Bits, Bytes, and Bridles: When Old Law Meets New Tech
Reflecting on the “Law of the Horse” debate in today’s context
As contemporary antitrust skirmishes with tech giants like Alphabet and Amazon escalate, and as the brave new world of generative AI casts fresh questions on copyright and fair use, we are reminded of a curious legal analogy from the nascent days of the web: the “Law of the Horse.”
In the mid-90s, as the Internet was evolving from a specialized tool for academics and researchers to a public commodity, regulators grappled with how to approach this new medium. Enter Judge Frank Easterbrook’s 1996 analogy; he argued that just as one would not specifically study the “Law of the Horse” for laws related to horses, it would be unwise to create a separate category of law just for the Internet.1 Instead, he suggested that legal issues related to the Internet should be resolved within the existing frameworks of contract law, copyright law, criminal law, and so on. Easterbrook’s perspective was less a dismissal of the Internet’s significance and more a testament to his faith in the robustness of established legal paradigms.
Yet, throughout history, laws have often evolved in response to transformative technologies. Gutenberg’s printing press of the 15th century did not merely churn out books; it set the stage for copyright laws that would govern knowledge distribution for centuries.2 The automobile’s rise, meanwhile, steered us toward a multitude of legal adjustments, from traffic regulations to insurance requirements.3 Drawing on this historical context, it becomes evident that while existing laws can, and often do, accommodate new technologies, there is also a compelling case for specialized legal frameworks to address unique challenges.
This backdrop sets the stage for scholars like Harvard Law professor Lawrence Lessig, who took the opposing view to Easterbrook’s analogy. Lessig believed that cyberspace was not merely another facet of daily life but a realm defined by unique attributes. Its distinct architectural features, he argued, led to novel dynamics and interactions, which traditional laws were not inherently equipped to regulate.4 Lessig, attuned to the Internet’s technological and architectural novelties, saw it not as just another domain, but a frontier demanding its own lexicon of rules.
Lessig did not use his insights to advocate for a more restrictive Internet, but rather to ensure that human creativity and ingenuity could thrive within this emerging digital medium. Recognizing the challenges posed by traditional copyright in the digital age, he co-founded Creative Commons in 2001. This initiative provided a more flexible copyright framework, allowing creators to share their works more freely and fostering a culture of collaboration and open access. Under Lessig’s guidance, the Creative Commons licenses have empowered countless artists, authors, and innovators, providing them with the tools to dictate how their work is used and shared in the online space.
Fast forward to today, and the challenges seem even more daunting. The complexities of the digital economy underline the concerns Lessig raised about trying to fit new paradigms into old frameworks. Crafted for a world of tangible goods and clear geographic boundaries, conventional antitrust and regulatory models seem increasingly inadequate when faced with the borderless, ever-evolving online landscape.
As technology continues to reshape our lives and redefine possibilities, the “Law of the Horse” emerges with renewed relevance. It reminds us that the true purpose of the law isn’t to impose arbitrary boundaries or to stifle the flourishing of human potential. Rather, it is to serve as a compass, ensuring that as we advance, we remain anchored to the core values that have long defined our civilization.
This balance ensures that, as society accelerates forward, our regulations remain both a mirror to our current aspirations and a pathway toward our envisioned future. It is, after all, in this delicate balance between principle and progress that the future of both technology and humanity truly lies.
Easterbrook, F. H. (1996). Cyberspace and the Law of the Horse. University of Chicago Legal Forum.
Flink, J. J. (1990). The Automobile Age. Penguin Random House LLC.
Rose, M. (1993). Authors and Owners : The Invention of Copyright. Harvard University Press.
Lessig, L. (1999). The Law of the Horse: What Cyberlaw Might Teach. Harvard Law Review.