Is open source software the New Lex Mercatoria?

The first generation of academic scholarship on the Internet proclaimed that its transnational nature rendered it inherently unregulable by conventional governments. Instead, the Internet would be governed by rules and customs developed by members of the online community itself. Although most of these early Internet theorists remained somewhat vague about the mechanism through which such norms and structures might arise, some suggested that they might emerge through international standard setting organizations or the system for resolving domain name disputes. As a model for how such system might emerge, they pointed to the lex mercatoria, which is generally characterized as a set of uniform legal principles developed during medieval times on behalf of traveling merchants that was based on the customs and practices of international trade, enforced by special merchant courts, and independent of local governments and their laws. Other scholars expressed skepticism about the Internet’s supposed unregulability. Indeed, such claims would ultimately be contradicted by events such as the United States’ unilateral efforts to block the creation of the .xxx domain on the Internet, the influence of governments and large corporations over international standard setting organizations, as well as China’s success in restricting the online activity of its citizens. These failures have done little to dampen the desire for a conceptual foundation for Internet self-governance. Interestingly, Internet guru Lawrence Lessig has suggested that more widespread use of open source software may increase the Internet’s ability to resist governmental control. This Article explores potential implications of that observation by examining whether more widespread use of open source software might provide the basis for the type of bottom-up ordering associated with the lex mercatoria. Part I offers an overview of open source software. Part II describes both the ancient and modern versions of the lex mercatoria and outlines some of the central debates about those institutions. Part III examines whether open source software can provide a decentralized mechanism for unifying the online commercial environment that is independent of national governments and international organizations in the manner that the proponents of the lex mercatoria envision. Perhaps unsurprisingly, a system of self-governance based on open source runs afoul of the same questions of spontaneity, universality, and autonomy that surround the lex mercatoria. Other scholars expressed skepticism about the Internet’s supposed unregulability. Indeed, such claims would ultimately be contradicted by events such as the United States’ unilateral efforts to block the creation