Regulating Code: Towards Prosumer Law?

Abstract

In this interdisciplinary paper written by a socio-legal scholar and a computer scientist, we explain a novel holistic approach to Internet regulation in the broader public interest. We argue for ‘prosumer law’ and give an example of our proposed solution to the problems of dominant social networking sites. What should prosumer law consist of? We examine the international governance of information, especially the apparent incompatibility of human rights and trade-related concerns exposed in such multi-stakeholder fora as the OECD. Finally, we argue for holistic regulation of the Internet, taking a trans-disciplinary perspective to solve those ‘hard cases’ we have examined. Prosumer law suggests a more directed intervention, to prevent Facebook or Google or any other network from erecting a fence around its piece of the information commons: to ensure interoperability with open standards. It is not sufficient for it to permit data deletion as that only covers the user’s tracks. It requires some combination of interconnection and interoperability, more than transparency and the theoretical possibility to switch. It needs the ability for exiting prosumers to interoperate to permit exit.

We argue that it is untrue to state that there is so much convergence between platforms that there is no clear distinction between open commons and closed proprietary environments, though ‘voluntary forfeiture’ of IPR to permit greater innovation has always been commonplace. We base our argument on the empirical case studies presented in ‘Regulating Code’ (MIT Press, 2013), but we extend our argument from that monograph to assess the environmental preconditions for prosumer law to operate in Europe. We describe the multistakeholder environment for Internet governance and regulation, in which user groups lobbied along with business and governments. We also describe the insights of new institutionalism, with exit and competition for standards becoming increasingly critical in the information economy. We then describe interoperability as a means of lowering entry barriers and increasing consumer welfare. We consider United States administrative and academic arguments (Wu 2010, Zittrain 2008, Lessig 1999, 2006) for self-regulation to have demonstrably failed, and focus on the European regulatory space as more fertile ground to explore prosumerism as both a market-based and citizen-oriented regulatory tool.

Keywords: prosumer, law, interoperability, competition

JEL Classification: H41, K00, K23, L13, L44, L96