sou · GQB3112 · 2003-01-01 00:00:00 — For a lawyer specialising, for ex- ample, in issues of software contracts (different types of con- tracts, existing standard contracts, proprietary rights, insurance coverage, practical concerns etc.) it will be natural to emphasise the bonds that tie the issues together. For a lawyer specialising in tax law or in general company law, the ICT issues naturally form part of a legal framework where their distinctiveness is a minor concern. However, the law firms that offer advice on matters of ICT law should not be regarded as of snake oil. To the extent that they base their claims to expertise on area-specific knowledge and experience, they are just as serious as the ones of- fering specialist advice on matters of law, law, media law, or whatever. Turning to the viewpoint of lawmaking, one finds that the Swedish has a number of sections for differ- ent areas of law (private law, administrative law, penal law etc.). und Recht, Band 6. As for Lessig, see Code and Other Laws of Cyberspace. : Basic Books 1999. Matters of ICT are distributed among these sections, so that intel- lectual property rights are handled by one section, protection of personal data by another, and so forth. As a consequence there have been difficulties with regard to co-ordination and practically no development of a sort of meta knowledge about the regula- tory issues of ICT (cf. the contributions by Per ). Some people may regard this as a weakness, whereas others will point to the advantages of the existing organisation and emphasise the value of developing and applying in-depth knowledge of tradi- tional fields of law instead of organising work crosswise. In academic teaching and training, the law faculty of offers an example of how issues of law and ICT may be treated in an integrated fashion at different lev- els of activities. During their first year of study, the law students are introduced to ICT as a field of legal interest from the point of view of both usage and regulation. The course totals six study weeks and is labelled legal informatics (rättsinformatik). Its main difficulty is to be found in the student-beginners superfi- cial knowledge of law and legal thinking. Nevertheless, it is pos- sible to address at least some fundamental issues of ICT and law, the problems of security and vulnerability, for example. The obligatory basic legal informatics course is followed by elective one-semester courses dealing with particular aspects of ICT law such as e-commerce and information risk management. Many students also choose to write their final graduation paper on matters of ICT and law. As for post-graduate courses the faculty offers an international programme in and . The one-year program reflects the basic strategy by spending time both on more conventional study of ICT law and on methodological issues associated with such issues as legal system management (cf. above), structuring of legal information (XML and related tools), and automation of legal decision mak- ing. Above the programme level, there is a doctoral pro- gramme. At present, theses are underway on access rights regula- tion, freedom of expression and new media, rights in databases, and information security issues. To summarise, for a law faculty that decides to include law and ICT in its syllabus it is not diffi- cult to design suitable offerings and find a place for them in its curriculum. It may be mentioned that courses in legal informat- ics are also in demand in other branches of Univer- sity, not least and system science. In par- ticular, courses on ICT law basics attract a considerable number of students. Last but not least there is legal science. By now, the study of law and ICT has gained recognition as an area of specialisa- But just as in legal practice, views differ regarding its sig- nificance and its future. There are also varying views on how it ought to be conducted, i.e. views regarding its delimitation, its centre and periphery, its relations to traditional branches of legal science, and so forth. The situation for the field at the different law faculties in varies accordingly. Basically, three ap- proaches may be distinguished. One may be described as disin- terest, i.e. the field is not perceived of as worthy of any particu- lar, methodological attention. Another approach recognises that there may be merits in paying attention to the field as a whole or, at least, that it is fruitful to organise co-ordinated efforts to study its various aspects, even if such efforts had better be placed into the framework of the traditional disciplinary matrix. The programme at the law faculty of the may be seen as an example of this kind of approach. The third approach is to be found at the law faculty of Univer- sity, where the teaching programme described above is matched by ambitious scholarly work aimed at developing legal infor- as a sub-field of legal science. The project got going in the mid-1960s. In 1968 formally agreed to set up a special working party for law and EDP, later to be renamed the and (). Thus, work has been going on for about thirty-five years and the is by now a well integrated part of the legal science endeavours of law faculty. and ICT is variously perceived, de- pending upon perspectives, professional interests etc. This diver- sity is hardly surprising and is to be welcomed, at least so long as the different views challenge, enrich, and develop one another. The important thing to keep in mind is the complex and powerful nature of ICT. It is an amalgamation of old and new information utensils (alphabet, paper, calculator, map, telegraph, camera, ra- dio, motion picture etc.) in a joint, basic electric format (to re- turn to terminology). Many experts believe we have so far seen only a fraction of the changes that this amalgamation is capable of bringing about on both the societal and the individ- ual level. Some of the changes will be deep, others shallow. It is my conviction that this also holds true with regard to the legal order and that the task of observing, analysing, and understand- ing the interaction of law and ICT constitutes both a challenge and a responsibility for legal professionals, be they academics or practitioners. To put it simply, many technical issues are in fact legal and an increasing number of traditional legal issues come shrouded in technical concerns. and ICT are more of a wholeness than many of us realise. Remunerative Gifts, Societal Development As a law student, I came across a legal term, remunerative gift, which made an impression on me. What caught my interest was the hybrid character of the concept, the same kind of confusion as in the concept, self-employed, which I comment on below un- der. Remunerative gift is something between obligatio and , between a binding contract and a free gift.1 time it also has been treated in these different directions. Remu- nerative gift is defined as something given to remunerate past services. There, for my part, the matter rested, until recently when I read a book written by , titled Electronic (KTH, , 2001). In it, identifies similarities be- tween new technologies and primitive economic behaviours in terms of a gift economy. He draws parallels between the gift economy among the native Americans of and the inhabitants of the virtual land of Warezonia, which can only be reached through the screen of a computer. The Native Ameri- cans lived in a gift economy. One central element in realising the gift economy was to give a , a feast. It was a social gath- ering of great import. What is interesting is its economic impor- tance, but it is also central to social structure, politics, religion, morality and law within the community. It has been used as an example of a total social phenomenon.2 Potlatching was, thus, a reflection of the native society as a whole. From a legal point of view it is interesting to note that the economy was regulated by social norms. Describing the gift, sets out the ori- gin of economy. The can be regarded as a game where individuals were given status and identity, within an activity hav- ing implicit economic functions. is member of the IT . 1See , The of Obligations. Roman tions of the Civilian Tradition. 2Marcel Mauss, The Gift: The Form and Reason for Exchange in Ar- chaic Societies. , 1924/1990. Briefly, Warezonia, consists of groupings of people that compete in giving away commercial software and the people who partici- pate in this as either intermediaries or fans/consumers. At the centre there is the hard core of the scene, consisting solely of those who give software to others, with the aim of being the most efficient and overall best provider of warez, i.e. programs, soft- ware. social structure has of necessity one implicit norm, the norm of continuing participation. In the social scene of Warezo- nia the rule regarding participation is stated by to be one of sharing and movement (pp. To be a warez dude, you have to be a party to the circulation of programs/warez. The cir- culation of warez, in other words, is the social structure, and the actors merely assume various positions in this structure. The norm of sharing is perhaps the most telling. What is implied in membership in Warezonia is that you are part of the networked sharing on the whole. Not to do so is to disassociate yourself from the community. The other implicit norm, movement, refers to the continuous striving for total coverage, i.e. that all new re- leases are to be had at all relevant sites as quickly as possible. Warezonia also has additional, explicit norms of what con- stitutes the good and the just. These norms are speed and func- tionality. Furthermore, we can speak of norms regarding primacy or origin. Following these norms, you are a successful participant in the community activities. Last but not least, we have the norm of giving. A warez release can only be given. The absence of money, or more precisely the absence of price, is a condition for Warezonias gift economy. A release can have no price, although it can have a value. The work done within the circulation of warez is thus seen as a gift to the scene, as a contribution towards a greater good. To be good is, quite simply, to be a productive member of the community. claims in his book that the structure evident in the is structurally synonymous to the structured interactions of competitive giving on the warez scene. The way in which the societies of the First Nations were structured around the practice of the , with social life within the tribes being dependent on it, is mirrored on the warez scene. In both cases, points out, it is the process of giving and proving ones mettle that gives meaning to the social, and the material instances of exchange can be viewed as mere instruments for a higher purpose (p. Based on observations regarding the way in which the rituals of the changed with the introduction of Western trading posts and similar instances of the market econ- omy into the territories of , Mauss has referred to it as the monster child of the market and the gift. says , could in this vein be called the return gift, the mon- strous introduction of gift-exchange into capitalist hegemony (p. Several other authors have raised the same point as about the feature of a gift economy within the new economy.3 calls the development model belonging to the spirit of the new economy the Bazaar, as contrasted with the Cathedral, which characterises the commercial world of the old economy. Referring to , the promoter of the open source based operative system, Linux , speaks of law: With a sufficient number of eyes all bugs will be noticed. He regards egoboosting as the fundamental driving force behind an open source mentality, which gives it the features of a gift economy. The utility function hackers produce is not a question of classical economy, but is the intangible of their own ego satis- faction and reputation among other hackers. There are, according to , many voluntary cultures which operate in this way. The young Finnish philosopher has de- scribed the same phenomenon in his book, The Hacker Ethic and the Spirit of the Information (: Secker & , 2001), where he enumerates seven values of the hacker ethic that have had a significant role in the formation of the new society. A hacker who lives according to the hacker ethic gains the commu- nitys highest respect, he reaches the final level and gets the sev- enth and final value, which is creativity. This is in Himanens de- scription the imaginative use of ones own abilities, the surpris- ing continuous surpassing of oneself, and the giving to the world of a genuinely valuable new contribution (p. What charac- terises a hacker ethic is the co-operative structure of coders, where ideas and codes are shared, and work is done primarily out of enthusiasm and the joy of participating in a social sphere. But this is not a gift economy according to of the same kind as in the Warezonian case, for two reasons: the problem of mean- ing and that of novelty. claims that hackers, like the Protestant worker, find work in itself to be meaningful. They are climbing the ladder of accumulation. For the Warezonians, however, the scene makes sense in the same way as the Native Americans found meaning in the . The other point, on which criticises Hima- See, for instance, in his famous essay The Cathedral and the Bazaar: Musings on Linux and Open Source By An Accidental Revolutionary, : OReilly, 2001. In his analysis of the open-source movement has made explicit the way in which the hacker cul- ture behaves as a gift economy. nen´s book concerns novelty. Himanen, like many others ad- dressing the network society, emphasises the paradigm shift that the new technology has created. It makes it seem that we, as hu- mans, are entering something new, describes it, and he continues: This is the direct opposite of my contention. The technology might be new, but there is precious that is new about society.... what is truly spectacular about the social world is not its newness but the way in which it has remained un- changed (p. The interesting thing is that both and Himanen may be right. As so often, it is a question of how one specifies the under- lying world view. Both and Himanen regard information technology as something new. They both also accept that this technology creates new things and material wealth. But while Himanen finds a new society representing a challenging alterna- tive spirit of informationalism, is sceptical and looks at our daily lives, finding that not much has actually changed. We still have friends over for , we still give alms, and we feel for those who have less than we do. Culture might bring radical variations and things can recur in numerous settings, but these al- terations take place within the same theme of human behaviour, if I understand correctly. The behaviour of the Warezonians shows remarkable simi- larities to that of the Native Americans. In both cases, the com- munities draw upon the surplus of the market economy in order to create economies that squander. In both cases, outsiders con- sider this criminal. Potlatching was terrifying enough for the Ca- nadian legislature of the time for legislation to be passed against it. The same tendencies can be seen in relation to the practice of warez. The Native Americans adapted to the new economy at that time in a fashion that is hard for us to understand. They cre- ated a hybrid form, just as the Warezonians have created a mar- ketplace for honour and gifts. The legal hybridity, remunerative gift, corresponds to the normative asymmetry in a society as a whole where the social structure belongs to one mind-set and the dominant economic rationality belongs to another. This was ob- viously the case for the Native Americans and what has probably characterised transitional periods from a gift economy to a mar- ket-based economy in other parts of the world, including our own. The question is what conclusions can be drawn from these experiences. Are we facing something new or not? The answer is both yes and no. Let me explain. 2 The long waves Information technology is a core technology, i.e. a technology, which needs itself to develop further and which is broad and deep enough to trigger the creativity and imagination of people for a sufficient length of time. Hand-tools were needed in order to make more and better tools. Precision mechanics helped to de- velop new precision mechanics, such as clocks. Steam engines were a prerequisite for the construction of more and more effec- tive (steam) engines. Computers are used in order to create new generations of computers. This kind of technological develop- ment has, without a doubt, implications for society. Each of these technological periods marks a certain era in the development of an epoch. Thus the industrial society is the last era in the Market epoch, which can be traced approximately 1,000 years back. The Market epoch was initiated by the businessman era in the beginning of the last millennium, followed by the era of the trading houses and the handicraft era. When mankind in the be- ginning for the first time learned how to produce and distribute artificial energy, starting with the steam-engine in the beginning of the 18th century, later complemented by electricity, a new core technology with societal implications was born, the indus- trial society. Many existing could then be used much more effectively, with much higher productivity. An era goes through four phases of about 75 years, following a certain pat- tern. In a biological perspective one can speak of birth, adoles- cence, maturity and death. In a societal perspective, changes take place in a certain order following the phases that have now been mentioned. A new society is born with the new (core)technology which marks the first phase. The next step in the formation of a new society is the social phase as an expression for the need of social adjustments and alterations due to the implications of the new technology. When the core technology is established and developing and the society adapted to the new conditions, it is time for large-scale economic exploitation of the new technol- ogy. This is the heyday of the era, a time of linear development, when the mentality shifts from synthesising to specialisation and reductionism. For the industrial society we are talking about the time between the beginning of the 1860s and late 1940s. After a period of economic production of material wealth it is time for the political system to take the lead. At this time in history the accumulated surplus value calls for mechanisms for distribution. This becomes an important part of the political system in combi- nation with corporate structures of different kinds. over-ripeness of the system necessitates political interventions in order to avoid crises of legitimacy. In this way something new can be said to take place. Tech- nological development creates new and technically more ad- vanced possibilities of providing for human needs. But this is just one side of the coin. I return to the other side shortly. The best graphic illustration of the societal development is the horizontal S-curve or a wave. The S-curve is constituted by the combination of the law of increasing returns and the law of diminishing re- turns. Together they form the horizontal S, as in the following figure: The different phases indicated in the figure correspond to the ones commented upon above. The shift from one society to an- other is a question of developing a new core technology. It is no- ticeable that a new core technology starts as a reaction to the old one already before this one has reached its peak. Inventors, artists and other forerunners recognise the law of diminishing returns long before the economy shows itself to be on the downgrade as a whole. This also means that the first phase in the growing soci- ety is parallel to the fourth phase in the old society. It is phase 4 which dominates the mental processes. The new technology is first applied in the old production structures and thereby speeds up the process of decay. Similarly, new social phenomena are in- terpreted and received within the mental structures of the old so- ciety. This tendency is explained by the prevailing institutions and the vested interests related to them. The initial part of the process has a negative return, as indi- cated by the S. The economists call this phenomenon, the pro- ductivity paradox. In the mid 1980s, when everybody was talking about and started working with computers, this had no impact on the economic statistics. From a micro-economic perspective, the question that accompanies the paradoxical state of the initial phase when a new society is born, concerns incentives and moti- vation. What are the social-psychological driving forces among actors underlying an economy that is not remunerative for those involved? As we can see from the discussion above, there are differ- ent, optional understandings. One is the mentality of a gift econ- omy. In relation to the information society and the so-called new economy, story about the Warezonians is an illustra- tion of that. The affluence following on the large-scale industrial economy has created a basis for a gift economy within a small but expanding sector of society. When the technical barriers to duplication are removed and when a program can be copied a thousand times at basically no cost, a particular form of abun- dance is at hand. The day someone succeeds in putting a price on the digital goods by being able to give them the right package, the gift economy will turn into an exchange economy. A second possible explanation is the hacker ethics connected to the open- source movement. For those coding enthusiasts, devoting time and competence to a development project is to a great extent ac- cepted as a gift to the larger community, and prestige in this community is a direct effect of either egoism or altruism. This behaviour is also rational from a societal point of view. The ethos of being open has shown itself more dynamic than and implicitly superior to normal program development, due very much to the social aspects of such an approach and the creativity which a freer system assumedly bestows upon a project. A third possible explanation of driving forces, explaining why the economic process is developed despite lack of economic remuneration for actors involved, is related to the dedication and devotion of those individuals to the joy of innovation and creativity. All three in- terpretations might be true at the same time, but for different ac- tors and different parts of society. 3 A future for IT law? Somewhere along the way the morality of the gift gets lost, but we can trace back barter and market exchange to their original forms, the total social phenomenon of the primitive gift. The le- gal construction of the remunerative gift marks the step from a gift economy to an exchange economy. In the transitional period, law has to be used to enforce and uphold the old structures while the new ones grow organically through a continuing social proc- ess, where certain patterns of behaviour become entrenched and turn into the real reasons for engaging in a particular activity. In this way gifts turn into exchange relations via the remunera- tive gift . This story has certain implications for an understanding of the role of law and legal development. does not come into play until a societal phenomenon is threatened, i.e. cannot reproduce itself by itself. As long as some- thing is growing spontaneously, it organises itself according to principles of self-regulation. It is probably when the gift- economy is threatened and in dispersion that the gift becomes a remunerative gift and the law comes into play.