L. Lawyer worries nature

Law is consulted on the subject of convention — Larry Lessig takes the case — Lessig's work critiqued — some ideology surrounding the regulability of the internet is denounced — 'Nature' identified as culprit — Lessig replaces nature with code — values are sought, but not found — the first person plural becomes very annoying — an aporia of value is stumbled on — the forgotten role of government is remembered — "We are the World" — the values of the internet are identified by Lessig and proposed as a new constitution — efficiency is decried as an inadequate value.

1. Before we come to Eric Raymond and the outsourcing of opensource.org, suffer a digression through law. It seemed appropriate, in thinking about the political nature of FSF's legal programming to ask the legal profession about the internet. "Cyberlaw" as an emerging branch of legal scholarship, still, unfortunately saddled with a metaphor of another space, is represented in fine form by one Lawrence Lessig of the Berkman Center for Internet and Society at Harvard Law School, and provides one kind of peculiar answer. But more than answer, more than simply a reasoned assesment of issues surrounding FSF and opensource.org, Lessig has made a movement, replete with a mixture of rhetorical outrage and legal clairvoyance about the centrality of the internet to life in general. Lessig's movement is not a third wave or an economy of ideas or any version of a liberatrian paradise. Lessig reserves only impatience for these.

2. What Lessig does consider, and what makes it crucial to the problematics of scale and convention, is the nature of software as regulation. Where I come from the left, following the rainbow from standard to software, Lessig come from the right, following law to regulation to software. Lessig's rightness is less conservative, however, than classically liberal, reaching backwards to J.S. Mill in order to straighten the swerve from liberalism to libertarianism and respond, full circle, to the incessant anti-governmentalism of the present. This section introduces his various writings, adding law to the spectrum of conventions that started with standards[1].

3. Lessig's work begins with good analytic distinctions, "four sorts of constraints" that regulate (in "The Laws of Cyberspace")[Lessig98a]: Law, ex post, with the threat of punishment; 'social norms'— understandings, expectations, behaviors; markets, which regulate by price, delimiting opportunity; and finally "there is the constraint of what some might call nature, but which I want to call 'architecture.' This is the constraint of the world as I find it, even if this world as I find it is a world that others have made." A fine set of distinctions to begin with.

4. These four kinds of regulation are all just as relevant "on the net" as off. All of Lessig's writings at some point unleash a vitriolic sortie against the techno-libertarian promise of absolute freedom in cyber-space. He is relentless in his attack, unforgiving in his mortification, humorless in his impatience— it is a clear, repetitive voice that has no patience for the 90's style Wired-inspired consensus that cyberspace cannot be governed. On the contrary, he instists, we are on the verge of regulating ourselves thoroughly, submitting ourselves to complete control, without discussing it— without even recognizing it. To make this case, Lessig draws closed the analogy of architecture with nature—the given— by equating them with "code." "Code" is a code, however, and Lessig is perpetually skirting a more difficult philosophical problem whose password is not nature, but language. His shaky defining shifts from paper to paper, a hesitance of familiarity with either technology or philosophy, maybe both: "By code, I simply mean the software and hardware that constitutes cyberspace as it is— the set of protocols, the set of rules, implemented, or codified, in the software of cyberspace itself, that determine how people interact or exist, in this space" (4), later "The code or software or architecture or protocols of these spaces..." The code is a force, the code is a sovereign, the code is law, the code is regulation.

5. Lessig's imprecision is infectious. His first example—the availability of pornography to children— finds him reducing his careful distinctions of constraints all to the one constraint of architecture, which in this case is nature confused with identity. That is to say: in real space children cannot buy porn because they are children— architecturally speaking— but in cyberspace, as the saying goes, no one know you're a dog, hence the constraint of architecture-nature-identity does not operate the same way. His next example, in which he explains how Univerity of Chicago and Harvard have diffferent philosophies of access. U CHicago allows direct anonymous access to the net, dynamically assigned IP addressed, perhaps, allowing law students (or anyone, if Lessig is to be believed) with laptops to jack in anywhere on campus. At Harvard, however, Law students can connect to the internet only if assigned a recognizable IP address . If the intranet recognizes you and your machine, you can connect to the internet. Others cannot. Two different architectures with two different philosphies behind the decision: access vs. control. "These architectures enable political values. They are in this sense political" (9). Regardless of this philosophical problem or definition, one point comes through: that the internet's architecture is not inherently open, it is historically open, and it depends on a continuous vigilance to keep it open, a vigilance that is lost when pundits promise that cyberspace is unregualable. Indeed, "Laws of Cyberspace" finds Lessig in a state of high anxiety about this dangerous naïveté, frightened to the point of hyperbole that the our Constitution has been jettisoned in favor of some Parody of Orwell:

But my view is absent in thinking about governments role in cyberspace. Indeed, my nation for many years the symbol of freedom in world where such freedom was rare has become a leader in pushing the architecture of the internet from an architecture of freedom to an architecture of control. From an architecture, that is, that embraced the traditions of freedom expressed in our constitutional past, to an architecture that is fundamentally anathema to those traditions. (10)

6. Pointed. Out of this failing, Lessing spins a fantasy of Stalinist control in which the US government, almost unwittingly comes to facilitate the low cost complete control by governemnts of people anywhere and everywhere. His analogies are passports, drivers licenses and certificates, which in "real space" are difficult and costly to control, but which in cyberspace become a nearly costless transaction of constant monitoring. "We must come to see how this code is an emerging sovereign— omnipresent, omnipotent, gentle, efficient, growing— and that we must develop against this sovereign the limits that we have developed against real space sovereigns."(16)

7. "Laws of Cyberspace," dated March 1998, has since been extended, and perhaps tempered as Lessig has added detail to this alarmism. (As of this writing, Lessig's various papers and revisions of papers all point to a forthcoming book, Code and Other Laws of Cyberspace, which one can only assume will consolidate the insights haphazardly poached here) In particular, Lessig's paper "Jefferson's Nature" [Lessig98c] extends his thoughts on nature via a familiar quotation from Jefferson about the possession of ideas, in which he conjoins appropriability and immateriality, and muses on the conundrum of how posessing ideas does not diminish them. This, Jefferson suggests, is the conspiracy of nature with thieves in the constitution of ideas. Lessig cues his continuing attack on the libertarian fantasy of an unregulable cyberspace:

My aim in this talk is to challenge this thought [that Cyberspace is 'naturally' unregulable]. It is to challenge this view about nature and cyberspace, as well as challenge this view about nature in real space. My aim, you might say, is nature talk all around. Not so much because I'm against nature; but because I'm against the security this talk about nature gives us. Nature, in my view, is just the way things are when its too hard to imagine how they might be different. But these natures— these natures about cyberspace and about the nature of inventions and property are natures that we can easily imagine being different. (3)

8. A dangerous argument perhaps, especially in an era when the 'nature' daily renewed for us by biologists commands a peculiar attention over and against the 'nature' Lessig identifies, which common sense is more accustomed to calling 'culture.' But, again, hyperbole, like sarcasm is sometimes the most direct access route to entrenched ideology, and so the 'nature' of cyberspace is desedimented and we are reminded anew that it is an architecture— a given that is changeable, even if such change is difficult— that constitutes the borders, shape, and 'nature' of this space. If Lessig's client is law, it is philosophy who is made to wait on the bench outside, since this is but a familiar argument about the nature of nature, in which property and quality relate things to each other based on their identity and difference. The relation between the given and the appropriable, the appropriation and dispropriation of properties, and the conditions of possibility of 'giving' in general and without reserve, without reference to some regulative appropriability guaranteed by nature, in a tautological relation to the given— all of this and the politics of enclosure, enforcement and violence that follow are the province of a philosophical questioning for which common sense, the legal establishment, and most of all the corporate media have no time [2].

9. But perhaps philosphy's case— a personal injury case— can wait, since it is Law's case— a constitutional emergency— that is most urgent. Lessig is less interested in truth than in the dangerous failings of reason and history that he sees unfolding around him. He returns to the constitution: the protection accorded ideas by the U.S. constitution—"to promote the Progress of Science and the Useful Arts"— was to be limited in time, and the protection only a stimulus. However, our current congress, according to Lessig, has forgotten this [3], blinded by the speed and scale of the internet and its near literalization of Jefferson's 'idea' as something that spreads like fire, never diminishing in the infinite extensibility of space. Lessig queries:

Why the danger: But we should pause a moment to ask just why there is a danger to copyright in cyberspace. What about its nature makes this danger so great? Why is it that copyrighted material can be copied without limit; why is it that it can be distributed to millions of machines in a couple days. What makes it such that the nature there is the world Jefferson spoke of but more? (5)

10. Lessig responds:

It takes just a moment to understand what laws of nature make this so. It takes just a reflection to understand why things are as they are. We can give this nature a name a name that will identify just why the space is as it is. The name is code. (5)

11. Now this will not be the first time nature has been named code, even that nature distinguished above as the enuciatory property of the biologist, where regardless of its naturalness, nature is repeatedly referenced as a code, indeed, the code, not one among others. However, Lessig is against nature here, or rather against the naturalness of code. In his hyperbole, in his passionate attack on common sense, code is what 'we' write. Code is positive Law. Code is conventional, in the sense of an agreement achieved through cooridination of some kind, not natural, not even mimetic of Nature. Code is the architecture of 'cyberspace'. The lack of specificity works in his favor here, because it allows him to avoid getting trapped in the intricacies of standard, nonstandard, and prorietary code, along with the vagaries and tragedies of interoperability that we have seen glimpses of above in the examples of Amicas and Partners Telemedicine. Instead, Lessig is freed to insist on the relation that arcitecture of the net has to our values.

12. We are in control of code. Throughout Lessig's entire corpus, "we" are the invisible, unarticulated, chimeric agents of this 'nature'. Who are we, though? Who is this 'we?' Or more importantly— since who? always implies an exclusion, and "we" want to include everyone— where are we? This is precisely the problem of locating 'us' 'in' space, or 'in' cyberspace. Where are we when we write code? In congress? In a voting booth? In front of a computer, getting code to 'work'? Is code in our heads, in our computers, on the network, in a constitution, and if "we" are responsible for it, how do 'I' answer 'with' someone else, thus becoming a 'we' again? Is the 'we' whole and stable, or is it dynamic, if dynamic, how is stability achieved? Before we stray too far down the tantalizing path of philosophical questioning, however, we should let Lessig lead us to it less prosaically and more urgently.

13. From the digression on the structure of standardization on the internet above, it should be clear how decisions as to the architecture of the net were made up until very recently (see section E above). When commerce jacked in to the web, this architecture met it's test. Over the last five years, the technologies that have been designed to take advantage of the basic internet services, and more importantly, the nascent and much less fundamental protocols that make up the world wide web, have been stretched, added to, reconfigured, abused, replaced with abandon. The relatively closed world of open values that the internet had itself embraced and extended from its narratives and myths of science and scientific method burst open to the commercial and political versions of closure and pluralisms of value— and it brought us to the brink of this particular technological horizon of market economy and democracy. All along the internet has had structure, it was never radically open (and even Lessig wavers on this, occasionally engaging a rhetoric of loss of freedom, occasionally a argument for the design of freedom), and could be configured to assault or guarantee any number of values 'we' hold. This is what Lessig insists on against all futurological declarations to the contrary.

The Word is commerce. As the world goes by believing the anonymity of this space is somehow inherent, business is working furiously to lay onto the architecture of cyberspace technologies that would facilitate identity, and therefore technologies that would facilitate control. Technologies that would facilitate the ability to know who someone is, where someone comes from. The ability to automatically know this; and the capability, then, to make decisions about access and liability based on this information.(8)

14. Here, for the first time, we catch a glimpse of who it is that will be controlling us. Stalinist fantasies of passports and identification cards turn out to be Lessig's rhetorical sleight of hand, his own weakness to a common sense cold-war polarization of value. No, it is business— good 'ol communism-defeating American capitalist business— that is identified with this problem. If the IETF was formerly in charge of making the decisions, of creating the architecture, of being the de facto governers "rulers with humility"(10), slowly commerce emerges as the creator:

But these governors [the IETF] are slowly being replaced. Or not so much replaced, as displaced. Displaced by codewriters of a different sort— code writers who answer to suits, to commerce, to the business they work within, not code writers who answer to the elegance of an argument. Now in their place — in the place of governors of the sort of IETF — in their place has emerged an idea, not much of an idea, more a grunt than an idea, but an idea nonetheless. It says this: "The single unifying force is that we dont want the government running things." (10-11)

15. In this and several other papers, Lessig repeatedly quotes this last, arresting sentence. By 1998 the 20 year-old fashion for deregulation and privatization rarely expresses itself with such singular boldness, and Lessig finds in it a crisis expressed everyday in America: that we have lost an understanding of the role of government. The sentiment of anti-governmentalism is implicitly attributed to the corporate interests that are here identified as the de facto legistators of our cyber-natures. Complexity lurks, however, and the example that stories this crisis concerns how a single lawyer representing diverse interests came to be the sole person responsible for writing the draft of ICANN (the internet corporation for assigned names and numbers); the same lawyer, it turns out, responisble for the quotation above (the story is narrated in the paper called "Governance" [Lessig98b]). The lawyer is not a corporation, nor, according to Lessig's story, does he represent any one in particular. For Lessig it is no less a story of the failure of process, a story of how the government conceded control over the registration and management of domain names— even a story of how the consensus on anti-governmentalism is so positively overwhelming that even the government is falling over itself to concede the right to govern. Lessig rages rightly at this absurdity, this obviously mad disavowal of governance, even if his implicit targets are corporate rather than individual, and in his backyard, so to speak. His rage is acceptable, even if misdirected, but what makes this strange rage so puzzling is 'us':

We have lost this idea, we inheritors of the 21st century. We have lost the ideal that there is a role for government here. We— especially we who spend too much of our life using electrons to interact; we— especially we, who still stand amazed at the potential of this wired world; we— especially we, who cant remember a time when there wasnt an underbelly to every story about a hero. We— children of David Lynch, who cant help but believe that, just underneath the surface of the sensible, there is a decay that cant be avoided. We listen to the promises of our governors no differently than Soviet citizens listened to the promises of their governors. We, like Soviet citizens, have heard it before. "Hope" is not a place; "Hope" was a television commercial. (12)

16. 'We' are so alarmingly self-evident here that one might accuse Lessig of thinking that America is the world, or worse, that America owns the world, that it is, after all, "our world." This wouldn't be so far from the mark, as will become evident, but for now, it is important to recognize the uncertainty that Lessig identifies in 'us':

But the first point to see is that it is we who chose the values; it is we who should decide what this space will be. It is we who should decide this, and yet this is just what we are unable to do. Unable, because we think incapable; incapable because collective choice is something in which we no longer believe. (9)

17. We value. There is hardly any space between the words, and even together they can barely bear what they're made to. Values are our nature, they are the only thing we have that can influence or control this law we make— this code. For lessig, values— especially U.S. constitutional values— are the only thing we have (and we do 'have' them in this formulation, they are proper to 'us', and for now it is less important who 'we' are and more important to recognize that the nature of 'we'-ness is that is posesses its values, this is easily confused with the posession of values by individuals, which is normally distinguished by the word 'interests') which can influence standards, norms, regulations, laws and cultures, in short, for Lessig, code. But what is the source of these values? Where do they come from? Values issue from governance. They issue from that which brings 'us' together and by which 'we' regulate ourselves. Values are the regulating-regulated. Lessig has accidentally stumbled on precisely that aporetic foundation of law that Derrida so elaborately unwinds in Force of Law [Derrida92]: that the only basis of right is its assertion, that there is in fact no guarantee, no nature, no culture, only code. This aporia, far from being the sole province of French philosophers, is precisely what Lessig identifies here:

We are at a time when the most important judgments about how this new world will be made are being made. And yet, we are strangely disabled — immobilized by ourselves — from making choices about that new world. Laws are being written in the code that that space will be, yet we have no idea how we might participate in the writing of those laws, and little desire to do so. (12)

18. But Lessig does not stop with aporia. That would be very unlawyerly. Rather he offers two reasons for this immobilization. The first is that the protection of idealized values— such as liberty— is confused with the absense of government. For this he blames lawyers— calls them unlawyerly, not possessing what is proper to lawyers— and his reference is Mill, whose method "should be our own"(12) when we try to discern the status of our ideal and real values. But the second is more significant: the skepticism "we" hold towards governments. Lessig's honesty about this admits of no solutions, he "shares this skepticism,"(14) (with who!?) but only wants to know this disavowal's source:

I don't believe that our skepticism about governance is a point about principle. We are not, most of us, really Libertarians. We may be anti-government, but for the most part we do believe that there are collective values that ought to regulate private action. Our problem is that we don't know by whom, or how. We are weary with governments. We are profoundly skeptical about the product of democratic processes. We believe, whether rightly or not, that democratic processes have been captured by special interests more concerned with individual rather than collective value. While we believe that there is a role for collective judgments, we are repulsed by the idea of placing the design of something as important as the Internet into the hands of governments.

19. Again, "we" are the foundation of value. This 1st person plurality that offers self-evidence in the place of any identification of actual values. But the internet is drowning in collective forms of all kinds from corporation to 'community'. As an example, Lessig offers ICANN again, pointing out that the charter for the corporation refers to it as "a non-profit corporation devoted to the collective interest," and insists that the only thing that differentiates this body from government is the requirement of elections. His indictment intends to include everyone (but who? Americans? Citizens? stateless refugees?) in this failure:

This is extremely odd behavior for democrats. That the idea that a governmental body, whether American or international, should set this governing policy was not even considered is a profoundly interesting fact about us. It says something about us — about where we have come in this experiment with Democracy. We have lost faith in the idea that the product of representative government might be something more than mere interest... (15)
If we hate government, we hate it not because the idea of collective values is anathema; if we hate Government, we hate it because we have grown tired of the corruption of our government. We have grown weary of its betrayal, of its games, of the interests that control it. We have grown weary, but we must find a way to get over it. (15)
For we stand on the edge of an era when fundamental choices about what life in cyberspace, and therefore, life in real space, will be like. These choices will be made; there is no nature here to discover. And when these choices are made, they will be made either with the values that we hold sacred influencing the choices that are made, or they will be made ignoring these values. There are values that we have in this space — values of free speech, or privacy, values of due process, or equality, values that define who we are, and which should lead us to ask — if there is not government to insist upon them, then who? (16)

20. This story of anti-governmentalism and of the lawyerly— and fundamentally unconstitutional— way that the ICANN was arrived at is an allegory for this aporia of collective judgement. If the source of 'our values' is governance and the one thing 'we' are devoted to bypassing is government, then we find ourselves at the foundationless foundation of all regulation— of the fact that value must issue from somewhere, even if the origins of that value were arrived at be means strictly and precisely anathema to those values. This is not a new insight. What is new concerns the scale of the internet. The internet's location has riven 'us'. The internet— this new space— this public sphere that is outside of any nation, but 'in' all of them, that is outside of any corporation, factory, university, institution, home, but 'in' all of them, means that value is in crisis, precisely because value is always and only "our" value— it cannot exist without being shared— and 'we' are no longer the same 'we', no longer is the we that decides first spatio-temporally together, it is an asynchronously transnational we.

21. This recognition of the regulated/regulating aporia of value (symbolized in money— that mystifying source of value— which presents the related problem of the fact that money has become pure information, yet still represents a value that has no fundamental ground except inasmuch as it is shared) and its transformation by the internet should be enough for one paper, but Lessig — ever the practical, lawyerly and logical leader— takes one step further. Presenting the story of Daniel Webster's 1851 speech: "Mr. President, I wish to speak today, not as a Massachusetts man, nor as a Northern man, but as an American," Lessig claims that it is situated at the origin point of national American identity and represents the birth of collective action at a national and corporate level. "We" sit at the business end of this allegory, with our skepticism of collective action and naive anti-governmentalism:

We stand today just a few years before where Webster stood in 1851. We stand just on this side of being able to say, "I speak as a citizen of the world," without the ordinary person thinking "What a nut." We stand just on the cusp of an existence where ordinary citizens come to know how the world regulates them. Where ordinary citizens begin to feel the effects of the regulations of other governments, as the citizens in Massachusetts came to feel the effects of slavery, and the citizens in Virginia came to feel the effects of a drive for freedom. As we, citizens of the United States, spend more of our time, and spend more of our money, in this space that's not really part of any particular jurisdiction, but subject to the regulations of all jurisdictions— as we spend more time there, we will increasingly come to ask questions about our status there. We will increasingly feel the entitlement that Webster felt, as an American, to speak about life in another part of America. But for us, it will be the entitlement to speak about life in another part of the world. (17)

22. I want to give Lessig the benefit of my doubt here, appoint him the ambassador of the moral equivalent of imperialism. Because I think he is right, that the internet, and in particular its ability to scale itself to the size of a world that used to represent totality— in a single click— is in fact bringing about a crisis, not of national governance, but of international governance. But instead I can only let this final assertion waver uncertainly between self-evidence and outrageousness. The latter since this specific allegory of Webster and the Civil War recapitulates the trauma of American Slavery on a world-wide scale, without the specificity of either an exceptional American institution or an unsupportable international division of labor. The former because even without the code of the internet, even without the wires and satellites and glass, there has been no shortage of American entitlement to speak about—and for— life in just about every other part of the world. We value.

23. Perhaps we shouldn't take Lessig as seriously as he takes himself, even if we can agree that the rhetoric of anti-governmentalism and the techno-liberatarian nonsense about frontiers is rank. This is all the more curious and compelling, since along with myself and the rest of the world, Lessig discovered "open source" and began writing about it in late 1998, and has since turned it into a kind of revolutionary movement, regardless of its libertarian ethics or its disingenuousness about the political issues surrounding property, their guarantee by governments and their relationship to international corporate capitalism.

24. So even if we dare scoff at theis pre-millenarian promise of world-government, "the code is law" appears to have found its manifesto, its commune, and in Richard Stallman, its idol.

Epiphany and Manifesto

25. "Open Code and Open Societies," dated May 11, 1999 [Lessig99b], scales drop from eyes, Lessig's epiphany. As usual, the familiar allegory of scientific method opens the piece. But in this case openness recurses through Fermat's last theorem, Andrew Wiles attempted solution of it and its internet distribution, correction and subsequent solution. This version at least has the savor of example, rather than the stench of cliche that inflates every other parable of the freeing of software. A prosaic story for a prosaic revelation. Lessig recounts his months-long attempt to convince people that "the code is law" ("I've been selling this line for what seems to be a very long time— months, which in internet time is a generation"(6)), about his insistence that we must reference our values in the code, especially those values "we" value most: the U.S. Constitution. But then, a revelation:

And recently [Joe Reagle] said this to me: You lecture about the values implicit in our constitutional tradition; you argue we should carry these to cyberspace; what about the values implicit in the Internet's tradition; what about the values that are implicit in how it is governed. Why shouldn't we identify those, and carry those to real space?
And I realized he was right. Ever the imperialist, ever the lawyer, I had proceeded on the assumption that real space would have something to teach cyber. But why not the other way round. Why wouldn't the governance of the net have something to teach real space?

26. What follows is the story of Linux, GNU, the scientific method, and the basic protocols of the internet— that is, though Lessig never makes this connection, the story of open standards and their creation, and in particular the method of standardizing that made the IETF so different from ISO and the ITU, or from Microsoft, or from a government-controlled project. Lessig recognizes that the origins of the internet are academic and government funding (though ARPA, as usual, is conveniently shrouded in the mists of Cold War history), because he is retelling our now familiar story of the 'open source' community, and how this community is the internet as we know it. Hook, Line and Sinker.

27. Epiphany concluded, Lessig in turn reveals ("I don't really care for what techo-geeks say. I want to look at what they do. What are the values implicit in what they do. Revealed-values, like revealed-preferences"(12)) the values of the internet culture— its tradition of governance.

28. The first of these is what Lessig calls "open forking", which sounds like stupidity. That is, it sounds much like the Stupid Network and the promise of keeping complexity on the ends, keeping the core simple and preserving neutrality about how it is used (recall that this depends on treating pornography and medical data identically, a conclusion that conflicts with Lessig's earlier assertions that pornography could be regulated with certificates, which may be true, but still depends on appointing someone to decide what is porn— or what is medical data— and what isn't). According to Lessig, Good Code is modular, permits revision and substitution without redesign of the entire code base. The crucial lesson: no single person decides... evolution favors the suitably adapted. This is like markets and democracy, says Lessig.

29. The second he calls "universal standing," which is not about equality, but rather about inequality. Everyone is equally unequal. Actually, Lessig doesn't explain this, but the point he wants to make is that the only code that is accepted— and we could see this coming from a mile away— is code that "works." "No kings, no priests, just rough consensus and running code." This is like markets and democracy, says Lessig.

30. Sadly, these are diluted revelations, and not so much observed as generalized from example or anecdote. Lessig's goal is not ethnographic description, but lawyerly conclusions, that conveniently schematize into a mantra that would align the market, democracy and open source according to two overriding principles: that (market/democracy/internet) be allowed to evolve however 'we' choose (that pesky plural again), and that (market/democracy/internet) be open to anyone without restriction(17). To the extent that these are 'values' they are agreeable values of openness, but it is not the value that is of interest here, but its agreeability. Just how people agree on any given value, or any self-evident one for that matter, is the locus of mystery, and the reason why it is not openness per se that distinguishes the internet, but the openness of its standards, and how openness serves to legitimize them as standards.

31. Despite all my objections, however, I would not deny that Lessig has identified one point about open source that is important to remember. It is most clearly stated in a paper called "The Limits in Open Code" [Lessig99c]:

To many in the open code movement, this whole argument about the values in open source software might seem quite odd. To them, the real issue with open source software is its power. Its real virtue is its amazing efficiency— its robustness and reliability. And no doubt, if these are its virtues, they are valuable indeed. But my point is not to question any claim about efficiency. My point is simply that there are other issues at stake as well...
However efficient open code may be, arguments about open source must also consider the questions that these values raise. For in my view, it makes as much sense to promote open source on efficiency grounds alone as it does to promote democracy on grounds of economic wealth alone. It may well be that democracies are more wealthy than other forms of government, just as it may well be that open source software is more robust than others. But it is a thin conception of value that would see wealth or efficiency as the only, or most important, value at stake.

32. And it is with this staking that we return to opensource.org, Eric Raymond and questions concerning the source of value.

Last Modified 11-Sep-99 9:01 PM ckelty@mit.edu

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