Code is Law? Assessing Architectural File Sharing Regulation in the Online Environment

Western legislatures tend towards the use of regulatory policies that favour strong intellectual property rights over public access in the battle to regulate file sharing. It has become apparent that the legislature is increasingly relying on code-based regulation in order to detect infringement, to identify those infringing, and to enforce the law through technical measures. This paper will assess the efficacy of regulation by code in the context of Lessig’s assertion that “code is law”, as applied to the file sharing community. The conclusion will reveal a significant asymmetry between the intended application of the regulatory influence of code and its de facto applicability in the online environment.