Gail E Evans and Sarah Moylan
The aim of this paper is to consider the legal implications of cyber-ontology with reference to issues raised by the regulation of software. The authors begin by explaining the present disjuncture between classical legal paradigms which were conceived for a world of atoms, and the digital environment, a world which not only extends us physically but also facilitates a unique merging and shifting of identity. Given this altered ontological status, they argue that software is not merely an enabling technology, but also a form of discourse in so far as we are constituted by it. Drawing on the philosophy of Foucault and Habermas they explain how software, like language, also has an embedded structure that may be both hierarchical as well as political. They contend that our existing political vocabulary of race, class and social relations is being replaced with a technological jargon of systems design and communications engineering in which software plays a role that not merely utilitarian but pivotal and constructivist. The paper then examines the implications of software as discourse for the regulation of cyberspace through expansive intellectual property rights or mandated technical standards. The resulting analysis raises important constitutional issues for information society. If, for example, netizens are only able to participate in the digital polis predominantly through use of one particular software product, the authors question whether this would not constitute an unacceptable erosion of fundamental rights in freedom of speech or freedom of association? Using the patenting of internet business methods as a case study, they caution lawmakers against the unthinking expansion of proprietary rights without due consideration being given to the status of software as the discursive medium of cyberspace. The authors take the view that, while it may be technically correct to hold, as a United States court did in State Street Bank & Trust Co. v. Signature Financial Group Inc, 1998, that a computerised business method is patentable subject matter – that this is nevertheless an undesirable development. Indeed, if regulators continue to ignore the political and social significance of software as discourse, the authors caution that information society risks replacing traditional power structures for new forms of informational oppression. Although an extra-legal, technical response may be a feasible way of incorporating key values into the physical architecture of cyberspace, they submit that, given the fragmented nature of the digital polis, and the protectionist offensive by information industries, it would be more prudent to embed core values and fundamental freedoms within the construct of cyber-law. Only then, the authors conclude, when lawmaking is based on a theory of informatics, which takes account of software as discourse, can we hope to avoid the present dissonance between law and cyber-reality and instead look to the development of a transcendent normative framework for the regulation of information society.