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Is Open Source Software the New Lex Mercatoria?

32 Pages Posted: 15 Aug 2007 Last revised: 23 Dec 2013

Fabrizio Marrella

University of Venice - Department of Law; LUISS Guido Carli University - Faculty of Law

Christopher S. Yoo

University of Pennsylvania Law School; University of Pennsylvania - Annenberg School for Communication; University of Pennsylvania - School of Engineering and Applied Science

Abstract

Early Internet scholars proclaimed that the transnational nature of the Internet rendered it inherently unregulable by conventional governments. Instead, the Internet would be governed by customs and practices established by the end user community in a manner reminiscent of the lex mercatoria, which spontaneously emerged during medieval times to resolve international trade disputes independently and autonomously from national law. Subsequent events have revealed these claims to have been overly optimistic, as national governments have evinced both the inclination and the ability to exert influence, if not outright control, over the physical infrastructure, the domain name system, and the content flowing across the network. These failures have done little to lessen the allure of Internet self-governance. In particular, some scholars have suggested that more widespread use of open source software would increase the Internet's ability to resist governmental control. This Essay explores whether more widespread use of open source software might provide the basis for the type of bottom-up ordering associated with the lex mercatoria. Perhaps unsurprisingly, a system of self-governance based on open source implicate the same questions of spontaneity, universality, and autonomy that surround the lex mercatoria.

Keywords: open source software, lex mercatoria, UNIDROIT, copyright misuse, patent misuse, arbitration

Suggested Citation

Marrella, Fabrizio and Yoo, Christopher S., Is Open Source Software the New Lex Mercatoria?. U of Penn, Inst for Law & Econ Research Paper No. 07-19; U of Penn Law School, Public Law Research Paper No. 07-31; Virginia Journal of International Law, Vol. 47, No. 4, 2007. Available at SSRN: https://ssrn.com/abstract=1007236

Fabrizio Marrella

University of Venice - Department of Law ( email )

Sede di San Giobbe Cannaregio 873
Venezia, 3012
Italy
+39 0412347652 (Phone)
+39 0415242482 (Fax)

HOME PAGE: http://www.unive.it/data/persone/5591418

LUISS Guido Carli University - Faculty of Law ( email )

Viale Pola 12
Rome, 00198
Italy

HOME PAGE: http://giurisprudenza.luiss.it/faculty/cv/351977

Christopher S. Yoo (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom St.
Philadelphia, PA 19104-6204
United States
(215) 746-8772 (Phone)

HOME PAGE: http://www.law.upenn.edu/faculty/csyoo/

University of Pennsylvania - Annenberg School for Communication ( email )

3620 Walnut St.
Philadelphia, PA 19104-6220
United States
(215) 746-8772 (Phone)

University of Pennsylvania - School of Engineering and Applied Science ( email )

3330 Walnut St.
Philadelphia, PA 19104-6309
United States
(215) 746-8772 (Phone)

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