There is currently no clear policy argument to help define which open source projects can be considered critical digital infrastructure. Answers to the question of what makes digital infrastructure critical will inform other important economic and governance questions in the digital age, including many of the supporting research questions we aim to explore in this project. In answering these questions we will bridge a quest for a legal definition with an investigation of the values, methods, and funding relationships of the groups that build open source software projects.
The research team hypothesizes that:
- The non-digital public goods/utilities regulation analogy can point to a system of principles that, mutandis mutatis, can help frame and codify a system for prioritizing digital project utility.
- Direct participation safeguards for communities that build and use digital infrastructure would allow for a relevant, viable and inclusive system of prioritization.
Key driving questions of this work include:
- What makes an open source project “critical digital infrastructure”?
- Can we define it by drawing lessons from regulation of non-digital public goods and utilities?
- Should a definition consider how projects enable or enhance participation/access?
- How does funding impact open source communities? Can this knowledge focus future funding?
This project is based on both empirical analysis and doctrinal analysis of primary and secondary resources. The doctrinal analysis will be based on relevant legislation (e.g. on public utilities) and case-law (e.g. antitrust cases before the US and EU regulators and courts in the telecommunications and other sectors) and on scholarship drawn mostly from the domains of law and policy. More specifically the team will draw from law and economics, antitrust law, public utilities regulation, economic theories of infrastructure, commons literature, law and technology as well as intellectual property law literature. The team will also gather data from a number of interviews with open source individuals and communities.
Outputs will include maps and visualizations of existing legal and regulatory frameworks, a scholarly paper co-authored by the research team, and research presentations at relevant conferences and seminars.