The Governance of Code: Open Land vs. UCITA Land

Imagine two network societies. In one society, the transfer of information and use of software is governed by the various licenses used to protect open code today. For convenience, we dub this society "Open Land". The other society recently passed a law identical to the new Uniform Computer Information Transactions Act ("UCITA", passed in two U.S. states and pending in several others) to control its information and computer software. We will call this society "UCITA Land". This paper looks at the ways in which Open Land and UCITA Land differ. Although it might initially seem that a licensing framework is trivial in terms of the actual conduct of society, we posit that such frameworks in many ways define the mode of governance of network society. 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. In Open Land and UCITA Land, fundamentally different approaches to the establishment of those rights lead to vastly different societies.