Lawrence Lessig shaped the nascent field of cyberlaw. In particular his argument that "code is law" has become a central tenant of the writings in the field. This Article offers a fundamental critique of Lessig's core argument-and thus of core assumptions of cyberlaw scholarship. It first focuses on the role Lessig ascribes to the market and how he sees it functioning. By emphasizing market choices, Lessig conceptualizes societal problems through a particular lens of atomistic decisions, of outcome rather than process, thereby failing to capture the full dynamic at play in free speech, intellectual property and privacy cases on the Internet. Second, for Lessig, markets function because of assumed or regulated information symmetry (that may not exist in most market transactions) causing him to overvalue transparency. A third fundamental weakness of Lessig's theory is the relationship between technology and society. For Lessig, markets drive technology, which in turn shapes society. This linear, directional view has been discredited by much of the research in science and technology studies over the last four decades. Using two examples of the path of a particular technology (one from Lessig and one more recent)-cookies and podcastsI show how Lessig's technological determinism fails to capture the complex dynamics of innovation.
