a marked
hostility toward commercial usage of the network that was not really necessary
simply to manage the commons. On occasion, these conventions were even been
raised to the status of formal rules, as when during the years of NSF
oversight, prohibitions against commercial traffic on the network backbone were
a formal part of the network's Acceptable Use Policy (AUP). The obverse of
this norm was a strong sense communality: success or recognition in the on-line
community was to be achieved by contribution to communal resources – such
as a nice bit of shareware programming or well-organized FAQ. Indeed, some of
the animosity against the “hordes of newbies” that descended upon
the network when America On-Line first began providing a gateway to the
Internet for its subscribers stemmed from the complaint that these newcomers
would utilize ‘net resources without providing any in return, since
AOL-based resources would not be reciprocally open to netizens.
the behavioral conventions of netiquette past map well onto scientific norms.
But more important than the legacy of behavioral conventions on the Internet is
the signature that its early designers left embedded in its technology. This
signature was apparent from the earliest history of the network in the "hacker
ethic," which emphasized sharing of resources and unrestricted informational
flows, an ethic consistent with the scientific norms of communalism. These
same values were built into the network architecture, which in turn lent itself
to usage outside the uses envisioned by the DoD, but which were quite in
keeping with the attitudes of first, of computer science researchers, and later
of other scientists.
the Internet by design disseminates information according to a relatively
non-hierarchical and decentralized structure, as might be expected of
technology embodying norms of universality, communality, and independence. The
network architecture might almost be a metaphor for the idealized scientific
community. Although each system has its key points of dissemination –
routers and journals, respectively—information is developed and shared
among independent, autonomous participants.
network is also structured to enable remote access and resource sharing, as
might be expected of technology embodying norms of communality. The open
architecture of the network not only allows, but encourages communal use of
resources. Examples of such protocols are almost too numerous to list, but
they extend from the most foundational level of the network to its highest
level applications. The concept of packet-switching is based upon efficient
utilization of bandwidth by sharing channels rather than dedicating them to
single uses. The through telnet and similar utilities, the network facilitates
distant sharing of informational or infrastructural resources that might
otherwise be defeated by geography.
many of the applications that run on the network assume open access to publicly
available files. For example, the hypertext protocols that make up the
World-Wide-Web operate on the assumption that files on the network, which may
be pointed to by hypertext links, are intended to be available for access.
assumptions embedded in the network may be more subtle, but nonetheless
pervasive. For example, the Internet affords few clues as to the identity or
status of users, as might be expected of technology embodying norms of
universality and disinterestedness. The current network protocols network
makes almost no provision for user identification – as the saying goes,
on the Internet, no one knows if you are a dog, or a Nobel laureate or a
graduate student. This type of personal indeterminacy fits well with the value
of universality: ideas or contributions are valued independently of their
originator, and thus the originator’s identity is relatively unimportant.
This feature may also promote the value of disinterestedness; in a network
where cues to identity are suppressed, participants may be less likely to
invest their contributions with personal
the technological characteristics of the network appear to bear out the rule
that artifacts reflect the values of their users: the Internet is superbly
suited to facilitate information exchange, and to resist geographic, cultural,
or legal impediments to the free flow of information. Agre (1997) argues
something of this sort, suggesting that because the scientific community was
not thought to harbor valuable secrets, the system was built without extensive
privacy safeguards, or that because the scientific community adheres to norms
of self-regulation, the system was built without extensive authentication and
security protocols. My point here is that the absence of such characteristics
is not so much a bug, as it is a feature; not that the system lacks security
safeguards, but rather that the system requires open access. This is hopefully
something more than a semantic argument regarding whether the glass is half
empty or half full; rather, it suggests that the structure of the network
actively channels behavior into certain modes, which reflect the values of the
community that built it.
we correctly perceive in the current function of the Internet echoes of
scientific research norms, and technological structures that channel behavior
toward those norms, then the question then arises as to the effects those
channeling structures may have when they outlast the community that built them.
It is clear that the explosive growth and proliferation of Internet usage
extends beyond the scientific community. The network is no longer exclusively
in the hands of that community, but is rather being employed by a much broader
range of users who may not share the normative assumptions built into the
issue, like the general issue of artifacts as social agents, is not entirely
novel. We have some experience as to what may occur when artifacts built under
one set of assumptions are introduced into a culture with a different set of
assumptions. There are numerous instances of such cultural encounters, but for
the present let us consider only one or two illustrations arising out of the
introduction of common Western technologies into developing nations. For
example, the introduction of water taps into homes in India, which might be
viewed from the developing world as an improvement in the standard of living,
if not a necessity, has less than enthusiastically received in rural Rajasthan.
(Jayaraman, 1999) The faucets carrying the water were soon damaged either by
neglect or by outright sabotage. Those who installed the faucets failed to
appreciate that the provision of water in that cultural setting was the
responsibility of young women, whose only opportunity to leave the house for
social interaction – particularly with young men – was their daily
trips to the well. The Western cultural assumption of convenience built into
the indoor plumbing diverged sharply from the local assumptions regarding
another instance, Western assumptions regarding refuse may diverge sharply from
those in developing nations – assigning items the status of
“garbage” is of course based on cultural assumptions, and one
culture’s waste may be another’s staple. This cultural
disconnection foiled plans in New Delhi for provision of a power plant designed
to provide electricity by burning municipal trash. (Jayaraman, 1999) Rather
than ridding the city of tons of garbage each day, the plant instead sat idle,
unable to produce any power. The Danish builder had failed to consider that
municipal trash in New Delhi is systematically gleaned for reusable cloth,
wood, and plastic by the city’s 8,000 “rag pickers.” Without
these combustible materials, the remaining waste was insufficient to fire the
the Internet has passed from the exclusive provenance of the scientific
community to that of broader society, the social result may be no less
incongruous in the examples of technological transmission between the developed
and underdeveloped worlds. Previous commentators have noted the conflict
between customs of the "old guard" of Internet culture, and those of newer
commercial users. But the question here is less conflicts of custom than
conflicts of usage. The uses to which new netizens may put the technology will
not necessarily be harmonious with the normative assumptions built into the
network by its designers. When the network is put to uses other than those
assumed by its creators, as Internet now has been, conflict may arise between
the values of the new users and the values embedded in the technology itself.
And indeed, since popular adoption of the network, punctuated by disputes over
copyright, domain name ownership, bulk e-mail, pornographic content, and dozens
of other issues. Many of the current legal controversies related to the
Internet appear to be grounded in the incompatibility between the network's
embodiment of scientific norms, and current commercial usage that assume
entirely different values.
the transmission of bulk e-mail, or "spam, " is possible due to the network's
open architecture and capacity for reproduction and distribution of message
content. (Agre, 1997; 1998) Those who send bulk commercial e-mail are able to
utilize the publicly accessible SMTP gateways remote hosts. Similar network
capabilities enable the unauthorized reproduction and dissemination of
copyrighted content. This type of open network architecture may be desirable
and even necessary for shared resources in an environment where the incentive
structure for innovation relies primarily on reputational reward; scientific
norms assume that scientists do not need a pecuniary incentive to engage in
creative work; scientists already have an creation incentive in the form of
peer recognition. But where the primary reward is pecuniary, open architecture
may quickly be exploited for free advertising.
of user identity may also be ideal to promote idea sharing in a community where
contribution is literally its own reward. But in a pecuniary reward system,
these system features serve to obscure the origin and identity of
“spammers” and “pirates,” making difficult the
technological impediment of either activity. On the consumer side, the network
makes equally obscure the location and identity of content recipients. On the
Internet, no one may be able to tell if you are a dog, or a Nobel Laureate, or
an undergraduate, but more importantly, no one can tell if you are a minor, or
a foreign national. Thus the widespread availability of pornographic content
on the network, including availability to underage users, stems in large
measure from the indeterminacy of identity, as do concerns about sovereignty
litany of other examples might be cited, from the transformation of domain
names from mnemonic file addresses to commercial identifiers, to the
transformation of browser “cookie” files from technical markers to
marketing records. In each of these instances, unanticipated use of the
network’s features has led to controversy. They generally, although not
exclusively, relate to commercial use of the network. They generally related
to broad popular uses of the network, and not to the “hacking” and
“cracking” abuses of deviant users with specialized expertise.
Most important, they each disclose some unarticulated assumption of the
research community around which the network was designed.
Norms in the Machine
have thus far argued that the openness, decentralization, and relative
anonymity afforded by Internet protocols are the results of implicit or
explicit design decisions that incorporate the values of the scientific
research community, and that the current controversies surrounding the Internet
tend to arise out of conflict between technologically embedded values and the
more diverse values of the networks’ current users. Such controversies
are emerging with increasing frequency, and each generates calls for new law,
or bromides regarding the ineffectiveness of current legal controls. In
essence, these demands assume that law can and should be used to bridge the gap
between user values and designer values.
type of legal retrofitting is of course not unique to difficulties with the
Internet; it might be applied to almost any technology. In the artifactual
examples offered above, we might imagine attempts to make the New Delhi power
plant function by criminalizing “rag picking” from municipal waste,
or forcing indoor plumbing on the homes of Rajasthan by criminalizing trips to
the well, or criminalizing sabotage of water faucets. But the law is a
relatively blunt instrument for changing social norms, and unless we are
willing to devote substantial resources to policing and enforcing such laws, we
might anticipate that reusable refuse would continue to disappear, or that
young women would continue to slip away to the well. Additionally, legal rules
can sometimes be trumped by artifactual affordances; one may enact laws to
ensure racially equal access to beaches and parks, but it will have little
effect if the buses cannot fit underneath the overpass. Similarly, ongoing
legal controversies reflect the inability of legal restrictions to effectively
control content in a medium that not only rapidly reproduces and disseminate
content, but also lacks any central control point or organizational hierarchy
from which to restrict such dissemination.
the case of the overpasses, changing the social outcome dictated by the
artifact may require physically changing the height of the buses or of the
overpass. This type of technological retrofitting has been common in the case
of the Internet. Where the current openness, decentralization, or anonymity of
the network prove problematic – that is, where these network
characteristics are perceived as bugs rather than as features –
technological fixes are proposed. In the case of spam or of pornography,
content filters may be used to screen out, respectively, bulk e-mail or
information deemed unsuitable for minors. Where age, citizenship, or other
relevant legal status is uncertain, cryptographic systems may be used
authenticate identity, via digital certificate or other means. In the case of
intellectual property, copyright management “lock out” systems are
planned to restrict unauthorized access to proprietary information, as well as
to monitor and charge for authorized access.
legal controversies involving the Internet have increasingly been linked to
proposals for technological controls. In considering these technological fixes,
Lessig has argued that legal constraints and technological constraints may
often be interchangeable; desired behavior can be enforced by law or by the
affordances of artifacts, including computer software. Reidenberg (1998) has
dubbed the rules embedded in such technology “lex informatica,” a
body of prescriptions that may serve as an adjunct to or substitute for formal
legal rules. Law may directly require technology embodying a certain rule set,
or law may be used to encourage the voluntary use of a certain technology, or
law may create an incentive such that the market develops technology as a
response. Each of these approaches can be seen in recent legislation or
proposed legislation addressing the Internet.
alternatively, technological fixes such as censorware or copyright management
may be viewed as an attempt to build back into the network constraints or
limitations that its designers purposefully avoided. As such, they may be
considered attempts to build into the network a different value system than
that held by its initial designers. This view seems implicit in
Lessig’s observation that behavior may be constrained by norms, by law,
or by technology, and that in cyberspace, technology can substitute for either
norms or law. (Lessig, 1997) While Lessig gives relatively little attention
to the current assumptions built into the network, he clearly articulates the
potential for filters and other technological modifications to include hidden
observation in turn raises the critical question as to which values should be
built into such technological fixes, and the process by which the answer to
that question is decided. In the past, such implicit value choices have been
left to the designers and builders of the particular technology, although
commentators in the participatory design literature have advocated the creation
of mechanisms through which stakeholders in a given technology might have a
voice in its creation. (Bjerknee et al., 1987; Schule and Namioka, 1993) But
on a theory of lex informatica virtually everyone in society is a stakeholder.
In a democratic society, the imposition of such values through technology
raises the same issues of participation, fairness, and process as would be
raised by imposition of values as formal legal rules. Thus, Reidenberg in
particular has urged that the elected government is the proper mechanism for
the design of rules as technology, just as it is the proper mechanism for the
design of rules as law.
Cyberlaw and Cybernorms
question of state intervention into technological design brings us full circle,
to the literature on law and norms with which this essay began. This
literature has tended to reject state-imposed rules in preference to
development and enforcement of communal norms to govern cyberspace. Such norms
or other “spontaneous” ordering have been characterized by Johnson
and Post (1997) as a successful example of “bottom-up” governance.
Yet one implication of the argument presented here is that the
“spontaneous order” of cyberspace may be far less spontaneous than
its proponents have supposed. The behavior and interactions of Internet users
may rather have been channeled into certain forms by the normative architecture
of the network. Thus the purportedly “bottom up” ordering of the
network into discussion groups and other cyber-communities may in fact have
been a type of “top-down” ordering imposed, or at minimum
channeled, but the structure of the network. In this sense actually another
manifestation of the “lex informatica” principle, the instantiation
of rules through technology.
this observation has implications not only for the advocates of
“bottom-up” ordering, but for their critics as well. Thus,
Professor Radin (1996) observes that the cyberspace community might have been
effectively governed by informal norms when it comprised a relatively small and
homogenous group of researchers with a common interest, but that as the
community has multiplied in both size and diversity, this method of governance
may no longer be sufficient. Certainly empirical studies of governance through
informal processes indicate that such social constraints work best when the
group to be governed is relatively small and homogeneous, with shared goals and
values. Radin is clearly correct that the cyberspace community of today is
anything but small or homogeneous, and displays a wide, almost infinite,
variety of goals and values. Professor Lemley (1999) expands upon this notion,
arguing that it would be quite impossible to identify any commonly shared
values among Internet users in order to formulate an enforceable set of
norm-based governance rules.
arguments seem correct so far as they go, but probably fail to fully appreciate
Lessig’s observation that law, norms, and code are at some level
interchangeable. (Lessig, 1997) The ur-inhabitants of the network may have
been a small and relatively homogeneous group, sharing the goals and values of
scientific research community. But they were not merely governed by a set of
disembodied norms; those norms were instantiated in the technology of network
they designed. The size and composition of the network community may have
changed, but the fundamental technology connecting the community has not, and
neither have the norms embedded in that technology. Consequently, while the
present polyglot Internet community may not share any stated set of goals or
values, they necessarily share the goals and values designed into the network
itself – whether they intend to or not.
Lemley (1999) is surely correct when he argues that norm-based Internet
governance is unworkable because the rapidly changing character of the Internet
community precludes the development of a stable set of shared norms. However,
the argument overlooks what is
rapidly changing: the character of the network to which new users subscribe,
and the assumptions built into that network. Nor are those technological
assumptions likely to begin changing with any noticeable speed. Lemley himself
identifies the network effects that are likely to lock users into the current
technology. (Lemley, 1999; Lemley, 1996; Lemley and McGowan, 1998) The
Internet constitutes a prime example of a true network, which increases in
value as additional users join the system. The value of the network is
therefore maximized by maximizing interconnectivity, and interoperability is
key to creating such connectivity. Structural changes in the network may
threaten the value bound up in the number of people who use it, and in the
interoperability of the equipment that gives access to those people. Migration
to a new technological standard would entail significant costs for users, and
it may be difficult to overcome the “lock-in” barrier created by
(1998) has similarly noted the technological inertia that may inhibit systemic
change once rules are crystallized into technology. Thus, although Lessig
(1997) argues that technology is relatively “plastic,” this
plasticity may be severely limited by social and economic factors. In theory
we could change the Internet to allow ubiquitous user identification or robust
security, but in practice ridding ourselves of the current technological
architecture may prove to be difficult or impossible. In this regard, it is
worth noting that content filters, copyright management systems, and similar
attempts to retrofit the network are, by and large, local overlays upon the
existing infrastructure, rather than systemic changes. As a consequence, they
remain prescriptively leaky, since the underlying characteristics of the
network remain unchanged, facilitating circumvention of the local rule set.
drawing on bodies of scholarship examining the social role of artifacts and the
normative structure of the scientific community, I have suggested that the
current debate over Internet norms must take into account the normative
rule-set of the Internet’s current technology, especially given the
likely durability of that technology. To the extent that network effects
resist technological change, remaining locked into the current network
architecture, or to a compatible version of that architecture, means being
“locked-in” to the assumptions of those who designed that
architecture. And, so long as those assumptions are incompatible with the
expectations of the current network users, we may expect artifactual conflicts
to continue on a regular basis. Attempts to fill the gap between design
assumptions and user expectations with law or with technological retrofits at
odds with the value design of the technology will only generate continued
disputes, this suggests full employment for Internet lawyers, and perhaps for
scholars of technology and social change, it also suggests that, absent
widespread societal adoption of scientific behavioral norms, the Internet is
likely to generate social controversy well into the foreseeable future.
consideration of Internet structure also suggests several promising lines of
future research. For example, feminist scholars examining the experiences of
women in on-line communication have suggested that a dearth of identifying cues
and lack of personal investment may make the technology of the Internet poorly
suited to the types of communication most natural to female users. (Herring,
1996) Interestingly, much the same criticisms have been leveled against
scientific discourse by feminist scholars in that discipline. (Keller, 1985;
Shepherd 1993) Congruencies between these studies may be the source of
fruitful investigation; it may be that the “masculine” discourse of
the Internet reflecting values of organized skepticism and possibly
disinterestedness embedded in the technology by its early users.
this is not the first time that scientific norms have been studied in conflict
with other normative systems, particularly in a context of commercialization.
(Eisenberg, 1986; Heller and Eisenberg, 1996; Merges, 1996) Eisenberg (1986)
has detailed how the scientific community’s system of reputational
incentives functions as an alternative to the pecuniary exclusive right
incentive in biotechnology innovation. Although there are significant
differences between the commercialization of biotechnology and that of Internet
technology, the role of scientific incentives as an alternative to encourage
innovation may be worth further exploration. In particular, Barlow (1994) and
Dyson (1995) have argued that the exclusive rights incentive of intellectual
property will not function well in digital media, and have suggested reward
systems based in reputational value as an alternative. This suggestion may
take on an additional dimension in light of the argument that the current
network was designed to facilitate the scientific reputation-based incentive
Professor of Law
P.: 1997, “Mixed Metaphors: Inscribing Social Visions in Networked
Computers,” Paper presented at
Telecommunications Policy Research Conference
P.: 1998, “The Internet and Public Discourse,”
and the Social Order
(Free Press, Glencoe, IL).
J.P.: 1994, “The Economy of Ideas: A Framework for Rethinking Patents and
Copyrights in the Digital Age (Everything You Know About Intellectual Property
March, 85-90, 126-129.
L.: 1996, “Merchant Law in a Merchant Court: Rethinking the Code’s
Search for Immanent Business Norms,”
of Pennsylvania Law Review
vol. 144, 1765-1821.
G. et al.: 1987, Computers and Technology: A Scandinavian Challenge (Cambridge
University Press, Cambridge, UK)
D.: 1995, “Research Misconduct: Deviance, Due Process, and the
Disestablishment of Science,”
Mason Independent Law Review
vol. 2, 305-350.
R.D.: 1996, “Decentralized Law for a Complex Economy: The Structural
Approach for Adjudicating the New Law Merchant,”
of Pennsylvania Law Review
vol. 144, 1643-1696.
D.P.: 1994, The Internet Guide for New Users (McGraw-Hill, New York).
E.: 1995, “Intellectual Value,”
July 136-42.Eisenberg, R.: 1987, “Proprietary Rights and the Norms of
Science in Biotechnology Research,
vol. 97, 177-223.
Without Law: How Neighbors Settle Disputes
(Harvard Univ. Press, Cambridge, MA).
M.: 1996, “From ARPAnet to the Internet: A Cultural Clash and Its
Implications in Framing the Debate on the Information Superhighway,” in
in Cyberspace: Social Interaction in an Electronic Environment
(Hampton Press, New Jersey).
C.: 1989, “Network Ethics: Access, Consent, and the Informed
Information Web: Ethical and Social Implications of Computer Networking
(Westview Press, Boulder, CO).
(Basic Books, New York).
M. and R. Eisenberg: 1996, “Can Patents Deter Innovation? The Anticommons
in Biomedical Research,”
vol. 290, 698-699.
S.: 1996, “Posting in a Different Voice: Gender and Ethics in CMC,”
Perspectives on Computer Mediated Communication
(SUNY Press, New York).
J.L : 1995, “Writers, Texts, and Writing Acts: Constructed Realities in
Word Processing Software,” Paper presented at The Mutual Shaping of
Gender and Technology, International Workshop, Twente University, October 6-8.
K.S.: 1999, “Technology and Tradition Clash in India,”
vol. 397, 9.
D.R. and D.G. Post: 1997: “And How Shall The Net Be Governed? A
Meditation on the Relative Virtues of Decentralized, Emergent Law,” in
on Gender and Science
(Yale University Press, New Haven).
E. and P. Ferguson: 1995,
Whole Internet for Windows 95
P. and M. Smith: 1996, “Managing the Virtual Commons: Cooperation and
Conflict in Computer Communities” in
Mediated Communiction: Linguistic, Social, and Cross-Cultural Perspectives
(John Benjamins, Philadelphia, PA).
I.R.: 1989, “Ethics and the Practice of Science in a Computer Networked
Information Web: Ethical and Social Implications of Computer Networking
(Westview Press, Boulder, CO).
J.Y.: 1996, “Charting the Codes of Cyberspace: A Rhetoric of Electronic
and Cyberspace: Social Interaction in an Electronic Environment
(Hampton Press, New Jersey).
M.: 1999, “The Law and Economics of Internet Norms,”
vol. 73 (in press).
M.: 1996, “Antitrust and the Internet Standardization Problem,”
vol. 28, 1041-1094.
M. and D. McGowan: 1998, “Legal Implications of Network Economic
vol. 86, 479-611.
L.: 1997, “The Constitution of Code: Limitations on Choice-Based
Critiques of Cyberspace Regulation,”
vol. 5, 181-191.
M., et al.: 1995, Standards of Conduct on Usenet” in
Computer-Mediated Communication and Community
(Sage, Thousand Oaks, CA).
R.: 1996, “Property Rights and the Commons: The Case of Scientific
Philosophy & Policy
vol. 13, 145-53.
R.: 1973, “The Normative Structure of Science” in
Sociology of Science
(University of Chicago Press).
(Cambridge Univ. Press).
E.: 1996, “Law, Economies, and Inefficient Norms,”
of Pennsylvania Law Review
vol. 144, 1697-1744.
M.: 1996, Property Evolving in Cyberspace,
of Law and Commerce
vol 15, 509-526.
M. and R.P. Wagner: 1999, “The Myth of Private Ordering: Rediscovering
Legal Realism in Cyberspace,”
vol. 73 (in press).
J.: 1998, “Lex Informatica: The Formulation of Information Policy Rules
vol 76, 553-593.
the Veil: The Feminine Face of Science
D. and A. Namjoka, eds.: 1993,
Design: Principles and Practices
(Lawrence Earlbaum, Hillsdale, NJ)
N.: 1978, “The Ethos of Science Revisited: Social and Cognitive
Sociology of Science
(Polity Press, Cambridge, UK).Walsh, J.P. and T. Bayma: 1996, “The
Virtual College: Computer-Mediated Communication and Scientific Work,”
vol. 12, 343-363.
L.: 1980, “Do Artifacts Have Politics?,”
vol. 109, 121- .
© 1999 Dan L. Burk. Published with permission of the copyright holder.