Transnational Law for Transnational Communities. The Emergence of a Lex Mercatoria (or Lex Informatica) for International Creative Communities

• Author: Axel Metzger
• Position: Dr. iur. (Munich and Paris), LL.M. (Harvard), Professor of Law at the Leibniz University of Hannover, Institute for Legal Informatics, Germany
• Pages: 361-368

Transnational Law for Transnational Communities

2012

361

3

Transnational Law for

Transnational Communities

The Emergence of a Lex Mercatoria (or Lex Informatica) for

International Creative Communities.

by Axel Metzger, Dr. iur. (Munich and Paris), LL.M. (Harvard), Professor of Law at the Leibniz University of

Hannover, Institute for Legal Informatics, Germany.

© 2012 Axel Metzger

Everybody may disseminate this ar ticle by electroni c means and make it available for downlo ad under the terms and

conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8 .

Recommended citation: A xel Metzger, Transnational Law for Transnational Communities The Emergence of a Lex Merca toria

(or Lex Informatica) for Internat ional Creative Communities, 3 (2012) JIPITEC 3, 361.

Keywords: Open Source Software, Creative Commons, Private International Law, Choice of Law, Lex Mercatoria

Abstract: Open Source Communities and con-

tent-oriented projects (Creative Commons etc.) have

reached a new level of economic and cultural sig-

nificance in some areas of the Internet ecosystem.

These communities have developed their own set

of legal rules covering licensing issues, intellectual

property management, project governance rules etc.

Typical Open Source licenses and project rules are

written without any reference to national law. This

paper considers the question whether these license

contracts and other legal rules are to be qualified as a

lex mercatoria (or lex informatica) of these communi-

ties.

A. Free and Open Source, Creative

Commons: An alternative model

for innovation and creativity

1

Free and open source communities (the terms

are used synonymously in this paper) have their

historical roots in the 1980s when software began

to be marketed as an independent commercial good

on the IT markets. Before that time, software was

mostly given away for free to hardware customers

as an add-on and accompanied by the source codes.

The source codes enabled customers to debug and

modify the software according to their needs. With

the advent of mass-market personal computers in

the 1980s, IT companies started to sell or license

software as a product independent from the

hardware and to provide their customers only with

closed source versions of their programs. During

this time, today’s leading software industry players,

such as Microsoft, SAP, Oracle and Adobe, developed

the business model of standardized closed source

software products.1

2

For programmers interested in analysing and

modifying software – ‘hackers’ as they were called

at the time

2

– this new era of closed software was felt

as a threat to their way of working with software.

Therefore, some irst small projects, the most

prominent being Richard Stallman’s GNU project

founded in the US, started to create free software

programs that would be available for everybody

interested in object and source code form.3 The

GNU project developed faster than anybody could

have expected. The most important step in the

development of the project was the contribution of

an operating system kernel called ‘Linux’ provided

by the Finnish student Linus Torvalds in 1991.4