Law and Internet Cultures (review)

The title of Kathy Bowrey's book, Law and Internet Cultures, straightforwardly positions the work as a specific example of law and culture legal scholarship. Yet the complexity of the relationship between law and culture in the context of the Internet is immediately apparent, as Bowrey is compelled to dedicate her first two chapters to unpacking what she means by the terms in her title. That law is not only legislation, court decisions, and government policy choices but also technology is not news (this was Lawrence Lessig's 1999 insight that Code is Law),¹ but Bowrey contributes the further insight that the very idea of law is as variable as it is pervasive regarding the Internet, depending on the community employing, adapting, or rejecting law's language as a way to describe or shape Internet experience. Bowrey therefore considers the delineation of an Internet 'community' (a term she uses interchangeably with 'culture') as key to identifying the relevant meaning of law.

Bowrey chooses to focus on communities that have the power to influence the way the Internet is experienced: engineers, programmers, corporations, activists, and consumers, as well as the usual courts, lawyers, and legislators. She aims to describe how these communities have influenced or produced understandings of Internet experience, with a particular focus on how they see themselves as having a conscious role to play in shaping the Internet and how that role is informed by their relationship to what she calls 'formal law.' In other words, Bowrey is more interested in how law is engaged as an object, a tool, or a language than in how 'formal law' approaches the Internet. This is a significant contribution to the field of Internet law, which has been largely understood in terms of the challenge the Internet poses to established legal principles.

As for her theoretical approach, Bowrey considers herself to be among those legal scholars who see the exercise of power through a Foucauldian lens. While she acknowledges that law and culture scholarship takes various forms and approaches, her own approach is to concentrate on the self-consciously deployed 'stories' that Internet communities tell about their role in shaping the Internet experience for others, the problems with which they occupy themselves, and the solutions to these problems that they envision. As she writes, 'This knowledge circulates in the form of stories and the stories influence how technological and institutional powers are exercised' (16).

To this end, Bowrey conducts four case studies illustrating different modes of engagement with law, broadly understood. Her third chapter addresses primarily the community of engineers in the Internet Engineering Task Force (IETF), the group that determines the standards for the basic Internet architecture. Bowrey considers these standards to be a form of 'law' and considers the social values that have gone into determining them to require deeper analysis than they have so far received from legal scholars.

Having established that the IETF is a 'lawmaker' in this sense, Bowrey turns to the question of the IETF'S relationship to the formal law of patents, given that patents have been claimed in relation to some of the technologies supporting the universal standards it endorses. She bemoans the IETF'S lack of assertiveness in engaging 'formal law,' and encourages the IETF to enforce more actively its preference for royalty-free licensing for key standard-producing technologies. In doing so, Bowrey seems to want to draw 'law' in the broader sense closer to law in the traditional sense, which does not serve her previously elaborated theoretical scheme very well. She periodically shifts from insightful analysis of the various communities to advocating for a particular role for this or that community or for a particular approach toward formal intellectual property law, positions that arise from outside her previously established theoretical framework.

The following chapter takes on the free software, open source, and Creative Commons communities, in particular their use of licences as a way to define and maintain their communities rather than as a way to enforce intellectual property rights per se...