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Shaping Code

Kesan, Jay P. and Shah, Rajiv C., "Shaping Code" . Harvard Journal of Law & Technology, vol. 18, no. 2, pp. 319-399 (Spring 2005). Available at SSRN:


    As our initial awe over the Internet diminishes, policymakers are recognizing the need to consider regulating Internet technologies. Legislation has been passed on a number of issues from security, filtering software in schools, spam, cell phone portability, and perhaps, spyware. This approach has been ad hoc because of the lack of a comprehensive analysis of the various approaches to regulating Internet based technologies.

    This paper fills this gap by providing a systematic analysis of the government's ability to shape these technologies through the use of its regulatory power, its fiscal power, and through the definition of intellectual property rights. The regulatory issues considered include prohibitions on code, using standards or market-based incentives, modifying liability, and requiring disclosure. The fiscal issues considered include government funding of research and development, the use of the government's procurement power, tax expenditures, and funding of education and training.

    This paper draws from Justice Breyer's seminal work on regulation and applies it to Internet technologies. This article stands apart from other work in this area because it does not focus on just one mechanism to shape code. It is the first article that considers these issues from a broader perspective that examines the complete panoply of government powers to regulate and shape code. In the process, it insightfully bridges work in regulation to that within cyberspace law and communication technologies.

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