Posts Tagged - code

Interpreting the Rule(s) of Code: Performance, Performativity, and Production

MIT Computational Law Report (2021)

Abstract

Software code is built on rules, and the way it enforces them is analogous in certain ways to the philosophical notion of legalism, under which citizens are expected to follow legal rules without thinking too much. The ontological characteristics of code – its opacity, immutability, immediacy, pervasiveness, private production, and ‘ruleishness’ – amplify its ‘legalistic’ nature far beyond what could ever be imposed in the legal domain, however, raising significant questions about its legitimacy as a regulator. This contribution explores how we might critically engage with the text of code, rather than just the effects of its performance, in order to temper these extremes with the reflexive wisdom of legality. This means contrasting the technical performance of code with the social performativity of law, demonstrating the limits of viewing the latter as merely a regulative ‘modality’ that can be easily supplanted by code. The latter part of the article considers code and the processes and tools of its production from the perspective of legality, drawing on theories of textual interpretation, linguistics, and critical code studies. The goal is to consider to what extent it might be possible to guide that production, in order to ameliorate an ingrained ‘legalism’ that is democratically problematic.

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Would the current ambiguities within the legal protection of software be solved by the creation of a sui generis property right for computer programs?

Journal of Intellectual Property Law & Practice (2008)

Abstract

Legal context: Software is an anomaly in the traditional sphere of IP, and its problematic nature has been manifest in the confused findings of courts on both sides of the Atlantic. This article considers the reasons for the confusion, where things might have been done better, and how the law could develop considering the realities of the industry.

Key points: Software protection at present favours the multinational corporations, while the interests of smaller companies and the Free and Open Source Software community are prejudiced greatly. The current regime is not fundamentally incompatible with software, however, and as such features of it could and should be retained in the creation of a sui generis IP right.

Practical significance: Much of today’s software industry is driven by the efforts of small enterprises and the Free and Open Source Software community. Their interests are not recognized in the current protection-biased framework, and as a result innovation is being stifled by the threat of litigation. IP law in this area is preventing the very thing it is designed to foster—enterprise and innovation.

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