OPEN CODE AND OPEN SOCIETIES: VALUES OF INTERNET GOVERNANCE LAWRENCE LESSIG* Pierre de Fermat was a lawyer and an amateur mathematician. He published one paper in his life—an anonymous article written as an appendix to a colleague’s book. But while he published little, he thought lots about the open questions of mathematics of his time. And in 1630, in the margin of his father’s copy of Diophantus’ Arithmetica, he scribbled next to an obscure theorem (“Xn+Yn=Zn has no non-zero integer solutions for N>2”): “I have discovered a truly remarkable proof which this margin is too small to contain.”1 It’s not clear that Fermat had a proof at all. Indeed, in all his mathematical papers, there was but one formal proof. But whether a genius mathematician or not, Fermat was clearly a genius self- promoter, for it is this puzzle that has made Fermat famous. For close to four hundred years, the very best mathematicians in the world have tried to pen the proof that Fermat forgot. In the early 1990s, after puzzling on and off about the problem since he was a child, Andrew Wiles believed that he had solved Fermat’s Last Theorem. He published his results—on the Internet, as well as other places—but very soon afterwards, a glitch was discovered. The proof was flawed. So he withdrew his claim to having solved Fermat’s Theorem. But he could not withdraw the proof. It was out there, in the ether of the Internet, and could not be erased. It was in the hands of many people, some of whom continued to work on the proof, even though flawed. And after extensive and engaged exchange on the Net, the glitch was undone. The problem in Wiles’ proof was fixed. Fermat’s Last Theorem was solved.2 * Jack N. and Lillian R. Berkman Professor for Entrepreneurial Legal Studies, Harvard Law School. Thanks to Hal Abelson, Scott Bradner, David Johnson, Henry Perritt, and Richard Stallman for comments on an earlier draft. 1.See <http://www-groups.dcs.st-and.ac.uk/~history/HistTopics/Fermat’s_last_theorem. html>; see also AMIR D. ACZEL, FERMAT’S LAST THEOREM: UNLOCKING THE SECRET OF AN ANCIENT MATHEMATICAL PROBLEM 6 (1996). 2. See SIMON SINGH, FERMAT’S ENIGMA: THE EPIC QUEST TO SOLVE THE WORLD’S GREATEST MATHEMATICAL PROBLEM (1997). 101 102 CHICAGO-KENT LAW REVIEW [Vol. 74:__ * * * There’s something of a movement going on out there—called by some the Free Software Movement (as founder, Richard Stallman puts it, free in the sense of “free speech,” not in the sense of “free beer”3), and by others, the Open Source Software Movement.4 The differences are important, but so are the commonalties strong. Both aim for a world in which the fundamental software—the code— governing the Internet is software that is “open”—code whose source is available to all, to be taken, to be modified, and to be improved. The arguments for open code are many; the reasons favoring it, different. Most argue its virtue is efficiency: that the product of this open development, like the product of any open society—this code that has revealed its flaws by revealing its source, and that has been improved by revealing its source—is more robust, more efficient, more reliable, code than the product of any closed process. Better code is the promise, and in a world where computers are as reliable as electricity in Italy, this indeed is a valuable promise. But it is not my aim here to discuss its efficiency; my aim is its values.5 My question in the few minutes that I can have your attention is this: Can we learn something from the values of the Open Source or Free Software Movement that would teach us something about Internet governance, and governance generally? * * * Governance: to many, this idea of Internet governance will seem quite odd. This weird interactive television that somehow got connected to wildly confused libraries—what could it mean to speak about governance here? But I mean governance in a very general sense. If you want to set up a server on the World Wide Web, you must register and receive a 3. Richard Stallman is the founder of this extraordinary movement and is truly its constituting force. See Amy Harmon, The Rebel Code, NY TIMES MAG., Feb. 21, 1999, at __; Andrew Leonard, Maverick Richard Stallman Keeps the Faith—and Gives Bill Gates the Finger (Aug. 31, 1998) <http://www.salonmagazine.com/21st/feature/1998/08/cov_31feature. html>. 4. The present keepers of the keys for this branch of the Free Software Movement are Eric Raymond and Bruce Perens, who founded opensource.org. See <http://www.opensource. org/board.html>. 5. I therefore completely agree with Stallman that the issues raised by this movement are primarily issues of value first. See Richard Stallman, Reevaluating Copyright: The Public Must Prevail, 75 OR. L. REV. 291 (1996); see also Lawrence Lessig, The Limits in Open Code: Regulatory Standards and the Future of the Net, 14 BERKELEY J. L. & TECH. 759 (1999). 1999] OPEN CODE AND OPEN SOCIETIES 103 name—a domain name—from an Internet registry, right now a company called Network Solutions.6 This procedure is the product of governance in the sense that I mean. When you connect to a site on the World Wide Web, your machine transmits to the site on the Web an address—your Internet Protocol (“IP”) address—so that the machine on the Web can find you in return.7 This protocol is the product of governance in the sense I mean. When you connect to a site with this IP address, the IP address need not provide information to identify who you are; it can be dynamic rather than static; it can be a proxy rather than real—nothing requires that the other side learn anything real about you.8 This is the product of governance in the sense I mean. In each cases, the governance at stake is in part a governance that has been brought about by a certain architecture in the Internet. It is the code’s design that IP addresses are used to identify locations on the Net; other designs could have been chosen. It is the code’s design that only the IP address is needed to connect to a site; a different design, requiring greater security, could have been selected. Thus in part, the governance that I mean is a governance brought about through code.9 But obviously, governance is not just code. It was not software that chose Network Solutions as the domain name registry—it was the United States government, by a contract that shifted the 6. See <http://www.netsol.com/nsi>. 7. “In order for Internet computers to recognize and transmit data between each other, these data must be sent via special protocols. A protocol is a formal description of message formats and the rules two computers must follow to exchange those messages.” <http:// www.nus.sg/Publ/internet_guide/protocol.html>. 8.See BERNARD ROBIN ET AL., EDUCATOR’S GUIDE TO THE WEB 165-66 (1997) (defining a proxy server as a computer that intercepts Internet traffic and has the ability to keep users from accessing outside Web pages). 9. I am using the term “code” here far more loosely than software engineers would. I mean by code the instructions or control built into the software and hardware that constitutes the Net. I include within that category both the code of the Internet protocols (embraced within TCP/IP) and also the code constituting the application space that interacts with TCP/IP. Code of the latter sort is often referred to, in Jerome Saltzer’s terminology, as code at the “end.” “For the case of the data communication system, this range includes encryption, duplicate message detection, message sequencing, guaranteed message delivery, detecting host crashes, and delivery receipts. In a broader context the argument seems to apply to many other functions of a computer operating system, including its file system.” Jerome H. Saltzer et al., End-to-End Arguments in System Design, in INNOVATIONS IN INTERNETWORKING 195 (Craig Partridge ed., 1988). More generally, this layer would include any applications that might interact with the Network (browsers, e-mail programs, file transfer clients) as well as operating system platforms upon which these applications might run. In the analysis that follows, the most important “layer” for my purposes will be the layer above the IP layer. This is because the most sophisticated regulations will occur at this level, given the Net’s adoption of Saltzer’s end-to-end design. 104 CHICAGO-KENT LAW REVIEW [Vol. 74:__ responsibility from the late John Postel.10 It was not software that established the protocols for the World Wide Web. It was a group of Internet decision-makers who put a recommendation for this design into circulation, and then recognized it as adopted.11 These decision- makers were people; some of them are responsible to “the People”; their name was not Hal 2000. Thus governance in the sense that I mean is a mix of the regulations of code and the regulations of bodies that regulate this code. It is both machine and man. But these “regulators” regulate in ways that are very different. They are different from each other, and they are different from the regulations of real-space governments. We should understand this difference. * * * First, think a bit more about code—about the way that code regulates. Lawyers don’t like to think much about how code regulates.