ABSTRACT
The case studies contained in Chapters 4-7 demonstrate an interesting pattern. Attempts to externally impose a regulatory settlement, such as the efforts of software companies to leverage control into the content layer via their proprietary software suites, the actions of ICANN with regard to domain names, or public sector attempts to control the distribution of content through legal tools such as the Digital Millennium Copyright Act (DMCA) or the Communications Decency Act (CDA), often lead to unexpected outcomes and ultimately, failure to achieve the regulatory settlement that was sought. Alternatively, on the few occasions where a regulatory settlement has been allowed to develop organically, such as the development of network protocols including TCP/IP and FTP, the community response to the Live 8 ticket affair or the market response to the problem of the home video recorder, a strong and coherent regulatory outcome has developed. What can regulators, and regulatory theorists, learn from these outcomes? Does it mean that direct regulatory interventions will always produce an unplanned and often undesirable outcome? In turn does this suggest a belated victory for the cyber-libertarian school? Certainly it seems to suggest that the concern expressed by the cyberpaternalists that code writers may effect perfect control through software design is unfounded. Although on the surface these seem to be reasonable conclusions to be drawn from the available evidence, the outcome is more complex than all these suggestions, but it is one that offers regulators and regulatory theorists an opportunity they must seize.
