Code as Governance, the Governance of Code

The governance of a network society is tightly bound to the nature of property rights created for information. The establishment of a market involves the development of a bundle of rights that both create property and define the rules under which property-based transactions might occur. The fundamental thesis of this work is that the creation of property through licensing offers different views of the governance of the network society. Thus this article offers distinct views of the network society drawn from examinations of the various forms of governance currently applied to code, namely: open code licensing, public domain code, proprietary licenses, and the Uniform Computer Information Transactions Act (UCITA). The open code licenses addressed here are the GNU Public License, the BSD license, the artistic license, and the Mozilla license. We posit that the licenses are alternative viewpoints (or even conflicting forces) with respect to the nature of the network society, and that each has its own hazards. We describe the concepts of openness: free redistribution, source availability, derivations, integrity, non-discrimination, non-specificity, and non-contamination. We examine how each license meets or conflicts with these conditions. We conclude that each of these dimensions has a parallel in the dimension of governance. Within our conclusions we identify how the concept of code as law, first described by Stallman and popularized by Lessig, fails when the particulars of open code are examined. However, we explore the ways that licenses together with code provide a governance framework, and how different licenses combined with code provide a range of visions for governance of the information society. We go on to consider the fundamentally different governance model outlined by UCITA, and comment on the philosophical implications and hazards of such a framework for the world of code.