The Governance of Code: Is Code Governance?

AUTHOR

Serena Syme and L. Jean Camp
Kennedy School of Governmental
Harvard University
Cambridge, MA 02138

ABSTRACT

The issues of governance of a network society are tightly bound by the creation of intellectual property rights in that society. Currently the widest range of intellectual property rights can be seen not in the law but in the various licenses, both used and proposed, in the software market. The creation of a market is the creation of a bundle of rights which together create property and further define the rules under which property-based transactions might apply. The fundamental thesis of this work is that the creation of property through licensing offers different view of the governance of the network society. Within our conclusions we identify how the concept of code licenses as a governance mechanism, first described by Stallman and popularized by Lessig, fits and fails when the particulars of code licenses are examined.

Thus this article frames the question of defining the network society by considering the various forms of governance currently applied to code: open code licensing, public domain code, and proprietary licenses. The Uniform Computer Information Transactions Act is used as the exemplar for proprietary licenses. Open code licenses addressed here are the Gnu Public License, the lessor GPL, the artistic license, and the Mozilla license.

We conclude that the licenses are battles over the nature of the network society, and that each has its own hazards. Note that this fits the Stallman/Lessig hypothesis of code as law. We describe the concepts of openness: code availability, non-contamination, non-discrimination, non-specificity, distribution, and integrity. We examine how each license meets or conflicts with this concept of open.

We conclude that each of the dimensions of the open code license has a parallel in the dimension of governance. We argue that code availability is the suffrage of the electronic world. We further argue that derivation reflects privatization of the public commons, and thus disputes on when and if this is appropriate in the open code debates reflect similar larger debates in the policy community. We identify integrity as consumer protection regulation, Non-discrimination and non-specificity prevent the exclusion of an industry, organization, or group from the benefits of open code. This is the equivalent of equal protection under the law, or any ruling which argues that the system of rules should be blind in its application in order for a fair and just application. Yet by examining how these processes or rights might play out in a governance situation by how they function is the software market we identify failures in the argument that code is law.

We then discuss the Uniform Computer Information Transactions Act. UCTIA is characterized by a shift in the concept of information property transactions from sales of property to use-specific licenses. UCITA is a fundamentally different model of governance than the open code models.

In fact, it takes as a given that none of the defining characteristics of open code would hold.

UCITA would implement two common practice which are currently under consideration by the courts; shrink-wrap licensing and click-wrap licensing. Click wrap licenses are the terms proposed in a dialogue box before installing software. Shrink-wrap licenses are the terms imposed in the printed contract in the box. Traditionally the terms of such licenses have often been held invalid because the customer cannot examine the license before purchasing the product.

Lastly, UCITA would make common and legal a (previously) rarely-used legal concept called self-help. Self-help allows a person who is owed a debt to collect on that debt in extreme cases by impounding the goods of the debtor. Electronic self-help allows the producer of software to disable the software on the machine of the customer or licenser if the producer believed the customer were violating the terms of the license.

Recall the core of this work is based on questioning the argument that code is law, examining its weaknesses and identifying its strengths. Recall again that if code is law the rules governing the creation of code become rules governing the creation of law. Thus we seek in history of governance parallels to the UCITA proposals and find them, remarkable enough, in the first volume of the Gulag Archipelago which describes the maturation of the Soviet legal system.

Again the parallels illustrate the strengths of the argument that code is law in that these parallels exist. And once again the parallels illustrate the weaknesses of the concept of code as law and licenses as governance. Again the core difference is the ability to opt out as long as alternatives exist. In effect the difference is the infinite mobility of individuals with respect to the choices of code jurisdiction. (Of course, we include in this work the arguments that UCITA would remove this mobility by effectively destroying open code.)

We identify both the hazards of forgetting that code can rule as well as the hazards of framing our policy with a metaphor; however interesting and powerful that metaphor may be.

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