This paper interrogates the claims that open source development is an ideal form of regulatory development. We begin by presenting the literature that offers a framework of modalities of regulation where code, along with laws, markets, and norms shape and influence individual action. Within this framework, it is argued that for an Open Society we need Open Code. We present the processes through which the Gnutella protocol and the Limewire application are developed by deconstructing the mechanisms of participation and contribution of the individual developers. The techniques of monitoring, modularization and filtering that we identify appear to be inconsistent with open society promises. Instead we suggest a different framing, that of creating nests of interests, whose creators can find refuge from inhabitants of other nests. From that perspective, we suggest that we should stop referring to the war between Copyright and peer-to-peer networks as the battle between good and evil.