Thomas Hoeren from Muenster is talking at the Berkman Tuesday lunch. He’s been described as the Larry Lessig of Europe.

He says there are five ways of regulating information:

1. By statute. But how do you manage statutes across national boundaries? Plus, technology out-races statues.

2. Regulation by courts. Lessig likes this because you have the client there advocating for herself. Hoeren likes it also, but there are problems: Courts don’t have rules. You can’t predict what they’re going to do.

3. Non-regulation. E.g., until 1989, the US avoided having copyright protection for foreign works. In Europe, consumer protection has not been regulated. But, there are areas where constitutions require regulation.

4. Self-regulation. Good, but there are problems. E.g., eBay is self-regulating but is now being sued under European anti-trust laws.

5. Code as Code, technical regulation. This is Lessig’s innovation. Use technology to reinvent the rules. But the DMCA has lawyers helping companies avoid hacking.

In which situation do we use which tool? That is the main issue of information regulation. We need to find a Kantian “regulative idea,” which Hoeren calls “informational justice.”

There are four ways of defining it:

1. Use a constitution. (BTW, he says in Germany they avoid using the word “property” when talking about “intellectual property.” Yay.)

2. International public law. E.g., Kyoto for air quality. But when it comes to information law, there are too many players. He maintains that Article 9 of the Geneva rules is now being used in a way that twists its original intention.

3. Law and economics. Let the efficiency of rules determine how we think in informational law. But there are fundamental values that are not economic: E.g., the moral right of authors.

4. Can we use ideas of procedural justice to determine the meta-rules for information? Presented by Habermas who said we’ll never find a solution for determining common values. But we can find procedural rules of justice. A result is ok if it’s the result of a fair procedure. Hoeren likes this.

Right now there are many procedural injustices, he says. E.g., most of the internal drafts copyright directives in Europe are first sent to the headquarters to the content producers, not the consumer organizations.

Q: (Me) At Harvard there’s a controversy. We try to have fair hiring processes but it has led to an imbalance in gender and race. Inevitably we judge whether a process is just in part by looking at the outcome. But with information, we don’t have agreement about what is just. So, how do we know that the process is just?

A: We don’t have an idea about what informational justice is, so it’s best to try to make sure that the processes are fair and open.

Q: (Urs) Who defines the procedural rules — that’s the meta-meta problem.

A: In Sweden there are many procedural rules for lobbying. The drafts of acts are published and any meetings with lobbyists are posted on the Net.

(John Clippinger asks about the effect of social norms, a point Hoeren very much liked, but I missed it. Sorry.)

Q: (Urs) What about blended approaches?

A: I’m not trying to invent a theory that changes the whole world. I see procedural justice as a type of negative justice: I can determine what is unjust but not what is just.

Q: (me) Let’s say we go through the process and we lose. E.g., Lessig lost the Eldred case. Should he then say, Ok, justice has been served because the process was fair? But he won’t. He has a non-procedural idea of justice.

A: Yes, but I don’t understand that. As a researcher, Lessig ought to be satisfied. The rest of it is religion. Larry is a preacher.

He ends by admitting that there is an old argument between Hegel and Kant about the limits of formalism. And, he says, he’s not a huge fan of procedural justice; he just can’t find anything better.

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