18. Conclusion: From Custom to Customary Law
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18.
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We have examined the customs which regulate the ownership and control
of open-source software. We have seen how they imply an underlying
theory of property rights homologous to the Lockean theory of land
tenure. We have related that to an analysis of the hacker culture
as a `gift culture' in which participants compete for prestige
by giving time, energy, and creativity away. We have examined the
implications of this analysis for conflict resolution in the culture.
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The next logical question to ask is "Why does this matterıĵ" Hackers
developed these customs without conscious analysis and (up to now)
have followed them without conscious analysis. It's not immediately
clear that conscious analysis has gained us anything practical -- unless,
perhaps, we can move from description to prescription and deduce ways
to improve the functioning of these customs.
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We have found a close logical analogy for hacker customs in the theory
of land tenure under the Anglo-American common-law tradition.
Historically , the European tribal
cultures that invented this tradition improved their
dispute-resolution systems by moving from a system of unarticulated,
semi-conscious custom to a body of explicit customary law memorized by
tribal wisemen -- and eventually written down.
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Perhaps, as our population rises and acculturation of all new members
becomes more difficult, it is time for the hacker culture to do
something analogous -- to develop written codes of good practice for
resolving the various sorts of disputes that can arise in connection
with open-source projects, and a tradition of arbitration in which
senior members of the community may be asked to mediate disputes.
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The analysis in this paper suggests the outlines of what such a code
might look like, making explicit that which was previously implicit.
No such codes could be imposed from above; they would have to be
voluntarily adopted by the founders or owners of individual projects.
Nor could they be completely rigid, as the pressures on the culture
are likely to change over time. Finally, for enforcement of such
codes to work, they would have to reflect a broad consensus of the
hacker tribe.
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I have begun work on such a code, tentatively titled the "Malvern
Protocol" after the little town where I live. If the general analysis
in this paper becomes sufficiently widely accepted, I will make the Malvern
Protocol publicly available as a model code for dispute resolution.
Parties interested in critiquing and developing this code, or just
offering feedback on whether they think it's a good idea or not, are
invited to contact me by email.
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