[This post is a reading reflection written for UNL’s Digital Humanities Seminar. This week’s reading was Lawrence Lessig’s Code Version 2.0.]

Facebook and Google have a hand most businesses and nearly every person’s lives. Seeing the interplay of commerce and the law is not a difficult task for a reader in 2011. While code and commerce are clearly connected to a number of issues of interest to scholars on a personal level including free speech and privacy, most valuable to academics is Lessig’s evaluation of intellectual property.

The obvious examples for digital humanists are Creative Commons, which Lessig says has created a “private law” (199) and the “permission culture vs. free” (192) of which the HathiTrust lawsuit over orphan works serves as the the best example, as soon judges will influence the way in which scholars access texts online for years.

Perhaps less obvious, but no less relevant is Lessig’s musings on how software can influence copyright law. It may have only been a hypothetical at the time but software that can regulate a user’s reading of the text. I immediately thought of e-readers, to which libraries have now adapted and can virtually loan a copy of a text. The more obvious example was on the next page (178) when Lessing posed the hypothetical tiered subscription to the New York Times, which has already became reality. NYTimes.com offers twenty free articles, after which you must pay for a subscription. The same used to be the reality of Pandora, which offered 40 hours of free music a month (now unlimited) and limited the number of skipped songs.

Software that regulates users’ usage is already a reality, so how does this affect the digital humanities? Regulating software poses some promise for scholars. The publishing industry clearly does not like free sharing of texts (again see HathiTrust lawsuit), so regulated use, perhaps a small number of texts per month, could alleviate some of the tension between publishers and academics. However, it seems regulation of this nature would lead to more paywalls. After all, the New York Times used to be entirely free online. If this ability of regulation leads to restriction, which seems to be likely as of today, this regulation by commerce is no better than the restrictive legal regulation that stifles scholars’ use and sharing of different works.