57 Pages Posted: 26 May 2008
This article explores the idea of "consumers-as-producers" as an organizing principle for understanding modern computing and cyberlaw. Leading legal commentators such as Yochai Benkler and Larry Lessig have emphasized the non-market nature of modern computing, stressing the shared actions of volunteers in blogs, wikis, and Open Source software. By recognizing the ways that ordinary individuals are also economic producers, this article describes major features of modern computing that have been minimized in these leading accounts.
Part I describes the history of home computing as an economic activity, where individuals' home computers today are "personal mainframes," with the processing power of an IBM mainframe from ten years ago.
Part II explores the implications of "consumers-as-producers" for consumer protection law. The legal question is the extent to which consumers-as-producers should be treated as producers - at what point very small producers should comply with consumer protection laws. Part II develops a consistent method for deciding when and in what ways consumer protection laws should apply to consumers-as-producers. In doing so, it proposes specific legal outcomes for diverse regimes such as consumer privacy legislation, advertising substantiation requirements, anti-spam rules, and campaign finance rules as they apply to bloggers and other new sources of political speech.
Part III looks at the extent to which consumers-as-producers should be treated as consumers - at what point consumer-style protections should apply to individuals who are engaged at least somewhat in commercial activity. It also explores how consumers-as-producers should be treated under employment law, as home producers supply their labor in peer-to-peer settings.
Part IV explores broader implications for our understanding of modern computing and the law of cyberspace. Part IV shows how the market-based approach of "consumers-as-producers" is an effective alternative framework for understanding modern computing. In addition, even for those inclined to accept the nonmarket description of computing, "consumers-as-producers" is a useful complement to the nonmarket approach.
Keywords: cyberlaw, consumer protection, employment law, privacy, cyberspace, spam, advertising, campaign finance
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