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A (Legal) View from a Bridge Over Troubled Waters: Metaphors for Information and its Value in the Information Age

Author: Toby Blyth BA, LLB
Solicitor, Middletons Moore & Bevins
Issue: Volume 7, Number 4 (December 2000)


A (Legal) View from a Bridge Over Troubled Waters: Metaphors for Information and its Value in the Information Age


  1. Commentators are unanimous in remarking a notable growth over the past decade in the importance of information as a utility and as a commodity. The advanced Western capitalist economies have seen the convergence of processes, capital and information in concentrations remarkable for their size, capital concentration and power in the market place. The synergistic benefits of such concentrations have also been noted.[2]

  2. In any event, information is becoming an essential, if not the essential, commodity of the Information Age. Along with the growth in importance of information, comes an increase in the judicial scrutiny of information as a reified concept[3] The power of the metaphor to assist and guide ways of seeing abstract concepts has been noted.[4] Lawyers and judges use metaphors widely - and numerous metaphors have developed into important conceptual tools of their own (for example the neighbour metaphor used by Lord Atkin in Donoghue v Stevenson [1932] AC 562.

  3. A real question for lawyers and judges is how to overlay judicial discourse (in the sense of a Foucauldian epistemological framework[5] on the concept of information itself. In its abstract form information can be a difficult concept to wrestle with. It is submitted that the law has traditionally dealt with information only in its concrete manifestations - for example the law of copyright or confidentiality, dealing with the application of information rather than information itself. As information in its manifestation as temporal inefficiency or data flow becomes more valuable, the law will have to fashion new discourses to deal with it.

  4. This paper seeks to set out a brief overview of the metaphorical and/or paradigmatic discourses that may be available. Apart from law, it draws upon politics, science, medicine, geography and chaos theory to extract some relevant tools for the exercise.

    Taxonomies and their limits

  5. Concomitant with the growth and importance of information as an item of commerce and an income producing unit has been the enormous data flows which circulate in the advanced Western economies - these data flows are facilitated enormously by the development of vehicles such as telephony and the Internet.

  6. It is arguable that these concentrations are not similar to the previous sorts of agglomeration discussed by the Marshall school.[6] These sorts of agglomerations and concentrations are exemplified in the development of huge multinational production organisations and corporations - and the models and taxonomies developed in relation to these forms are powerful.

  7. However, these agglomerations of information, behaviour and power must be contrasted with the marked desynchronisation of traditional forms and patterns of information[7] Nowhere is the desynchronisation between the classical model and the new systems more apparent, or at least less hidden, than in the concentration of the new information based economic entities. Indeed, the almost chaotic nature of smaller organisations and corporations typical of, say, modern management theory[8] operate with an end result similar to what is in scientific terms called a self-organising complex system rather than the typical Fordist and Taylorite models. In a sense, this "order out of chaos" has many similarities to the classical "invisible hand" metaphor of Smith - but other than noting Smith's analysis for its prescience, this paper will not touch on Smith.[9]

  8. The inadequacies of the classical sociological and industrial-relations style taxonomies in relation to the new forms of information and dataflows that are increasingly becoming the principal source of economic power to corporations in the advanced Western economies are becoming increasingly apparent. These taxonomies were developed in response to and as a way of assessing old fashioned means of production of physical objects and consumer goods. While this paper does not seek to deal with and engage the sociological literature on the subject in any detailed or meaningful way, information and dataflows, since they are not corporeal, and in a sense only have an existence as an effect or "final cause", are not particularly susceptible to the application of the classical architectural taxonomies.

  9. Since information has no physical existence, other ways of seeing and thinking, drawn from other disciplines, can be mined and drawn upon to provide potentially useful and powerful metaphors and paradigms for such a venture.

    The dual values of information

  10. In a sense, information has 2 different manifestations or aspects.[10]

    Temporal Inefficiencies

  11. Information may constitute a temporary source of knowledge or power to the holder.[11] For example, classical economical models of the market predicate absolute transparency of information. Putting aside discussion of whether this is feasible in the real world, information may represent a source of power or knowledge to the holder in terms of availability. In the stock market, the limited availability of information will, in effect, create temporary points or eddies of market imperfection. These points of market imperfection may allow the holder to take advantage of the imperfection (in that the holder has a knowledge of some matter that others do not) to buy and sell shares and make a profit.[12]

  12. Such temporary inefficiencies and imperfections may or may not be viewed as beneficial. Insider trading legislation treats the exploitation of some inefficiencies as something to be proscribed.[13]

  13. However, some information-related imperfections are rewarded - for example a party through its own efforts may gain access to some knowledge that has not yet reached the market - for example of a revolution in a far-off place. As a result of that inefficiency, it sells shares in corporations exposed to that market before the market as a whole hears the news.

  14. What is common to both of these examples is a time delay effect - the temporary market imperfection taken advantage of is really a question of timing.

    Information as commodity

  15. Information can also be seen as a commodity. Traditionally, things like trade marks and proprietary information such as production techniques have been seen as intangible property. They have been protected by the law, in an imprecise and probably inconsistent fashion, but still protected.

  16. What is common to the forms of intangible information property protected by the law has been the element of secrecy or uniqueness - for example patents, copyright and passing off, and the law of confidentiality all relate to preventing what is not common knowledge from parking into the arena of common knowledge.

  17. Traditionally, legal protection for such intangible property itself, in a sense, delineates and defines what the property is. The property itself is really a bundle of rights that attaches to the concept which are enforceable, ultimately, in a court and by process of law. Without these protections, there are few available means to protect the holder of unique or commercially sensitive information from having it stolen by a competitor.

    Patterns of information as commodity

  18. However, in its new form, such as in the form of client lists and databases, the old forms of protection may not be useful to delineate and, define and protect the very important sets of information than the significant value associated with that.

  19. One of the problems with information such as client lists and databases is that, in a sense, the subject matter is not unique or confidential - for example, the question of who buys what at Amazon.

  20. In this situation, what is unique and of value is the combination of the information - for example, Amazon may create value out of client lists by being in a position to assimilate and organise information so that it may make predictions of demand and provide supplies to meet that demand and to cross-market and take advantage of the synergies that arise from such cross-marketing.

    A third form? - information as white noise

  21. In a sense, there is possibly a third form of information -the information is general information held by a society as a whole, which is often of considerable value to members of that society.

  22. For the purposes of this analysis, the third form should be treated really as "white noise" that is of little value to an individual corporation. Of course, the white noise is of value to society as a whole and to all participants in the market, since it represents, the common stock of knowledge which forms the basis of human civilisation,[14] but in this situation, since it is common to all market players, its significance can be discounted.

    Paradigms and metaphors

    The legal paradigm - the bundle of rights

  23. The old maxim has it that "possession is 9/10 of the law". This is an old common law concept entitled to significant respect due to its potentially universal applicability and inherent commonsense.[15]

  24. It is easy to apply such a concept to the holding of physical assets and or tangible property.

    What does "possession" of intangible property, such as information, mean?

  25. Traditionally, law has treated property, and especially intangible property, as a bundle of rights[16] These rights are essentially a right to approach a court and have the law applied to protect the rights-holder[17] from the unauthorised usurpation of those rights by another party.[18]

  26. Examples are the law of trade secrets, trade marks intellectual property, passing off and the law of confidentiality.

  27. The problem with the legal paradigm is that the treatment and solution provided by the law are "front end" or "back end" treatments only. They are rarely, if at all, intermediate treatments. At the front end, the law reinforces and assists in locking up information and intangible property - for example the law of patents, and contract. In this respect, the "locking up" is a significant, but accepted departure from the classical economic ideal of absolute market informational transparency.[19]

  28. At the back end, if trade secrets or confidentiality are breached, or a party impermissibly and without authorisation attempts to use unique and or confidential matters that are protected by trade marks or intellectual property laws, then each party can approach the court for remedy.

  29. However, the front end treatments presuppose that third parties will respect the law - commonsense and empirical evidence suggests that these sorts or rights are not respected by all market players all of the time. At the back end, the law sometimes struggles in the forms of remedies it can give - in many instances, damages will not restore the injured party to the position it was in before the breach, and other forms of remedies, such as injunctions, may involve the court in a "police" role which the courts have traditionally found unpalatable.[20]

  30. In any event, the intermediate aspect is not protected - especially for the third sort of information discussed above - where irreparable damage has been done to the holder of the information by its passing from the holder to the general market place or to a competitor. The law, as the protector of a bundle of enforceable rights only may fail in its treatment of information.

  31. It is difficult to see what sort of mechanisms the law could develop to combat the loss of intermediate information - in one sense, this is because the law concentrates on the nature of the relationship between the parties to a transaction - whether the transaction is a contract or the theft of information. The sort of intermediate information discussed here gains its value from its fluid nature, and occupies the interstices between the parties to the transaction.[21] Policing this new space is a function that courts will find very difficult to do.[22]

  32. Given that the use of information that has value only as a result of temporal inefficiencies or information asymmetry effectively destroys the value of the information simultaneously, it could be argued that the legal paradigm does not assist in the conception of such information.

  33. However, the second and third forms of information - as commodity, it is submitted, are precisely what the law had in mind when it fashioned the disparate means of protection that are available to the owner, whether or not perfected in view of recent developments in the field of information flow and transmission. In this sense, information is property, and its income producing quality is protected by the force of the law. Flaws and gaps in the legal paradigm in this respect could be viewed more a result of architectural and technological issues than theoretical ones.

    Lessig's theory of code and the retreat of law

  34. It is in this context that Lessig's theory of the Lex Informatica, or code, of cyberspace is a useful theoretical tool.[23] In deceptively simple terms, Lessig's concept of code is that the fundamental architecture of cyberspace is one that is inherently susceptible to regulation, or, at a more fundamental level, the architecture of cyberspace, its code, is regulation[24]

  35. For example, the fundamental architecture of cyberspace allows law-enforcement agencies (with or without the use of or need for warrants) to track down the source of many statements or pieces of information situated in cyberspace. Similarly, it allows entities such as internet service providers to regulate and delimit the sorts of statements and information that is permitted into cyberspace in the first place.

  36. Since an organisation may be capable of exercising unlimited control over its "manifestation" or "intrusion" into cyberspace, the function of and the need for law in cyberspace as traditionally known (and as discussed above) may simply disappear. Lessig considers that this is not necessarily a good thing - the evasion by entities operating in cyberspace of the effects of and the sanctions imposed by law through the use of code displaces many of the protections granted to society by and/or protected by society through the law.

  37. For example, Lessig notes that the US constitution provides for a limited role to be played by patents and other forms of intellectual property protection - both through the Constitution and protections in copyright law such as fair use or the common law application of doctrines relating to restraints on alienation of property.[25] These guarantee that a "commons" exists and that certain matters may, either straightaway or at a later date not too far into the future, pass into the public domain and advantage the whole of society.

  38. By the use of code, an entity that develops something that might before have been granted the intentionally imperfect protection of intellectual property laws may now be locked up indefinitely through the use of architecture. While at first glance, this may not sound too problematic, society may suffer were a corporation able to perfectly and for all time lock up the formula for something like an AIDS vaccine, or for books to be protected so that the use of a passage by a critic or an academic would not be possible unless a royalty payment were made. In such a context, things like civil disobedience become meaningless. Where the use of the AIDS vaccine is controlled perfectly by code, it would not be possible for a doctor to breach his or her contract of employment and/or the law by vaccinating a patient unable to afford it - it will simply be impossible.

  39. Of course, in some intermediate stages, the entity employing the code would need to fall back on the protection of the traditional law to enforce its property rights that it had sought to protect (although imperfectly) by the use of code. For example, law enforcement agencies and the civil justice system might be called upon to recover the fruits of illegally copied programs or information, or to stop the activities of hackers.

  40. In the long run, however, perfected code will supplant and replace the need for the assistance of law-enforcement officers and the courts. At this time, the only way for society to regulate the use of code to illegitimately lock up information would be for society to legislate away rights. This would be problematic in countries like the US and Australia with constitutional fair compensation rights. It must be remembered that at least on one view the legislating away of rights so that previously owned information loses most of its value by being placed in the public domain would be classed as the compulsory acquisition of property.

  41. If one adopts Lessig's view, information can be characterised as a string of perfectly protected code - a string of numbers. In some senses, this makes it very easy to visualise and conceive. In any event, the end-result of Lessig's theory may contain the answer to the question posed- perfectly protected strings of numbers no longer require the protection of law since no risk is posed to the owning entity and there is no place for any interstitial interplay.[26]

  42. Of course, Lessig's thesis is more subtle than that, in that he posits the architecture of information and code as law - but it is submitted that this form of "law" is a law in the sense of the word used in "law of the jungle" or "law of physics", rather than any law in the sense of the legal paradigm.[27] Once the architecture of information has reached the stage of being a law in the way a physicist may use it - then Lessig's defence of the commons is over and the question posed by this paper is answered.

    Politics - organicism

  43. An organisation can be viewed as an organism that is greater than and, in a sense, distinct to, the sum of its parts. The parts of the organisation, the people, processes and information, constitute the organic whole of the organisation as organism. In many ways, the organicist metaphor is a very powerful on to explain the behaviours of an entity.

  44. However, since the "whole is greater than the sum of the parts", the interests of the organisation are necessarily distinct and may be different to those of its constituents. Naturally, the goals of the organisation as organism are paramount. They may conflict with those of its constituents.

  45. In the organisation as organism metaphor, information is, in a sense, a necessary part of the organisation and does not belong to what would normally be viewed as the key players and stakeholders.

  46. However, the question remains - what exactly is information in the organicist metaphor? The easiest way to conceive of it is to place it as a peculiar fluid matter than exists in the interstitial spaces that exists between the constituent components of the organ. In this sense, it is greater than the sum of the parts in that it is not of the parts yet it is certainly part of the organ.

    The limits of organicism

  47. Although this model has some initial, and superficial, attraction, it is fundamentally limiting. Apart from the difficulties in conceiving the precise function and nature of information in this metaphor, it must also be noted that the organicism metaphor is essentially a political metaphor. As a political model, it is useful in a behaviourist and a teleological sense - in that it provides a useful and adaptable model to explain otherwise inexplicable behaviour on the part of humans and in a retrospective sense is useful in explaining why certain things end as they have.

  48. A classic example of the political manifestation of organicism is in fascist views of the State. In the view of fascist theorists, the State is an organ of higher importance than those of its constituents.[28] In the thought of the German fascist intellectuals, the State was an organ of the people, while for Italian theorists, of the unified nation-state.[29]

  49. The State, as the highest organ of the constituents, is involved in an eternal struggle against outsiders to find its rightful place.[30]

  50. Discussion of the fascist organicism highlights the metaphor's flaws and faults that limit its utility as a metaphor in this context.

  51. Arguably, the fascist/organic model requires some crucial ingredients (other than the State/People) to make it properly work. Fascist theorists concentrated a great deal of potential on the Fuhrerprinzip,[31] and empirically, in view of the conflicts between the goals of the constituents of the organisation and the those of the organisation itself, some internal chaos between the constituents in this eternal struggle[32] (in some sense it is like a Schumpeterian "creative destruction"). In some senses, this eternal chaos is an emanation of the will to power of the organic organisation and is what drives the organisation itself.

  52. Applying this model to modern non-state organisations, the flaws become evident in that the model probably pre-supposes dynamic growth (cf the necessity for Germany to be on a war footing from the mid-1930's) and some form of autocratic leadership.

  53. No organisation can guarantee dynamic growth (if indeed this is even applicable) and autocratic leadership is not necessarily useful for all corporations.

  54. While internal chaos may be creative in a Schumpeterian sense, it may also be destructive in that the constituents may use the information for their own ends.

  55. In conclusion, apart from in a very broad, epistemological sense, the organicist model is of only limited value in conceiving the nature and assessing the role of information in the entity. This failure arises principally from the fact that the organicist metaphor, as a political paradigm, can assist in the task of explanation of outcomes as phenomena, but may not be of much use in any forward looking analysis.

    Medicine - the biological metaphor

  56. Recent work relating developments in the field of epidemiology to the detection and eradication of computer viruses provides a good example of the biological metaphor.[33]

  57. In this metaphor, the organisation and/or the information framework in discussion is conceived as either a body or a population in a biological sense. As an individual body the physical framework of the corporate body represents the framework of contacts and relationships created by the interaction of the constituents of the corporation - principally the people and the processes. The information which passes between these constituents is, then, something like the blood or vital life of the body.

  58. For example, Dasgupta and Forrest use as an intelligent problem-solving technique for tool breakage detection in industrial applications.[34] They propose a new detection algorithm for tool condition monitoring in milling operations - the algorithm is a probabilistic method that notices change in force patterns without requiring prior knowledge of what changes it is looking for.[35] In this sense it is an heuristic system in that it uses learning, memory and associated retrieval systems to solve pattern recognition problems[36]

  59. It is a simple exercise to develop heuristic algorithms based on biological metaphors to ground a taxonomy of information - indeed this underlies much of the thinking behind neural networks and architectures. Programs and processes that mimic the functions of immune cells[37] can then be developed to seek out and destroy known viruses and foreign bodies within the information flow. Such searching may also function on an heuristic basis, by comparing and contrasting the attributes of the foreign body with those already in the immune system's knowledge banks.[38]

  60. In treating a network of computers as a population, analysts approach the biological paradigm from a slightly different angle. In this sense, computers, not people or processes, are the individual elements of the population.[39]

  61. The contacts between computers, say in a network, then become the intercourse and the vectors between elements of a population that epidemiologists traditionally study. Kephart et al take an epidemiological approach to viral infections at the macroscopic level and use metaphors and research developed by biologists to follow and predict the patterns and behaviour of viruses in computer networks. Using mathematical models of contagion developed by Bernoulli[40] viral mortality rates in computer systems can be calculated.

  62. The first studies of viruses in computers concentrated on a microscopic level - since the detailed function and structure of computers are understood (being artificial) and in any event are much less complicated than biological micro-organisms.[41] However, an understanding of the synergy between microscopic and macroscopic views as studied by scientists in the 20th century is of some assistance in analysing computer viruses. In this paradigm, computers and their associated hardware are treated as individuals within a population and can each be labelled as "infected" by a virus. Contact mates and vectors can be modelled and the epidemic threshold can be ascertained. Macro models behave very differently on either side of a "sharp threshold" - this is the point of which the epidemic takes hold or fades away.[42]

  63. Using epidemiological comparisons, defences and immune systems can be developed. As in the Dasgupta and Forrest model, some incorporate a heuristic function which allow them to detect new viruses by guessing of the function of "foreign" code.[43] The combination of preventative and curative anti-virus technology generally serves to treat computer viruses effectively - and computer viruses will tend to fade away at the macroscopic level - not crossing the epidemic threshold.

  64. Artificial computer networks enjoy some advantages over the body - once one element of a computer network has developed an immunity to a particular virus, that immunity can be passed on quickly and easily to other members of the population.[44]

  65. An awareness of the biological parallels between computer networks and populations will allow companies to develop viable and more effective anti-viral policies. These policies have a goal - to prevent the increase of new viruses and to contain those viruses that have yet entered the system.

  66. Modelling can show that, much like the behaviour of real viruses, computer viruses may not exactly travel as fast or with the vectors the popular imagination would have us believe. As well as providing a valuable explanatory tool, viral modelling can also have a useful teleological function - computer use patterns can be studies with tools derived from epidemiology and valuable risk modelling and disaster planning effected.

  67. By its concentration on the nexuses and interstitial spaces within a network, the medical metaphor provides a useful tool for the conception of the third form of information - as commodity. Its practical uses, such as in virus modelling and macro-level extrapolation could be extremely useful tools for an entity to map its information flows in a useful way. Of course, with its emphasis on biological issues, there is a danger of lapsing into the generalisations and inutility of the organicist model, but it is submitted that if this is borne in mind, this model is a potentially powerful tool in the identification and analysis of the role of information in an entity.

    Geography - information/cyberspace as parallel or meta-world

  68. Jiang and Ormeling bring a geographical/cartographical approach to the "mapping" and analysis of cyberspace.[45] They define cyberspace as "a computer-generated landscape....the virtual space of a grab on computer network, linking all people, computers and sources from various information in the world through which one can navigate".[46]

  69. Moglen[47] notes that "what scholarly and popular writing alike denominate as a thing ("the Internet") is actually the name of a social condition: the fact that everyone in the network society is connected directly, without intermediation, to everyone else".

  70. This sets the background for the view of cyberspace as a parallel, or probably more correctly, a meta-world[48] existing around and above the physical world.[49] Since the main building blocks of cyberspace are units of information, this metaphor serves as a powerful means of analysing and considering data flows. It also serves very well as a means of "seeing" and defining the data flows that pool and eddy in the interstices between the physical components of any world, the people and the institutions.

  71. In the sense that the Internet is viewed as an "information infrastructure", any mapping or view of the Internet is thematic.[50] In this sense, Jiang and Ormeling point out that ordinary people are quite familiar with thematic maps depicting, for example, public transport routes.

  72. This serves as a useful example by which to illustrate the sort of mapping and way of seeing information and data flow can be realised - the flow of data around a corporation can be "mapped" as a complex form of flow chart or public transport style map. Jiang and Ormeling also consider the question of visualisation of the Internet as a space connected with the physical world.[51] In this sense, the Internet and the information infrastructure it represents is, one would suppose, a parallel world rather than a meta-world, since the parallel world exists in a larger space together with the physical world, with interaction points.

  73. Reducing the Internet to its fundamental building blocks, information and dataflows, enables the generation of maps showing the locations of web service or top-level domains, and the preparation of statistical maps (for example showing Internet hosts per capita), together with Internet weather maps, which show "storms" of congestion sweeping through the Internet and land use maps.[52]

  74. The geographical metaphor works well in connection with the medical one. Analysts can use the thematic and conceptual maps generated with geographical tools to map the epidemiology of computer networks.

    Self-organising complexity

  75. Self-organising complexity and complex self-organisation is a large field of science that will only be treated in a passing way in this paper[53]

  76. In summary, the principle of self-organisation holds that a dynamic system, independent of its type or composition, always tends to evolve towards a state of equilibrium, an attractor.

  77. Studies have uncovered a number of traits which characterise self-organising systems, including:

  78. In many senses, a legal entity and the data flows within it work like a self-organising system. Indeed, it is not the parallels between self-organising complexity theory and management practice have been noted - Rosenhead discusses the growing popularity of chaos and complexity and the evidence of managerial "take up" of complexity as a framework for organisational practice.[54]

  79. For example, although there is in legal theory centralised control in a corporation, in that executives, the board and ultimately the shareholders own and exercise control over the corporation, modern corporations can reach such size that individual components have a large "space" in which to operate. In this sense, there are numerous local interactions which, regardless of the intentions of the actors, tend to approach an attractor.

  80. Legal entities and data flows are characterised by a very strong non-linearity and feedback mechanism. Heylighen defines feedback as follows: "Feedback is said to be positive if the recurrent influence reinforces or amplifies the initial is negative if the reaction is opposite to the initial action, that is, if changes suppressed or counteracted, rather than reinforced".

  81. It would appear obvious that principles of feedback are very strong forces within legal entities. There are many influences that reinforce or suppress initial changes. These might be legal, cultural or political. For example, the actors within a legal entity (as fundamental constituents of information flow) may suggest a new way of doing things - this new way may be reinforced by approval from those higher in the command structure and/or by improved flow of profits, or they may be suppressed by legal advice, or on a cultural basis since that is not the way "we do things", or for personal reasons (for example where new procedures are co-opted or suppressed to counteract the advancement of particular actors).

  82. Self-organising systems may settle into a number of autonomous, organisational sub-systems, but it seems that once again, these systems themselves together form a greater, self-organising complex system. Applying this to a legal entity, large entities inevitably are made up of smaller sub-groups. Within each sub-group, there is a complex system where apparently chaotic interactions between individuals contribute to a result where the "whole is greater than the sum of parts". Similarly, the interaction between these groups creates a larger result for the corporation as a whole. In many ways, this is similar to the organicist view of the state or entity as an organism existing independently to its constituents.

    Conclusion - A combination of metaphors

  83. As would be expected, it is submitted that the most useful tool for conceiving, viewing, mapping and analysing information flows is a combination of the various metaphors discussed.

  84. There are various forms of information. When the information in question relies for its value on asymetries or temporal inefficiencies - its "form" is determined by the fact that the relevant other party is unaware of the asymmetry. The information really only exists as a manifestation of a power/knowledge relationship, and may not exists in any other relevant sense. In this respect, tools such as the Bayesian equilibrium and other game theory concepts provide adequate tools for the analysis and assessment of information as a function of disclosure.

  85. The second form of information - as a commodity which is "owned" by an entity - either through the traditional workings of property law, intellectual property law or as a product of the entity's inner workings, is more susceptible to analysis by the metaphors and paradigms discussed in this paper.

  86. Use of such words as "owned" presupposes an application of the legal paradigm. Most of the time, the legal paradigm of information property as a bundle of rights provides a useful empirically feasible tool for the analysis of information. However, with developments in technology, it may be that the development of architecture will displace the operation of the law as the pre-eminent discursive structure. This form of code is itself law, but an iron law without the mediating emollient function of judges to fashion it into a sharp precise tool.

  87. Organicism serves some uses as a high level descriptor. Its focus is external - on the relationship between the entity and other entities, and its focus lies away from the internal workings of the entity. This externality itself restricts the usefulness of the organicist metaphor.

  88. There are some parallels between organicism and self-organising complexity. However, self-organising complexity, while containing many of the biological underpinnings of the organicist metaphor, benefits from an ability to "see" inside the workings of the entity and to perceive information and information flow as an internality.

  89. The medical and biological metaphors provide good, intelligible explanations of the function of information and have the potential to serve useful, diagnostic purposes.

  90. The geographical metaphor enables users to see information in some of its aspects physically portrayed in a familiar form. It also serves to enable the viewer/user to handle and model the information in a way that would otherwise be quite difficult. As an empirical, situation specific tool, however, it lacks the attraction of the aspects of "grand unifying theory" of the other metaphors. This may not be a fault, however.

  91. To conclude, the different metaphors do different things. The grand, overarching metaphors, law and organicism, emphasis the externalities, yet are not easily adaptable or susceptible to the interstices and lacunae that information flows inevitably bring about. If they are applied to these, then the shortcomings of the two unified theories become evident.

  92. The two practical metaphors, geography and medicine, do different things. They provide empirical, easily useable tools for the analysis and assessment of information, and can provide especially useful ways of seeing the gaps that the overarching theories find so difficult. However, they falter when used as an overarching theory, since they do not unify, but merely describe and map.

  93. Self-organising complexity is really an intermediate or hybrid form. It combines practical internalities with overarching, if chaos based and unpredictable, discursive structures to map both the function and the flow of information, as well as to provide useful ways of seeing and describing the effects of information.

  94. In some circumstances, one particular metaphor will be pre-eminently suitable as an analytical tool, while in others a combination of more than one, or a hybrid form using elements of many may be the most effective means of assessing information and information flow.

  95. The one important issue is that as information and information flows affect more of the things that affect humans in society, ways of seeing the information and its effects will become more and more useful and will attract more attention.


[1] BA/LLB (UWA), Solicitor, Supreme Court of New South Wales, Senior Associate, Middletons Moore and Bevins, Sydney:

[2] See, for example, Oxman, J, The FCC and the Unregulation of the Internet, OPP Working Paper Number 31, Office of Plans and Policy, Federal Communications Commission, Washington DC, available at

[3] Cf Baudrillard, J, The Orders of Simulacra, pp 99 - 101, in Simulations, Semiotexte, Columbia University, 1995, trans Foss, P, Patten, P and Beitchman, P, .

[4] Froomkin, AM, The Metaphor is the Key: Cryptography, The Clipper Chip, and the Constitution, 1995, available at at "B. Mediating the Clash: A Metaphoric Menu" (no page numbers given).

[5] For example Foucault, M Subjectivity and Truth, in Rabinow, P (ed) Essential Works of Foucault 1954-84, Vol 1, Penguin, Harmondsworth 2000; and Boyle, J Foucault in Cyberspace: Surveillance, Sovereignty and Hardwired Censors -

[6] See generally Hall, P, Cities in Civilisation: Culture, Innovation, and Urban Order, Phoenix, London, 1999, Chapter 9, "The Innovative Milieu".

[7] See Novak, M, Liquid Architectures in Cyberspace in Benedikt, M (ed) Cyberspace: First Steps MIT Press, Cambridge, Massachusetts, 1992.

[8] See, for example, Fukuyama, F and Shulsky, A, Military Organisation in the Information Age: Lessons for the World of Business in Khalilzad, Z and White, P (ed) The Changing Role of Information in Warfare, 1999, RAND Corporation, Santa Monica.

[9] Smith, A, The Wealth of Nations, Prometheus Books, New York, 1991, p 350.

[10] Arup, C, Innovation, Policy and Law: Australia and the International High Technology Economy, Cambridge University Press, Cambridge, Chapter 5, "Information and Appropriation".

[11] Arup, Innovation, pp 129 - 131.

[12] See generally Baird, G, Gertner, R and Picker, R, Game Theory and the Law, Harvard University Press, Cambridge, 1998, pp 98-99.

[13] See, for example, Boyle, J, A Theory of Law and Information: Copyright, Spleens, Blackmail and Insider Trading, 80 Calif L Rev 1413,

[14] Finlay, J and Dix, A, An introduction to artificial intelligence, UCL Press, London, 1996, Chapter 1, Kowlege in AI.

[15] See Lawson, FH and Rudden, B, The Law of Property, Oxford University Press, 1984, at pp 49-50.

[16] Moglen, E, Anarchism Triumphant: Free Software and the Death of Copyright, at pp 2 and 3 of the web version.

[17] Nicholas, B, An Introduction to Roman Law, Oxford University Press, 1987, pp19-20.

[18] Cotterrell, R, The Politics of Jurisprudence, Butterworths, London, 1989, pp 62-63.

[19] Ross, S, Principles of Antitrust Law, The Foundation Press, Westbury, NY, 1993, chapter 2; Hurley, A, Restrictive Trade Practices: Commentary and Materials, Law Book Company, Sydney, 1991, p 292; Smith, p 480.

[20] See Parkinson, P (ed), The Principles of Equity, Law Book Company, Sydney, 1996, Chapter 18 - "Injunctions".

[21] Lessig, L, Code and Other Laws of Cyberspace, Basic Books, New York, 1999, pp 63-64.

[22] Lessig, Code, pp 130-38.

[23] See Code generally; also Lessig, L, Code and the Commons, Keynote speech, Media Convergence, Fordham Law School, New York, 9 February 1999; and Lessig, L, The Laws of Cyberspace, Presented at Taiwan Net '98 conference, Taipei, March 1998 available at

[24] See for example, Karatani, K, Architecture as Metaphor, MIT Press, Cambridge, Massachusetts, 1995.

[25] Ross pp 231 and 236.

[26] See generally Moglen, Anarchism Triumphant.

[27] And see Lessig, L, Battling Censorware, The Standard, 3 April 2000,,1151,13533,00.html

[28] See generally Sternhell, Z, Fascist Ideology, in Laqueur, W (ed), Fascism: A Reader's Guide: Analyses, Interpretations, Bibliography, Wildwood House, London, 1976.

[29] Blinkorn M, (ed), Facists and Conservatives: The radical right and the establishment in twentieth century Europe, Unwin Hyman, London, 1990, pp 5 - 13.

[30] Laqueur, W, Fascism: Past, Present, Future, Oxford University Press, New York, 1996, pp21 -27.

[31] De Grand, A J, Fascist Italy and Nazi Germany: The 'Fascist' Style of Rule, Routledge, London, 1995, p 31.

[32] The "leadership principle". De Grand p 34.

[33] Heylighen, F and Bollen, J, The World-Wide Web as a Super-Brain: from metaphor to model,

[34] Dasgupta, D and Forrest, S, Artificial Immune Systems in Industrial Applications, (without page numbering).

[35] Dasgupta and Forrest, "Introduction", and "Immunity-Based Change Detection Algorithms".

[36] See also Final et al, An introduction to artificial intelligence, chapter 1.

[37] Dasgupta and Forrest, "Immunity-Based Change Detection Algorithms" and discussion of T-cell receptor development.

[38] Kephart, J, Chess, D and White, S, Computers and Epidemiology, IEEE Spectrum 1993, (page references are all to internet version), p7.

[39] Kephart et al, p 4.

[40] Kephart et al, pp 2-3.

[41] Kephart et al, p 4.

[42] Kephart et al, p 5.

[43] Kephart et al, p 7.

[44] Kephart et al, p 12.

[45] Jiang, B and Ormeling, F, Mapping Cyberspace: Visualising, Analysing and Exploring Virtual Worlds, University College London, Centre for Advanced Spatial Analysis, Working Paper Series, March 1999 (without page numbering)

[46] Jiang et al, "Introduction".

[47] Moglen, Anarchism, p 8.

[48] Cf Kristeva, J, Semiotics, in Moi, T (ed) The Kristeva Reader, p77, Blackwell, Oxford, 1999.

[49] Moglen, Anarchism,p 4.

[50] Jiang et al, Mapping Cyberspace, "Space and Maps vs Cyberspace and Cybermaps".

[51] Jiang et al, Mapping Cyberspace,"Visualising Internet as a Space Anchored to the Real world".

[52] Jiang et al, Mapping Cyberspace,"Analysing the Information Space of Internet", and Dodge, M, The Geographies of Cyberspace, University College London, Centre for Advanced Spatial Analysis, Working Paper Series, May 1999.

[53] See generally for this section the work of Professor Francis Heylighen, such as Self-organisation, Emergence and the Architecture of Complexity, 1989, Proceedings of the 1st European Conference on System Science, (AFCET, Paris), p. 23-32,; and The Growth of Structural and Functional Complexity during Evolution, 1996,

[54] Rosenhead, J, Complexity Theory and Management Practice, 1998.

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