Code 2.0

20.

At the time Linux was developed, the dominant thinking among computer scientists was against a monolithic operating system operating out of a single kernel and in favor of a 'microkernel'-based system. MINIX, a microkernel system, was the primary competitor at the time. Torvalds consciously rejected this 'modern' thinking and adopted the 'traditional' model for Linux; see 'The Tanenbaum-Torvalds Debate,' in Open Sources: Voices from the Open Source Revolution, edited by Chris DiBona et al. (Sebastopol, Cal.: O'Reilly and Associates, 1999), 221–51.

21.

See the lists, 'Ports of Linux' and Linux Online, 'Hardware Port Projects' available at http://www.cyut.edu.tw/~ckhung/l/linux_ports.html (cached: http://www.webcitation.org/5J6iPa5rx) and http://www.linux.org/projects/ports.html (cached: http://www.webcitation.org/5J6iSED4b).

22.

Technically, it does not sit in the public domain. Code from these open source projects is copyrighted and licensed. GNU/Linux is licensed under the GNU GPL, which limits the possible use you can make of Linux; essentially, you cannot take the public part and close it, and you cannot integrate the open part with the closed; see Bruce Perens, 'The Open Source Definition,' in DiBona et al., Open Sources, 181–82. But for purposes of future open source development, the code sits in the commons. On the idea and values of the commons, see, for example, Michael A. Heller, 'The Tragedy of the Anticommons: Property in the Transition from Marx to Markets,' Harvard Law Review 111 (1998): 621; Stephen M. McJohn, 'Fair Use and Privatization in Copyright,' San Diego Law Review 35 (1998): 61; Mark A. Lemley, 'The Economics of Improvement in Intellectual Property Law,' Texas Law Review 75 (1997): 989; Mark A. Lemley, 'Romantic Authorship and the Rhetoric of Property,' Texas Law Review 75 (1997): 873; Jessica Litman, 'The Public Domain,' Emory Law Journal 39 (1990): 965; Carol M. Rose, 'The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems,' Minnesota Law Review 83 (1998): 129.

23.

Daniel Benoliel, 'Technological Standards, Inc.: Rethinking Cyberspace Regulatory Epistemology,' California Law Review 92 (2004): 1069, 1114.

24.

Peter Harter, 'The Legal and Policy Framework for Global Electronic Commerce,' comments at the Berkeley Center for Law and Technology Conference, March 5–6, 1999.

25.

For an argument to the opposite conclusion, see Stephen M. McJohn_,_ 'The Paradoxes of Free Software,' George Mason Law Review 9 (2000): 25, 64–65. Mathias Strasser extends the analysis here in a useful way in 'A New Paradigm in Intellectual Property Law? The Case Against Open Sources,' Stanford Technology Law Journal 2001 (2001): 4.

26.

I am grateful to Hal Abelson for this point.

Part III Notes

1.

For a related practice that focuses upon principles in context rather than application, see Andrew L. Shapiro, 'The `Principles in Context' Approach to Internet Policymaking,' Columbia Science and Technology Law Review 1 (2000): 2.

Chapter Nine Notes

1.

Justice Holmes himself called the wiretapping a 'dirty business'; Olmstead v. United States, 277 US 438, 470 (1928) (Justice Oliver Wendell Holmes Jr. dissenting).

2.

Ibid., 457 (Chief Justice William H. Taft: the obtaining of evidence by wiretaps inserted along telephone wires was done without trespass and thus did not violate the Fourth Amendment).

3.

Ibid., 471 (Justice Louis D. Brandeis dissenting; Justices Holmes, Stone, and Butler also filed dissents).

4.

There is an extensive debate about the original meaning of the Fourth Amendment and how it should be applied today. For the two camps, see Akhil Reed Amar, 'Fourth Amendment First Principles,' Harvard Law Review 107 (1994): 757; Tracey Maclin, 'The Complexity of the Fourth Amendment: A Historical Review,' Boston University Law Review 77 (1997): 925 (critiquing Amar's argument).

5.