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How to Make Sure My Cryptokitties Are Here Forever? The Complementary Roles of Blockchain and the Law to Bring Trust

Published online by Cambridge University Press:  24 July 2019

Charlotte DUCUING Open the ORCID record for Charlotte DUCUING [Opens in a new window]
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Abstract

Under the phrase “code is law” and based on its “trustless trust”, blockchain has emerged as a disrupting technology considered by some as an alternative to the law. Based on a study of real-life blockchain-based decentralised applications (Dapps), this article takes blockchain developers at their word and adopts the point of view of users: can blockchain live up to its promise and enable them to transact with each other without the need for the trust granted by the law? The article particularly highlights that users need to be able to ascertain that a self-advertised Dapp indeed qualifies as one. Blockchain technology may make it possible to do away with trust in third parties, but this is not enough. Users also need to trust that an alleged Dapp genuinely is one, and blockchain alone cannot provide this. Beyond Dapps, it is argued that blockchain needs the complementary role of the law to deliver its promises and especially to authenticate blockchain “virtues”. The EU certification mark is identified as a promising form of co-regulation for that purpose.

Information

Type
Symposium on Blockchain Regulation and Governance
Information
European Journal of Risk Regulation , Volume 10 , Issue 2: Symposium on Blockchain Regulation and Governance , June 2019 , pp. 315 - 329
Copyright
© Cambridge University Press 2019 

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References

1 Davidson, S et al, “Blockchains and the Economic Institutions of Capitalism” (2018) 14(12) Journal of Institutional Economics 639.Google Scholar

2 Wright, A and De Filippi, P, “Decentralized Blockchain Technology and the Rise of Lex Cryptographia” (Social Science Research Network 2015) SSRN Scholarly Paper ID 2580664 2.Google Scholar

3 DiRose, S and Mansouri, M, “Comparison and Analysis of Governance Mechanisms Employed by Blockchain-Based Distributed Autonomous Organizations”, 2018 13th Annual Conference on System of Systems Engineering (SoSE) (2018).Google Scholar

4 Finck, M, “Blockchains: Regulating the Unknown” (2018) 19(4) German Law Journal 665.Google Scholar

5 This broadly used expression is credited to have been coined by Reid Hoffman, see R Hoffman, “The Future of the Bitcoin Ecosystem and ‘Trustless Trust’ – Why I Invested in Blockstream”, LinkedIn post, 17 November 2014, <www.linkedin.com/pulse/20141117154558-1213-the-future-of-the-bitcoin-ecosystem-and-trustless-trust-why-i-invested-in-blockstream/> (last accessed 4 July 2019).

6 Atzori, M, “Blockchain Technology and Decentralized Governance: Is the State Still Necessary?” (2017) 6 Journal of Governance and Regulation 45 at p 46.Google Scholar

7 Davidson et al, supra, note 1, p 646.

8 De Filippi, P and Wright, A, Blockchain and the Law (Harvard University Press 2018)Google Scholar Ch 1 “Blockchains, Bitcoin, and Decentralized Computing Platforms” p 29.

9 Wright and De Filippi, supra, note 2, p 28.

10 ibid, p 14.

11 ibid, pp 33–36.

12 De Filippi and Wright, supra, note 8, p 98.

13 Atzori, supra, note 6, p 47.

14 Wright and De Filippi, supra, note 2, p 10.

15 Atzori, supra, note 6, p 51.

16 Werbach, K, “Trust, but Verify: Why the Blockchain Needs the Law” (2018) 33 Berkeley Technology Law Journal 487 at p 509–510.Google Scholar

17 Atzori, supra, note 6, p 54.

18 Ortolani, P, “The Three Challenges of Stateless Justice” (2016) 7 Journal of International Dispute Settlement 596 Google Scholar; Jun, M, “Blockchain Government – a next Form of Infrastructure for the Twenty-First Century” (2018) 4 Journal of Open Innovation: Technology, Market, and Complexity 7.CrossRefGoogle Scholar The author considers that the blockchain would constitute “absolute law”. P De Filippi and S Hassan, “Blockchain Technology as a Regulatory Technology: From Code Is Law to Law Is Code” (2016) 21 First Monday; Kaal, WA and Calcaterra, C, “Crypto Transaction Dispute Resolution” (2017) 73 The Business Lawyer 109 at p 144.Google Scholar The authors consider that “blockchain technology provides its own solutions for jurisdictional issues, governance and conflict resolution”.

19 Pouwelse, J et al, “Laws for Creating Trust in the Blockchain Age” (2017) 6 European Property Law Journal 321 at p 323.Google Scholar

20 Davidson et al, supra, note 1, p 654; Papadimitropoulos, V, “Reflections on the Contradictions of the Commons” (2018) 50(2) Review of Radical Political Economics 317.Google Scholar

21 The Ethereum white paper refers to the Ethereum blockchain as a “virtual machine”: Buterin et al, “A Next-Generation Smart Contract and Decentralized Application Platform (‘Ethereum White Paper’)” <github.com/ethereum/wiki/wiki/White-Paper> (last accessed 4 July 2019).

22 Shermin, V, “Disrupting Governance with Blockchains and Smart Contracts” (2017) 26 Strategic Change 499.Google Scholar

23 Buterin et al, supra, note 21.

24 Arruñada, B and Garicano, L, “Blockchain: The Birth of Decentralized Governance” Pompeu Fabra University, Economics and Business Working Paper Series 1608, p 6.Google Scholar

25 “DAO” was also used to refer to “Distributed Autonomous Organization” (emphasis added), in Davidson et al, supra, note 1, p 5; and Finck, supra, note 4, p 7.

26 Atzori, supra, note 6, p 46.

27 Jun, supra, note 18.

28 Davidson et al, supra, note 1, p 7.

29 DiRose and Mansouri, supra, note 3.

30 Werbach, supra, note 16, pp 506–507.

31 V Buterin, “DAOs, DACs, DAs and More: An Incomplete Terminology Guide” (6 May 2014), available at <blog.ethereum.org/2014/05/06/daos-dacs-das-and-more-an-incomplete-terminology-guide/> (last accessed 11 July 2019).

32 D Johnston et al, “Decentralized Applications White Paper and Spec. Contribute to DavidJohnstonCEO/DecentralizedApplications Development by Creating an Account on GitHub” (2018) <github.com/DavidJohnstonCEO/DecentralizedApplications> (last accessed 4 July 2019).

33 This definition is notably referred to in the study of the European Parliament on blockchain technology: P Boucher, “How blockchain technology could change our lives” European Parliamentary Research Service, 2017, 20.

34 E Mik, “Smart Contracts: Terminology, Technical Limitations and Real World Complexity”, available at <papers.ssrn.com/sol3/papers.cfm?abstract_id=3038406>. The author highlights the following belief (a statement that she then criticises): “if the platform itself is trustless, there is no need for any third parties to […] reduce the transactional risks that are present on an insecure platform. On a trustless platform, such risks are simply absent”.

35 See <storj.io/> (last accessed 4 July 2019).

36 See <lazooz.org/> (last accessed 4 July 2019).

37 See <www.cryptokitties.co> (last accessed 4 July 2019).

38 See <kleros.io> (last accessed 4 July 2019).

39 See <openbazaar.org> (last accessed 4 July 2019).

40 Lesaege and Ast, Kleros Short Paper v.1.0.5, January 2018.

41 Werbach, supra, note 16, p 545.

42 Wright and De Filippi, supra, note 2, 21.

43 Zhang, Your CryptoKitty Isn’t Forever – Why DApps Aren’t as Decentralized as You Think, 3 December 2017, <medium.com/loom-network/your-crypto-kitty-isnt-forever-why-dapps-aren-t-as-decentralized-as-you-think-871d6acfea> (last accessed 4 July 2019).

44 CryptoKitties Terms of Use, Art 2.C (version last updated 15 November 2018, <www.cryptokitties.co/terms-of-use>) (last accessed 4 July 2019).

45 Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market [2005] OJ L 149/22 (the UCP Directive).

46 ibid, Art 6(1)(b).

47 ibid, Art 6(1)(f).

48 De Filippi and Hassan, supra, note 18. The phrase “code is law” was first used by Lawrence Lessig, Code (Version 2.0, Basic Books 2006) p 20.

49 Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce [2000] OJ L 178/1 (E-Commerce Directive).

50 Werbach, supra, note 16, p 518.

51 The expression was coined in Akerlof, GA, “The Market for ‘Lemons’: Quality Uncertainty and the Market Mechanism” (1970) 84 The Quarterly Journal of Economics 488.Google Scholar

52 The lack of understandability of the blockchain vocabulary as hindrance to broader acceptability is taken as a given in J de Kruijff and H Weigand, “Towards a Blockchain Ontology” (2017).

53 Yeung, K, “Regulation by Blockchain: The Emerging Battle for Supremacy between the Code of Law and Code as Law” (2019) 82 The Modern Law Review 207, 219.Google Scholar She quotes Paech, who argues that “blockchain financial networks are much more likely to take the form of permissioned networks, involving clear control nodes […]”.

54 De Filippi and Wright, supra, note 8, p 136.

55 Atzori, supra, note 6, p 51.

56 A Garapon and J Lassègue, Justice digitale (PUF, 2018) p 150.

57 Wright and De Filippi, supra, note 2, p 16.

58 See <www.dappsfund.com> (last accessed 4 July 2019).

59 Atzori, supra, note 6, p 57.

60 See <www.stateofthedapps.com/> (last accessed 4 July 2019). It is referred to on multiple blockchain-related websites and forums. See also, among others <dappradar.com/> (last accessed 4 July 2019).

61 See for instance Werbach, supra, note 16, p 506.

62 See <www.stateofthedapps.com/about> (last accessed 4 July 2019).

63 Terms of Use of State of the Dapps, Art 1 <www.stateofthedapps.com/terms> (last accessed 4 July 2019). See also the Terms of Use, Art 5.

64 The section “about” refers to State of the ÐApps as a “not-for-profit curated directory of Decentralized Applications”, supra, note 62.

65 See <www.stateofthedapps.com/promoted-dapps> (last accessed 4 July 2019).

66 It is notably reported in the list of “top Dapps” accessible on <www.stateofthedapps.com/rankings> (last accessed 4 July 2019).

67 Werbach, supra, note 16, pp 512–513.

68 Atzori, supra, note 6, p 58.

69 Mik, supra, note 34; Walch, A, “Blockchain’s Treacherous Vocabulary: One More Challenge for Regulators” (2017) 21 Journal of Internet Law 1 at p 10.Google Scholar

70 Among many others, see <www.technologyreview.com/s/610885/a-glossary-of-blockchain-jargon/>, <blockgeeks.com/guides/blockchain-glossary-from-a-z/>, and <blockchainhub.net/blockchain-glossary/> (all last accessed 4 July 2019).

71 Walch, supra, note 69, 11–13.

72 MIK, supra, note 34, pp 7–9.

73 Atzori, supra, note 6, p 58; A Walch, “In Code(Rs) We Trust: Software Developers as Fiduciaries in Public Blockchains” in Hacker, P et al, Regulating Blockchain: Political and Legal Challenges (Oxford University Press forthcoming).Google Scholar

74 Among other stumbling blocks, some consider a DAO as an egalitarian entity, see N Diallo et al, “EGov-DAO: A Better Government Using Blockchain Based Decentralized Autonomous Organization”, 2018 International Conference on eDemocracy eGovernment (ICEDEG) (2018) p 167.

75 The DAO was “one of the first decentralized venture capital organizations deployed on the Ethereum blockchain” and its operation, instead of being traditionally delegated to a management team, was “defined using smart contract code”: De Filippi and Wright, supra, note 8, p 137.

76 ibid, p 146.

77 While Atzori considers that DAOs are “self-sufficient agents derived from artificial intelligence” (Atzori, supra, note 6, p 46), De Filippi and Wright consider that a DAO may gain its autonomy not only from artificial intelligence, but also from “the aggregation of several code-based systems, which for a larger coordinated system” or in other words by “stigmergic process”: De Filippi and Wright, supra, note 8, p 149.

78 Kaal and Calcaterra, supra, note 18, p 19.

79 Atzori, supra, note 6, p 58.

80 V Buterin, “DAOs, DACs, DAs and more: an incomplete terminology guide”, 6 May 2014, <blog.ethereum.org/2014/05/06/daos-dacs-das-and-more-an-incomplete-terminology-guide/> (last accessed 4 July 2019).

81 For a further explanation of the “benevolent dictatorship” phenomenon, see Atzori, supra, note 6.

82 Werbach, supra, note 16, pp 534–549.

83 ibid, p 38.

84 Werbach, K, “The Song Remains the Same: What Cyberlaw Might Teach the Next Internet Economy” (2017) 69 Florida Law Review 887 at p 919.Google Scholar

85 Fenwick, M, Kaal, WA and Vermeulen, EPM, “Regulation Tomorrow: Strategies for Regulating New Technologies” in Kono, T, Hiscock, M and Reich, A (eds), Transnational Commercial and Consumer Law: Current Trends in International Business Law (Springer Singapore 2018).Google Scholar

86 Werbach, supra, note 16, p 37.

87 De Filippi and Wright, supra, note 8, p 189.

88 MIK, supra, note 34, p 13.

89 De Filippi and Wright, supra, note 8, pp 173–192.

90 Act of September 21 2006, ch 26, Ariz. Rev. Stat. Ann. § 44-7003 (2006) (amended by 2017 Ariz Sess Laws 2417), <legiscan.com/AZ/text/HB2417/id/1528949>.

91 Walch, supra, note 69, p 10.

92 Walch especially hints at the debated feature of “immutability” of blockchain, which has been included in the law of Arizona while the blockchain community still lacks a common understanding of its contours and even of its existence: Walch, supra, note 69.

93 The principle of technological neutrality particularly applies in electronic communications law, in the E-Commerce Directive and in the GDPR. See Thompson, M, “The Neutralization of Harmony: The Problem of Technological Neutrality, East and West” (2012) 18 Boston University Journal of Science & Technology Law 303.Google Scholar The reach and scope of technological neutrality in ICT policies are however subject to controversy, see Reed, C, “Taking Sides on Technology Neutrality” (2007) 4 SCRIPTed 263.Google Scholar

94 See <www.iso.org/committee/6266604.html> (last accessed 4 July 2019).

95 It could particularly constitute misleading action within the meaning of Unfair Commercial Practices Directive, Art 6(2)(b).

96 Finck, supra, note 4, p 686.

97 Regulation (EU) 2017/1001 on the European Union trade mark [2017] OJ L 154/1 (European Union Trade Mark Regulation), section 2 of chapter VIII.

98 A Ringelhann and S Martin, “Defining the EU Certification Mark” (2018) 13 Journal of Intellectual Property Law & Practice 625 at p 626.

99 ibid, p 627.

100 European Union Trade Mark Regulation, Art 83(1).

101 ibid, Art 90.

102 ibid, Art 91(b).

103 ibid, Art 83(2).

104 ibid, Art 84(2).

105 ibid, Art 84(1); Ringelhann and Martin, supra, note 98, pp 628–629.

106 Repas, M and Keresteš, T, “The Certification Mark as a New EU-Wide Industrial Property Right” (2018) 49(3) International Review of Intellectual Property and Competition Law 299 at p 303.Google Scholar