Hastings Communications and Entertainment Law Journal


The Motion Picture Association of America (MPAA) and its content affiliates would like all consumer electronics and information technology companies to innovate "according to the rules." The arguments made by the MPAA and its content colleagues in support of national (and, eventually, global) control over the functionality of the devices that manipulate content are fundamentally troubling for the future of innovation and the future of law itself. But the content industry has hit on a very important way of thinking about law. We should pay attention to the evolutionary ecosystem of the law as the background medium in which innovation occurs, business models evolve, and social factions grow and prosper. This article argues that preserving the flexibility and evolutionary richness of the code/law background medium ("code/law") should be our aim. We need to avoid both codes and laws that unduly freeze innovation, so that code/law can continue to evolve. Competitive digital rights management (DRM) systems - private ordering - are a better solution in this context than harmonized code/law.