people to use seatbelts. Many people hated seatbelts, and some disabled them. But the virtue of the automatic seatbelt was that its regulation was transparent. No one doubted who was responsible for the rule the seatbelt imposed. If the state didn’t like it when people disabled their seatbelts, it was free to pass laws to punish them. In the end the government did not press the issue — not because it couldn’t, but because the political costs would have been too high. Politics checked the government’s regulation, just as it should.
This is the most we can expect of the regulation of code in cyberspace. There is a trade-off between transparency and effectiveness. Code regulation in the context of open code is more transparent but also less binding. Government’s power to achieve regulatory ends would be constrained by open code.
There is another benefit. Closed code would make it easier for the government to hide its regulation and thus achieve an illicit regulatory end. Thus, there is no simple defeat of government’s ends but instead a trade-off — between publicity and power, between the rules’ transparency and people’s obedience. It is an important check on government power to say that the only rules it should impose are those that would be obeyed if imposed transparently.
Does this mean that we should push for open rather than closed code? Does it mean that we should ban closed code?
No. It does not follow from these observations that we should ban closed code or that we must have a world with only open code. But they do point to the values we should insist on for any code that regulates. If code is a lawmaker, then it should embrace the values of a particular kind of lawmaking.
The core of these values is transparency. What a code regulation does should be at least as apparent as what a legal regulation does. Open code would provide that transparency — not for everyone (not everyone reads code), and not perfectly (badly written code hides its functions well), but more completely than closed code would.
Some closed code could provide this transparency. If code were more modular — if a code writer simply pulled parts off the shelf to plug into her system, as if she were buying spark plugs for a car — then even if the code for these components was closed, the functions and regulation of the end product would be open.[4] Componentized architecture could be as transparent as an open code architecture, and transparency could thus be achieved without opening the code.
The best code (from the perspective of constitutional values) is both modular and open. Modularity ensures that better components could be substituted for worse. And from a competitive perspective, modularity permits greater competition in the development of improvements in a particular coding project.
It is plausible, however, that particular bits of code could not be produced if they were produced as open code, that closed code may sometimes be necessary for competitive survival. If so, then the compromise of a component system would permit something of the best of both worlds — some competitive advantage along with transparency of function.
I’ve argued for transparent code because of the constitutional values it embeds. I have not argued against code as a regulator or against regulation. But I have argued that we insist on transparency in regulation and that we push code structures to enhance that transparency.
The law presently does not do this. Indeed, as Mark Lemley and David O’Brien argue, the existing structure of copyright protection for software tends to push the development of software away from a modular structure.[5] The law prefers opaque to transparent code; it constructs incentives to hide code rather than to make its functionality obvious.
Many have argued that the law’s present incentives are inefficient — that they tend to reduce competition in the production of software.[6] This may well be right. But the greater perversity is again constitutional. Our law creates an incentive to enclose as much of an intellectual commons as possible. It works against publicity and transparency, and helps to produce, in effect, a massive secret government.
Here is a place for concrete legal change. Without resolving the question of whether closed or open code is best, we could at least push closed code in a direction that would facilitate greater transparency. But the inertia of existing law — which gives software manufacturers effectively unlimited terms of protection — works against change. The politics are just not there.
Responses of a Democracy
In his rightly famous book Profiles in Courage, then-Senator John F. Kennedy tells the story of Daniel Webster, who, in the midst of a fight over a pact that he thought would divide the nation, said on the floor of the Senate, “Mr. President, I wish to speak today, not as a Massachusetts man, nor as a Northern man, but as an American . . . ”[7]
When Webster said this — in 1850 — the words “not as a Massachusetts man” had a significance that we are likely to miss today. To us, Webster’s statement seems perfectly ordinary. What else would he be but an American? How else would he speak?
But these words came on the cusp of a new time in the United States. They came just at the moment when the attention of American citizens was shifting from their citizenship in a state to their citizenship in the nation. Webster spoke just as it was becoming possible to identify yourself apart from your state and as a member of a nation.
As I’ve said, at the founding citizens of the United States (a contested concept itself) were citizens of particular states first. They were loyal to their own states because their lives were determined by where they lived. Other states were as remote to them as Tibet is to us — indeed, today it is easier for us to go to Tibet than it was then for a citizen of South Carolina to visit Maine.
Over time, of course, this changed. In the struggle leading up to the Civil War, in the battles over Reconstruction, and in the revolution of industry that followed, individual citizens’ sense of themselves as Americans grew. In those exchanges and struggles, a national identity was born. Only when citizens were engaged with citizens from other states was a nation created.
It is easy to forget these moments of transformation, and even easier to imagine that they happen only in the past. Yet no one can deny that the sense of being “an American” shifted in the nineteenth century, just as no one can deny that the sense of being “a European” is shifting in Europe today. Nations are built as people experience themselves inside a common political culture. This change continues for us today.
We stand today just a few years before where Webster stood in 1850. We stand on the brink of being able to say, “I speak as a citizen of the world”, without the ordinary person thinking, “What a nut.” We are just on the cusp of a time when ordinary citizens will begin to feel the effects of the regulations of other governments, just
