Proceedings of the First International Mobile Ipr Workshop: Rights Management of Information Products on the Mobile Internet

Shifting from Risk regulation to Risks produced by regulation, this study attempts to explore the emergence and operation of regulatory Ecologies as an organic approach for dealing with the issue of Risk and regulation. Objective of this paper is to investigate the reasons behind regulatory failure and set a research agenda for dealing with the issue of technology regulation, in a two-step approach. The first step is of a methodological nature: it calls for the adoption of an alternative stance for studying the regulatory phenomenon by viewing the content of regulation as a direct result of its creation process and focusing on the latter at least as much as on the former. The next step is to re-conceptualise regulation not as a means for controlling and delimiting contingencies but as an instrument for their proliferation. The Open Source development of the Gnutella protocol is illustrated as such an alternative regulatory paradigm and contrasted to a model of regulation based on control of contingencies such as that of Trusted Computing Platform or Technical Measures of protection. 1. Instead of an introduction: from regulating risks to risky regulations Regulating Risks can be a risky business. This is by no means a new observation. Sunstein’s [56] example of pollution regulation is an illustrative one: the introduction of regulations that render mandatory the installation of emission control equipment on new motor vehicles could alleviate their cost and lead car owners to retain their existing old vehicles thus increasing instead of delimiting the air-pollution levels. The case of oil spills regulation exhibits a similar pattern: cleaning oil spills often involves the use of methods and substances that may themselves be dangerous for certain ecosystems whereas the possibility of further pollution dispersion as a result of the cleaning efforts cannot be excluded [30]. It seems that attempting to intervene in any complex system entails a multiplication rather than mitigation of Risks. Grabosky [26], in an attempt to illustrate the typology of risks emanating from a variety of regulatory interventions, presents an array of regulatory examples ranging from asbestos removal [63], disposal of hazardous waste [12] and crossborder pollution [4] to liability laws that stifle business innovation [52] or tax regulation that creates parallel markets for tax avoidance enterprises [28]. Building regulation is notoriously difficult. Implementing it is even harder [46]. But what happens when the unintentional consequences become the norm, when regulation produces uniformly patterned behaviour, which is not the one desired by the creators of the regulation? We could put the blame on the politicians that are more interested in short term results and risks perceptions rather than long term solutions and the addressing of the actual risks [39]; we can talk of “bad science” or even “engineering flaws in the design and implementation of regulatory activities” [26]. However, the problem of “counter-productive regulation” [26] remains and is here to stay for as long as we approach it epidemically refusing to challenge its underlying premises [6]. A closer look at the evolution of regulation -both as theory and as practicein conjunction with the trajectories of various technologies is essential to gain some insights into the problem of Risk. Regulation theory has for a long time attempted to address issues of environmental, health or even financial risks [50]. As theories and practices of regulation came to a level of maturity in the mid 1990s [6] questions related to the risks created by regulatory intervention started emerging [26]. The issue was not just how regulation could contribute to the mitigation or management of risk of complex systems like the environment or financial markets,