On Software Regulation

Networks, the Internet, and Cloud Computing

Article Snapshot


R. Polk Wagner


University of Southern California Law Review, Vol. 78, p. 457, 2005


This paper looks at how software and law affect the public.

Policy Relevance

Sometimes, more law can mean that our freedom will be less restricted by software.

Main Points

  • Lawrence Lessig’s statement “code is law” makes the point that software code and law are alike in that both affect and sometimes control human conduct.

  • But Law and software code affect human behavior in different ways and are not substitutes for each other. The key question is, how do law and software interact?

  • If legal rules do not cover some areas, software might develop to guide human behavior in that area instead.  Copyright law enforcement is less effective, leading to research in digital rights management technology to control copying.

  • Software is dynamic and changes often, challenging law. Software can be inflexible, and is designed from a narrow point of view without the benefit of public comment. Letting  behavior be governed by software can lead to more extremes and less stability than law.

  • How traffic moves in cyberspace is affected by law and software. Property rights or liability rules limiting trespassing can be established by law. Software can also limit access to sites.
    • Most sites seem to prefer open access. A system that is designed for and by those who want to restrict access might not make sense.

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