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 as the citizens of Massachusetts came to feel the effects of slavery and the citizens of Virginia came to feel the effects of a drive for freedom. As Nicholas Negroponte puts it, “Nations today are the wrong size. They are not small enough to be local and they are not large enough to be global. ”[8] This misfit will matter.
As we, citizens of the United States, spend more of our time and money in this space that is not part of any particular jurisdiction but subject to the regulations of all jurisdictions, we will increasingly ask questions about our status there. We will begin to feel the entitlement Webster felt, as an American, to speak about life in another part of the United States. For us, it will be the entitlement to speak about life in another part of the world, grounded in the feeling that there is a community of interests that reaches beyond diplomatic ties into the hearts of ordinary citizens.
What will we do then? When we feel we are part of a world, and that the world regulates us? What will we do when we need to make choices about how that world regulates us, and how we regulate it?
The weariness with government that I described at the end of the last chapter is not a condition without cause. But its cause is not the death of any ideal of democracy. We are all still democrats; we simply do not like what our democracy has produced. And we cannot imagine extending what we have to new domains like cyberspace. If there were just more of the same there — more of the excesses and betrayals of government as we have come to know it — then better that there should be less.
There are two problems here, though only one that is really tied to the argument of this book, and so only one that I will discuss in any depth. The other I mentioned at the end of the last chapter — the basic corruption in any system that would allow so much political influence to be peddled by those who hand out money. This is the corruption of campaign financing, a corruption not of people but of process. Even good souls in Congress have no choice but to spend an ever-increasing amount of their time raising an ever-increasing amount of money to compete in elections. This is an arms race, and our Supreme Court has effectively said that the Constitution requires it. Until this problem is solved, I have little faith in what our democracy will produce.
The solution to this problem is obvious, even if the details are extremely difficult: Spend public resources to fund public campaigns. The total cost of federal elections in 2004 was probably close to $4 billion.[9] In the same year, we spent $384 billion on defense and $66 billion on the war in Iraq.[10] Whatever you think about the wisdom of defense spending and the war in Iraq, at least the purposes of all three expenditures is the same — to preserve and promote democracy. Is there any doubt if we made campaign contributions essentially irrelevant to policy we’d have a more certain and positive effect on democracy than the other two?
5.
See Mark A. Lemley and David W. O'Brien, "Encouraging Software Reuse,"
6.
For an extraordinary account of the damage done by copyright law to software devel opment, see Mark Haynes, "Black Holes of Innovation in the Software Arts,"
9.
Center for Responsive Politics, "'04 Elections Expected to Cost Nearly $4 Billion," Octo ber 21, 2004, available at http://www.opensecrets.org/pressreleases/2004/04spending.asp (cached: http://www.webcitation.org/5J6o5bS6e).
10.
Chris Edwards, "Bush's Overspending Problem," CATO Institute, February 6, 2003, available at http://www.cato.org/research/articles/edwards-030206.html (cached: http://www.webcitation.org/5J6o7hhWq).