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╇ i

CONCEPTIONS IN THE CODE

 OXFORD STUDIES IN LANGUAGE AND LAW
Oxford Studies in Language and Law includes scholarly analyses and
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Lawrence Solan, Brooklyn Law School

Editorial Board:
Janet Cotterill, Cardiff University, UK
Christopher Heffer, Cardiff University, UK
Robert Leonard, Hofstra University
Anne Lise Kjær, University of Copenhagen
Gregory Matoesian, University of Illinois at Chicago
Elizabeth Mertz, University of Wisconsin Law School and American
Bar Foundation
Roger W. Shuy, Georgetown University

The Legal Language of Scottish Speaking of Language and Law:

Burghs: Standardization and Lexical
Bundles (1380–1560)
Joanna Kopaczyk
“I’m Sorry for What I’ve Done”: The
Language of Courtroom Apologies
M. Catherine Gruber
Dueling Discourses: The Construction
of Reality in Closing Arguments
Laura Felton Rosulek
Entextualizing Domestic
Violence: Language Ideology
and Violence Against Women
in the Anglo-American Hearsay
Principle
Jennifer Andrus
Speak English or What?
Codeswitching and Interpreter
Use in New York City Small
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Law at Work: Studies in Legal
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Conversations on the Work of Peter
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Edited by Lawrence M. Solan, Janet
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Confronting the Death Penalty: How
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Discursive Constructions of Consent
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Edited by Susan Ehrlich, Diana
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From Truth to Technique at
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in the Marriage Equality Debates
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Translating the Social World for
Law: Linguistic Tools for a New Legal
Realism
Edited by Elizabeth Mertz, William
K. Ford, and Gregory Matoesian
iii

CONCEPTIONS
IN THE CODE

How Metaphors Explain Legal Challenges

in Digital Times

Stefan Larsson

1
Conceptions in the Code. Stefan Larsson.
© Stefan Larsson 2017. Published 2017 by Oxford University Press
 1
Oxford University Press is a department of the University of Oxford. It furthers
the University’s objective of excellence in research, scholarship, and education
by publishing worldwide. Oxford is a registered trade mark of Oxford University
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Published in the United States of America by Oxford University Press

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© Oxford University Press 2017

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address above.

You must not circulate this work in any other form

and you must impose this same condition on any acquirer.

Library of Congress Cataloging-in-Publication Data

Names: Larsson, Stefan, 1978– author.
Title: Conceptions in the code : how metaphors explain legal challenges in
digital times / Stefan Larsson.
Description: New York, NY : Oxford University Press, 2017. |
Includes bibliographical references and index.
Identifiers: LCCN 2016021520 (print) | LCCN 2016021993 (ebook) |
ISBN 9780190650384 (hardback : alk. paper) | ISBN 9780190650391 (pdf) |
ISBN 9780190650407 (e-book)
Subjects: LCSH: Intellectual property—Social aspects. | Peer-to-peer
architecture (Computer networks)—Law and legislation—Social aspects. |
Technological innovations—Law and legislation—Social aspects.
Classification: LCC K1401 .L37 2017 (print) | LCC K1401 (ebook) |
DDC 346.04/8—dc23
LC record available at https://lccn.loc.gov/2016021520

1 3 5 7 9 8 6 4 2
Printed by Sheridan Books, Inc., United States of America
╇ v

CONTENTS

Acknowledgments ix

1. How We Understand Technological and Social Change 1

Conceptual Struggles in Societal Change 8
Neutral Infrastructure or Filtering Mediator? 9
Cognition, Law, and Digital Technology 14
Outline of the Book 16
Conceptual Metaphors 18
Copyright as a Case 20
Intended Audience 23

2. Metaphors and Norms 27

Conceptual Metaphor Theory 28
Embodiment 31
Metaphors and Law 34
Cognition and Norms 37
Skeuomorphs and the Conceptualisation
of the Digital World 44
 C ontents

Skeuomorphs and Conceptual Path Dependence 49

Summing Up 51

3. The Embodied Law 55

Corpus Juris 56
Embodiment and the Creation of Meaning 59
Seeing the Embodiment: Justice Under Law 64
Discussion: Law Incarnate 72
Conclusions 77

4. Conceptions of Copyright 79
Metaphors We File-Share By 80
Method 88
Findings and Analysis 91
Conclusions 98

5. Copies: A Metaphoric Expansion of Copyright 99

Copies and Their Rights 100
The Pirate Bay Case and the Calculation of Value 106
Analysis: The Problem of Regulating Copies 113
Conclusions: Copy Me Unhappy 124

6. P
 latform, Storage or Bulletin Board? The Swedish
Pirate Bay Court Case 129
Categorisation, Digitalisation, and Law 130
The Pirate Bay 134
The Pirate Bay as a Metaphoric Court Case 138
Liability of the Functions 149
Outlook: Generativity in Decentralisation 151
Normative Implications of Skeuomorphs 153
Conclusions 154

vi
vii

C ontents

7. Between Form and Function in (Intellectual)

Property 159
Between Form and Function 160
Renner and (Intellectual) Property 161
The P in IP 168
Conceptual Legal Change 176
Conceptual Transition of (Intellectual) Property 178
Körperlich and Control 186
Summing Up: Conceptual Legal Change 196

8. Conclusions: Conceptions in the Code 199

Metaphors, Law, and Digitality 200
Conceptual Path Dependence 203
The Digital Challenge to Copyright 207
Metaphors and Power 212
‘Invent the age! Invent the metaphor!’ 215
Sum: Technology and Social Change 221

References 227
Index 245

vii
ix

ACKNOWLEDGMENTS

This book is in many senses of the word a remix. First of all, it

is so because several of the chapters originate from previously
published journal articles that I have revised to fit the grander
framework of a book. Secondly, however, it is also a remix in
the somewhat less acknowledged sense that the contributions
to any creative output by necessity comes from a multitude of
sources, and depend on context and culture. Just because my
name is on the cover by no means mean that I was alone to pro-
duce the text or the ideas it describes. In this case, firstly, I wish
to express my gratitude to all the (mostly) anonymous peers that
have reviewed the preceding articles as well as journal editors.
They have all contributed to increase the quality of my state-
ments and the coherence of my arguments. This gratitude is of
course extended to the reviewers of an earlier version of this
book, which significantly facilitated necessary clarifications and
the progression of the book, as well as editor Hallie Stebbins at
Oxford University Press.

ix
 A cknowledgments

The dependence of authorship on forerunners and context is

in a sense acknowledged in the conception of science expressed in
the metaphor of ‘standing on the shoulders of giants’, but it is not
so much acknowledged in the sense that authorship tends to be
regarded as an expression of a single inspired author (hence the
strong copyrights). Much of this book truly expresses a reliance on
already present or past giants, and I have had inspired input from
great minds amongst the sociolegal classics as well as the scholarly
communities of cognitive theory and law, and some of which I have
had the chance to meet, if only briefly, such as George Lakoff and
Lawrence Lessig. Furthermore, I wish to thank my colleagues at
Lund University, working with or close to the Internet Institute,
perhaps especially Måns Svensson, a colleague and friend who
always stands for a fearless and pioneering attitude, in life and in
science. A special thank you also goes out to all the contributors to
the studies conducted for this book, which includes file-sharers in
all corners of the world responding to surveys as well as The Pirate
Bay itself, whatever you are. Furthermore, this book was written
and assembled during a time where I was a visiting researcher
at a number of places—I’ve been blessed, really—for which I am
very grateful to have welcomed me, such as the Department of
Political Science at the University of Hawaii at Mānoa (thank you,
Debora Halbert et al.); The IT-University of Copenhagen (thank
you, Gitte Stald et al.); the Centre for Comparative and European
Constitutional Studies (CECS) at the Faculty of Law, University
of Copenhagen (thank you, Helle Krunke and Hanne Petersen et
al.); and the Alexander von Humboldt Institute for Internet and
Society (HIIG) in Berlin (thank you, Karina Preiss et al.). This
also includes the Pufendorf Institute for Advanced Studies at
Lund University, which funded and hosted our interdisciplinary
research theme on digital trust and the digital society, in which

x
xi

A cknowledgments

we debated many metaphors (thank you, Per Runeson et al.); as

well as the Swedish Research Council, making this research pos-
sible in the first place, through its beneficial funding. And finally,
to Anna and the boys, thank you for all the support and bringing
of balance to my life.

xi
╇ xiii

CONCEPTIONS IN THE CODE

1

[1]
HOW WE UNDERSTAND
TECHNOLOGICAL AND
SOCIAL CHANGE

Poets, deserted by the world before,

Turn round into the actual air:
Invent the age! Invent the metaphor!1

In 2009, during the Swedish trial of the founders of the The Pirate
Bay (TPB)—sometimes called the most resilient BitTorrent file-
sharing site in the world—there was a sequence when the pros-
ecutor asked the defendant Peter Sunde about the first time the
defendants met IRL, an Internet slang for ‘in real life’. Sunde
replied that they do not use that terminology, ‘We use AFK,
meaning “away from keyboard”, because we think that the
Internet is for real.’
In this exchange, we see an indication of two completely
different conceptions of the Internet. The prosecutor sees the
Internet as something apart from and inferior to the ‘real’ world.
The defendant, in contrast, experiences the Internet as an ordin-
ary part of the social world that just happens to be accessed

1. The poem is part of Archibald MacLeish’s ‘Hypocrite Auteur’ from Collected

Poems 1917–1982 (Boston: Houghton Mifflin, 1985).
Conceptions in the Code. Stefan Larsson.
© Stefan Larsson 2017. Published 2017 by Oxford University Press
 C onceptions in the C ode

through a keyboard rather than via a phone, a letter, or face-to-

face.2 That there are differing ways of understanding the Internet,
and that they have implications for law and regulation, have been
analysed in previous research. For example, the American legal
scholars Jonathan Blavin and Glenn Cohen (2002) have studied
three different conceptualisations of the Internet and what they
entail for law: the information superhighway, the cyberspace as a
distinct other space, and the Internet as real space. They found
that conceptual metaphors for the Internet significantly impact
how it is framed in legal contexts.
In this book I argue, too, that the conceptual battles to define
the Internet, as well as the implications of digital development,
are significant battles for the role of law in society. Metaphorical
descriptions of the Internet and the significance of digitalisation
are not just rhetoric or poetic language, but an outcome of how
we understand this complex digital phenomenon and how this
understanding can be negotiated, over time and across cultures,
with strong discursive relevance. In brief, how we regulate the
Internet, respond to its regulation, and behave online, is argu-
ably linked to how we metaphorically understand the digital
domain with all its inherent phenomena and functions.
Without concepts and imagery, we cannot speak about or
understand the new, and without metaphors we have no concepts
for new phenomena. Just consider the following metaphors: the
Cloud, networks, streaming, data-flow, desktop, interface. And
note, at the same time, how strongly linked these concepts are
to a domain that is not digital or part of the Internet at all.
The point here is that these labels transfer something from the

2. The documentary filmmaker Simon Klose also chose the latter terminology
for the title of his film TPB AFK (2013), largely focusing the court case and the three
most central defendants in the case.

2
3

H ow W e U nderstand T echnological and S ocial C hange

source domain to the target domain of the new phenomena they

describe, which controls our understanding of them, as well as
our regulation of them.
This book uses conceptual metaphor theory, that is, a specific
strand within cognitive theory, to strengthen the awareness of
the strong metaphoricity in contemporary understandings of
the Internet. The particular case used here concerns copyright
and the challenges it meets in a digital context—often denoted
‘file-sharing’ or ‘piracy’—and especially debated during the first
decade or so of the new millennium. The studies conducted are
both empirical surveys of the file-sharing community as well
as studies of the use of certain, legally relevant terminology in
published texts over time. This is complemented by conceptual
analyses of both the Swedish court case concerning the found-
ers of TPB as well as specific key terminology in copyright law,
such as ‘copy’ and ‘property’. The need to improve legal aware-
ness of how metaphors function, particularly with regards to
how new technology is conceptualised, is concisely put by Blavin
and Cohen: ‘By failing to adopt appropriate metaphors in reg-
ulating new technologies, courts risk creating bad law’ (2002,
p. 268). The purpose of this book is somewhat broader, and takes
a step further from the work of courts to include how concepts
in legislation are reinterpreted in relation to new technological
phenomena—that is, to shed light on abstract thinking with
regards to both law and technology, and how they relate in times
of social change. Nevertheless, to avoid ‘bad law’ is of course
still a great motivation for this. In brief, the heart of the issue
addressed in this book is the role that metaphor plays when
the law is dealing with technological change.
The epithet we give to an age tells us something not only
about what we feel should be particularly highlighted or par-
ticularly avoided, but influences our thoughts on the subject

3
 C onceptions in the C ode

as well. The images—metaphors—are powerful cognitive phe-

nomena that we depend on to describe phenomena as abstract,
yet malleable, as an age. In descriptions of the Internet as an
information superhighway (cf. McCoy and Needham, 1995; Blavin
and Cohen, 2002), the invoked imagery leads to a conceptual
understanding that lies close to notions of transferring infor-
mation from A to B—a concise, simple metaphor, that accord-
ing to Blavin and Cohen (2002) leads to a suitability for state
involvement.3 When William Gibson coined the term cyberspace
in his novel Neuromancer (1984), he conveyed the imagery that
the early PCs and arcade games shared a mutual space that
stretched beyond, or behind, the screens (Greiffenstern, 2010,
p. 123; cf. Blavin and Cohen, 2002, pp. 275–80). This concept
emphasised the idea that digitalised networks are spatial and
have three dimensions that one can exist and move within,
as well as an environment distinctly different from ‘the real’
world, and one may remember the early days of ‘virtual reality’
in the 1990s or the media attention in 2005–2006 for the ‘vir-
tual world’ Second Life. This essence of difference was also an
imperative part of early visions of the Internet and its relation-
ship to regulation—a ‘space’ that should not, and even could
not, be targeted by regulatory efforts under government. This
is perhaps most famously expressed in John Perry Barlow’s A
Declaration of the Independence of Cyberspace, a text that was
published online in 1996 as a response to the passing into law
of the Telecommunications Act of 1996 in the United States.
Barlow declared, addressing the governments of the industrial
world as ‘weary giants of flesh and steel’, that ‘cyberspace does
not lie within your borders’ and ‘we are forming our own social

3. European Commission, Green Paper of 27 July 1995 on Copyright and

Related Rights in the Information Society—COM(95)/0382 final.

4
5

H ow W e U nderstand T echnological and S ocial C hange

contract. This governance will arise according to the conditions

of our world, not yours. Our world is different.’
The notion of cyberspace as a differently regulated space
found support in scholars like David R. Johnson and David Post,
in articles like Law and Borders—The Rise of Law in Cyberspace
from 1996. The unregulated aspects of ‘cyberspace’ did however
not stick for very long, but the notion of Internet-related phe-
nomena as a ‘space’ remained, as something qualitatively differ-
ent from the traditional and analogue world, often argued to be
rendering a particular type of regulatory means. The specifics
of cyber-governance became a hot topic in the late 1990s. The
Internet as a regulated (and real) space was argued for not the
least by Lawrence Lessig, who formulated a widely known cri-
tique of the cyber-anarchistic approach expressed by Barlow
(Lessig 1999, 2006). Lessig described the ‘regulability’ of the
Internet and developed the innovative perspective of regulating
by code, and described the Internet in terms of layers ‘that are the
Internet’ (Lessig, 2006) such as the data link layer, the network
layer, the transport layer, and the application layer (and these
operate above ‘a physical layer’). This imagery is supported by, for
example, the writer and documentary filmmaker Astra Taylor. In
The People’s Platform she argues that ‘the Internet is best thought
of as a series of layers: a physical layer, a code layer, and a content
layer’ (2014, p. 36). Examples of understanding the coded archi-
tecture as something that is by necessity regulated—and in fact
a regulator—is seen not the least in the calls for privacy by design,
as opposed to merely protecting privacy by policy (cf. Halbert and
Larsson, 2015; Larsson, 2013e). In this perspective the Internet
is something very real, and the layered imagery acknowledges
the physicality of the Internet as a kind of foundation for the
communicative applications built ‘on top’ of it—with evident
links to how regulatory debates around digital phenomena are

5
 C onceptions in the C ode

shaped, as well as how social norms concerning digitally medi-

ated behaviour develop.
The software code in itself, so to speak, is part in a grand
assemblage of how computers work, that in the shape of soft-
ware is particularly hard to pinpoint ontologically. Software is,
as expressed by van den Boomen, ‘in principle soft and fluid, ever
open to adding, modifying, and extending’ (2014, p. 128), and a
key argument here is that the design it is part of also can be laden
with values, making it important to be aware of precisely which
values it enables or lead to.

We can build, or architect, or code cyberspace to protect

values that we believe are fundamental. Or we can build, or
architect, or code cyberspace to allow those values to dis-
appear. There is no middle ground. (Lessig, 2006, p. 6)

The argument in this book goes somewhat further in its cognitiv-

ist approach: how we understand phenomena will also be coded,
and how the conceptualisations of specific phenomena will be
part in the building and architecture of ‘cyberspace’. Or, to con-
textualise it more, the conceptions of those who construct the
digitised realm, including the code, will guide this construction.
Many of the underlying values will arguably be depending on the
conceptions, which therefore need to be unlocked.
This book’s point of departure, then, lies in asking how, and
why, if one wishes to understand legal developments in rela-
tion to new technology, it is of such fundamental importance to
understand metaphors and conceptual change. One should bear
in mind that technology never simply is—it is always interpreted
within the context and society that it arises and exists in, and
thereby becomes dependent on older technologies and already
existing concepts that we adopt to understand the new. At the

6
7

H ow W e U nderstand T echnological and S ocial C hange

same time, new technological innovations—and many other

digital phenomena—can radically alter the conditions of things
that are important to us: how we communicate, how we partici-
pate in society, how we learn, how we consume, and how markets
function. These changes can occur rapidly, as digitalisation has
done, and permutations can flow over us quickly, as the spread
of smartphones, wearables and tablet computers has done—in
other words, placing the Internet in our hands and on our bod-
ies. Law is however generally not understood as a swiftly chan-
ging phenomenon that quickly adapts to a changing context.
And although there are many advantages to legal developments
lagging somewhat—predictability is an important component of
law and order—there are also disadvantages to a legal develop-
ment that risks being too retrospective, conservative, and path
dependent. Particularly, perhaps, in the case of technology, fric-
tion may arise when the regulating concepts have been framed
in an era that has long passed, shaped by conditions that once
prevailed but do so no longer. Much of this can arguably be
attributed to how we understand new phenomena and the new
conditions they produce, and to the concepts we use to recognise
and communicate them.
Metaphors are relevant in the context of technology and
law, not the least due to them demonstrably being very impor-
tant for how we understand events such as legal constructions
as well as digital phenomena. It is important to remember—and
here we touch upon the essence of this book—that metaphors,
although they are often a method of consciously rephrasing a
phenomenon to achieve a certain effect (for instance through
colourful images) are equally often an articulation of a process
that is somewhat obscured from our consciousness; a mental
model that quietly hinders us from thinking in certain modes as
much because it encourages us to think in other given modes. In

7
 C onceptions in the C ode

this manner, these mental models guide our thoughts without

us really being aware of them. By pointing out how we under-
stand abstract phenomena metaphorically, particularly with
regards to how we express patterns or recurring structures, we
may unravel some of the legal challenges that we have to tangle
with as a result of rapid technology-related change. This, then, is
this book’s promise.

CONCEPTUAL STRUGGLES
IN SOCIETAL CHANGE

The analysis of conceptual metaphors is relevant for a broader

phenomenon of how society is appropriating or adapting to
new technology. The concepts are neither neutral, objective,
nor superficial. Copyright is here used as a case to prove this
point, and it draws from multiple studies conducted in the
first decade or so of the millennium where online file-sharing
was intensely debated from a legal, entrepreneurial, and social
point of view.
Contemporary conceptual struggles around big data and the
data practises of massive collection, analysis, and brokerage
show similar traits. Depending on how the issue is framed—
the data practises utilise ‘a resource’ or drive the ‘surveillance’
of individuals—it can be a sign of openness or a threat to pro-
prietary structures. Much of the new services, the way that con-
sumers are profiled or security services operate, revolve around
massive human-centric information gathering, i.e. the data that
arguably is ‘Big’. Sometimes described as the ‘oil’ of the new econ-
omy, as a resource to be harnessed, and sometimes described as
a fluid entity, uncontrolled and overwhelming (cf. Puschmann
and Burgess, 2014). I will briefly touch upon this development

8
9

H ow W e U nderstand T echnological and S ocial C hange

and its relation to the copyright discourse in the last chapter of

the book.
New metaphors guide our understanding of digitally related
phenomena. Some of these become commonplace, but still
affect or shape how we conceptualise a number of key activi-
ties of modern society. For example, it is hard to talk about
contemporary security issues without having to deal with con-
cepts such as ‘cloud’, ‘virus’, ‘leak’, or ‘hack’. It is hard to talk
about contemporary entrepreneurship and innovation without
‘disruption’, ‘sharing economy’, or ‘openness’; it is hard to talk
about the role of media in a digital context without concepts
such as ‘paywall’, ‘streams’, or even ‘cookies’. And, it is most
likely impossible to talk about file-sharing without the meta-
phors that organise it, such as ‘torrents’, ‘swarms’, ‘trackers’, or
‘magnet links’. Similarly, you can’t analyse copyright’s modern
challenges without talking about file-sharing, or deconstruct-
ing what concepts like ‘stealing’, ‘trespassing’, and ‘piracy’
actually bring to the debate.
In short, digital development means a whole new lexicon of
concepts that all relate to an already present conceptual domain.
A reflection here is that metaphor struggles may represent
important points in time for societal change, where aspects of
technology, innovation, business, economy, politics, law, and
the social realm grind their understandings around particularly
challenging events.

NEUTRAL INFRASTRUCTURE OR
FILTERING MEDIATOR?

Some metaphors are explicit and clearly laden with values, such
as Turkey’s Prime Minister Tayyip Erdoğan’s statement at an

9
 C onceptions in the C ode

election meeting in March 2014: ‘We will rip out Twitter by the
roots and erase it!’, following demonstrations that had been
coordinated via social media and the spread of audio recordings
damaging the government’s reputation. That there are values
expressed here are relatively blatant. But such metaphors can also
act implicitly and not wholly consciously, and express a thought
pattern rather than a rhetorical effect. Nevertheless, they may
still remain value-based or lead the mind in a certain normative
direction. It is at this point, when we are led without realising it,
that it becomes even more crucial to place a spotlight on how these
processes occur; which underlying images, conceptual mappings,
and thought structures are leading us; and how these have come to
emerge in the first place.
Returning to the topic of technology, much of the struggles
that follow from the challenges posed by digitalisation concern
responsibility and accountability, i.e. who is seen as responsible
and what they should be held accountable for. And this respon-
sibility is often linked to whether the service being used is per-
ceived as passive or active. Some concepts lead us in one direction,
while others lead in another. ‘Infrastructure’, for example, is a
concept commonly used to indicate services—a ‘mere conduit’—
where, it is argued, the service providers cannot be held wholly
responsible for events that occur there—much as if they merely
provided a railway for trains to run on, or a postman that deliv-
ers the post. Internet service providers have stood in the line of
fire for many years, in a struggle over whether or not they should
be held accountable for copyright infringements caused by their
users’ online actions.4 Another issue that has been long debated

4. How the service provider handled their customers’ data was also the topic of
much debate when the Data Retention Directive was rejected by the European Court
of Justice (Ledendal and Larsson, 2014).

10
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H ow W e U nderstand T echnological and S ocial C hange

concerns the degree to which the service providers should be

allowed to prioritise data in Internet traffic, which is a highly
advantageous option for competitive services such as stream-
ing media. To conceptually portray Internet service providers as
an infrastructure, however, indicates that no priorities should be
permissible—all traffic should be treated equally, and no traf-
fic should be controlled. The subscribers should be responsible
for their own actions. As mentioned previously, Turkey’s Prime
Minister at the time was seemingly of the opinion that the
actual Twitter service itself bears responsibility for the criticism
expressed by its users. Apparently he does not conceptualise it as
a passive infrastructure.
‘Platform’ is another interesting concept that commonly crops
up in digital contexts. It represents what communications and
information science researcher Tarleton Gillespie refers to as a
structural metaphor which ‘though it may go unnoticed by the
casual listener or even the speaker, gives the term discursive res-
onance’ (Gillespie, 2010). The above mentioned Astra Taylor states
that the concept ‘implies a smooth surface, misleads us, obscur-
ing the ways technology companies shape our online lives, prior-
itising and upraising certain purposes over other’ (2014, p. 139).
She has new media giants like Facebook and Google, to which she
devotes much attention, in mind. This is also echoed in the recent
increase in talk of a ‘platform economy’, sometimes shaped as a
critique against the notion of a ‘sharing economy’ (Kenney and
Zysman, 2016). There is, then, a sort of doublesidedness to the
concept; The ‘platform’ comes with a notion of neutrality and even
passivity, but the arguments against this notion in its digital ver-
sion often claim that it still means some sort of activity in that
it may monitor, sort or moderate the activities catalysed by the
‘platform’.

11
 C onceptions in the C ode

One legal case that serves as an example of this argumen-

tative battle around a passive/active duality concerns the court
case against the founders of the file-sharing service TPB (fur-
ther developed in ­chapter 6). Here, the key issue of establish-
ing the TPB founders’ degree of accountability for the illegal
file-sharing facilitated by the site was linked to defining TPB
itself—a task with highly conceptual and metaphorical traits.
Was TPB a platform, a storage service or a bulletin board? To
what extent was it a search engine? To what extent were the
founders entrepreneurial? However, on 17 April 2009, four
men were sentenced to one year’s incarceration as well as being
found jointly and severally responsible for damages of roughly
EUR 3,500,000 for complicity in copyright infringements. Both
parties appealed and the three defendants present during pro-
ceedings in the Court of Appeal were sentenced in the autumn
of 2010 to shorter prison sentences, but increased damages of
roughly EUR 5,400,000.5 This specific case contains a number of
very important questions concerning the point of intersection
between social change, technical developments, and cognitive
understanding of digital phenomena, and actual law itself (cf.
Larsson, 2013c).
During the case, defence lawyer Jonas Nilsson stated that
‘The only thing The Pirate Bay does is passively provide an empty
platform’.6 One of the American plaintiff’s lawyers, Monique
Wadsted, stated during the Court of Appeal proceedings that TPB
was not a ‘passive web site’ and argued that the hyperlinks to dif-
ferent categories on the web site were an instance of simplifying
the web site interface for the benefit of the users, which would

5. The Court of Appeal settled the district court’s verdict for the fourth defend-
ant, who was taken ill abroad at the time.
6. During day twelve at the District Court. Sverige Radio. 3 March, 2009.
http://sverigesradio.se/sida/artikel.aspx?programid=83&artikel=2672385

12
13

H ow W e U nderstand T echnological and S ocial C hange

contradict claims of ‘passivity’ (See SvD’s report, 29 April 2010).7

On the other hand, one of the defendants, Fredrik Neij, stated
that ‘The Pirate Bay is just a transference service, not a storage
service’, which would indicate that the individuals maintaining
the web site and its functions play a passive role that does not
infringe upon copyright law, which is largely designed around the
mechanical reproduction of copies (Larsson, 2010; 2013b). This
description, then, would correspond to an intermediary service,
much like an infrastructure, Internet service provider, or ser-
vice provider that solely mediates, irrespective of what its users
use the service for, which is a keystone of the Swedish Act on
Electronic Commerce founded in the EU directive on e-commerce
(2000/31/EC). Defence lawyer Jonas Nilsson repeated this con-
ceptual link to infrastructure some months later when, after the
Supreme Court had denied a review permit, he argued on ‘DN
debatt’ (a Swedish morning newspaper) on 14 May 2012:

In our view, this is akin to the Post Office being sentenced in

court for delivering a letter of illegal contents. Another, and
perhaps more relevant analogy, would be for the owners of [C2C
sales services web site] ‘Blocket’ to be convicted because a user
had sold a stolen bicycle after placing an advert on their site.8

Naturally, in his capacity as defence lawyer, Nilsson wants to

impress a rhetorical point here: The logical conclusion to this
argument would be his client’s acquittal. Nevertheless, my argu-
ment, this early in the introduction, is to demonstrate that law

7. SvD NÄRINGSLIV. 29 September, 2010. www.svd.se/naringsliv/digitalt/dag-

2-svdse-rapporterade-direkt-fran-the-pirate-bay-rattegangen_5422679.svd
8. DN Debatt. 14 May 2012. http://www.dn.se/debatt/the-pirate-bay-grundare-
gar-vidare-till-europadomstolen/ [Last accessed 10 August 2016].

13
 C onceptions in the C ode

is dependent on how we understand events or phenomena which,

by no means, are necessarily objective facts. I wish to underline
that it is precisely in times of change—such as when digital phe-
nomena emerge in forms we have not previously encountered—
that a greater need for negotiations emerges and the conceptual
struggle is at its most vigorous. It is then that it is the most polit-
ical, and perhaps even the most ontologically flexible.

COGNITION, L AW, AND DIGITAL

TECHNOLOGY

This book is largely concerned with analysing the impact of

technology-related social change. The change we specifically focus
on here concerns digitalisation, i.e. there is a clear technological
component to the book’s theorisation. However, the key point is
not digital technology per se, but rather how it impacts the con-
ditions of society, our understanding of this influence, and how
it challenges legal rules. In other words, this book develops and
analyses the triangular relationship between (digital) technol-
ogy, law, and cognition (how we understand). The book is mainly
based in already published scientific articles that I have prepared
for this collection, as noted in the chapter introductions.
The area of conceptual metaphors—which has largely inspired
my analyses—and what these entail for how we think is a field
that is beginning to become relatively well explored, at least with
regards to more general and theoretical implications, but less
so in relation to the consequences for other disciplines, such as
legal or digital technological fields. This aspect of cognitive sci-
ence research has, to some degree, come to inform legal studies
and what it entails for law and legal practice, despite the major-
ity of the studies being based in a North American perspective.

14
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