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Full text of "Libre Culture: Meditations on Free Culture"

Libre Culture 



Libre Culture 

Meditations on Free Culture 



Edited by 
David M. Berry and Giles Moss 



Pygmalion Books 



Published by Pygmalion Books 
www.pygmalionbooks.org 

These writings were originally published in the periodicals 

First Monday, Free Software Magazine, Information Polity, Kritikos and NORMA 

Printed in Winnipeg 
January 2008 

Second Edition 
Pygmalion Book No. 21 

(L) 2008 Res Divini Juris Licence. The contents of this book are released under the 
terms of the Res Divim Juris Libre Commons Licence. 

Cover photograph by Gil Inoue (giles@coletivo.org) 

Edited, proofread and hand-bound by Karina Slobogian mid Matthew Zacharias 



Contents 



Foreword 1 

Introduction 2 

1. Libre Culture Manifesto 4 
David M. Berry and Giles Moss 

2. Free as in Tree Speech' or Free as in 'Free Labour' 12 
David M. Berry 

3. Art, Creativity, Intellectual Property and the Commons 18 
David M. Berry and Giles Moss 

4. The Commons 23 
David M. Berry 

5. On the "Creative Commons": a critique of the commons 28 
without commonalty 

David M. Berry and Giles Moss 

6. The Will to Code: Nietzsche and the Democratic Impulse 35 
David M. Berry and Lee Evans 

1 . The Parliament Of Things 42 

David M. Berry 

8. What is code? A conversation with Deleuze, Guattari and 56 
Code 

David M. Berry and Jo Pawlik 

9. The Politics of the Libre Commons 69 
David M. Berry and Giles Moss 

10. Free and Open-Source Software: Opening and 84 
Democratising e-Government's Black Box 

David M. Berry and Giles Moss 



11. On Byways and Backlanes: The Philosophy of Free 104 

Culture 

David M. Berry 

Appendix I (translations of Libre Culture Manifesto) 109 
French/Finnish/Norwegian/Far si 

Appendix II (Libre Commons Licences) 135 
Res Commune s/Res Divini Juris 

Appendix III (PDF version of Manifesto) 141 
Designed by Marcus Leis Allion 

Bibliography 1 47 

Index 156 

About the Authors/ PygmaUon Books 1 60 



For Darrow Schecter. 



Foreword 



Libre Culture is the essential expression of the free 
culture/copyleft movement. This anthology, brought together 
here for the first time, represents the early groundwork of Libre 
Society thought. Referring to the development of creativity and 
ideas, capital works to hoard and privatize the knowledge and 
meaning of what is created. Expression becomes monopolized, 
secured within an artificial market-scarcity enclave and finally 
presented as a novelty on the culture industry in order to benefit 
cloistered profit motives. In the way that physical resources such 
as forests or public services are free, Libre Culture argues for the 
freeing up of human ideas and expression from copyright 
bulwarks in all forms. 

Developing chronologically in scope from manifesto to 
article to essay, this seminal collection of writing cuts directly 
into the heart of how intellectual property impedes the natural 
progression of creativity, staggering its distribution and cutting it 
off from the possibility of reaching a true 'ideas commons.' While 
Berry and Moss are here primarily using internet movements and 
art as conceptual-frameworks, the sublimity of their work lies in 
its ability to penetrate into other spheres of life, to avoid 
becoming captured by any one ideology, to hold a glance that 
remains everywhere. Exploring a radical democratic politics of 
"the commons," the critique abandons the will to glue itself to a 
specific political identity, resultantly allowing its dialogue to arm 
itself with its own conditions: the writing attempts to live its own 
words by allowing itself to be used (and reused) freely by 
anyone. 

Where the neoliberal Creative Commons moves to create 
a bureaucratic vivisection of culture, cutting it into discrete 
pieces, each of which have their own distinct license, rights and 
permissions defined by the copyright holder who 'owns' the work, 
ensuring that legal licenses and lawyers remain key nodal and 
obligatory passage points within the Creative Commons network, 
Libre Culture moves diametrically against such mechanical 
blockages and colonization maneuvers — against the totality of 
intellectual property regimes everywhere and their attempts to 
extend the reach of their own compartmentalization. 

Matthew Zacharias 
September 2007 



Introduction 



Welcome to Libre Culture. Wq hope that the texts we have 
assembled here are as thought provoking and interesting to you 
as they have been to everyone involved. This book is intended to 
be a toolbox. Rather than offer explanations, it is intended to give 
ideas, concepts and information to facilitate the growth of a 
network of artists, creatives and researchers into open source 
culture. It is a political intervention; more of a statement of aims 
than a reference text. It is also a call to arms. 

The reader is a strange kind of object in that it too has 
been written, edited and compiled in a decentralised and 
networked fashion by a number of different people. And the 
process has taken place using technology that has allowed the 
inside and the outside of the network to become fluid and 
modulating. We believe that this points to possibilities and 
practices within art and culture that have yet to be fully explored. 

Open Source culture represents something very new and 
very interesting: a politicisation of the question of the commons. 
What is the commons, and why is it suddenly becoming such an 
important matter of concern and mobilisation point for so many 
different people — from techies in software, peasant farmers in 
India (Neem patent), Brazilian Government's fight over anti -viral 
HIV patents, Biopiracy and of course artists and creative people 
wishing to use and reuse culture in their work? 

The production and distribution of information is a key 
source of wealth in the digital age and creates a new set of 
conflicts over capital and property rights that concern the right to 
distribute and gain access to information. As many papers discuss 
through the reader, multinational capital is now seeking to turn 
what is common increasingly into private property that can be 
used to extract value and profit. There is an important tension 
between: 

1. Public access to information and knowledge in a public 
domain. 

2. Private ownership of information and knowledge. 

No matter how much you try to square these basic liberal 
principles, they are in direct contradiction to each other. And 
whilst property was based on physical items at least there could 
be trade offs that some societies would accept and try to regulate 

2 



the effects through the wehare state (e.g. pohtical equahty versus 
economic inequality). However when information and knowledge 
are privatised, the very preconditions of a critical public required 
within a democratic society are denied to that public. 

This is the tension that is emerging as to the ability to 
access, use and reuse information and knowledge (whether 
written, immaterial, music or art). Do we have corporate 
controlled knowledge and a corresponding weakening of 
democratic society or democratic control of knowledge and a 
corresponding weakening of corporate control? Unfortunately, 
however, it seems that we are not being asked. Instead laws are 
being put into effect and massive changes taking place justified 
through the discourses of globalisation and the 'war on terror.' 

There is also the question of the multitude and to what 
extent these increases in communicational and affective 
production are transforming us into a new subjectivity that can 
organise against these effects. Do these new networked ways of 
working and interacting present new ways of 'being-in-the- 
world' and corresponding new ways of seeing, transforming and 
creatively interacting with each other? Does this point to a new 
form of politics? How can we, should we and will we mobilise 
and use these new skills and forms of knowledge? 

These are some of the fundamental questions generated 
by the so-called knowledge economy, creative economy, and 
information society. It is not hard to see that the decisions that 
governments (influenced, of course, by the corporate lobbyists) 
are taking today in support of the short-term corporate desire for 
profit pose a considerable threat to the democratic freedom and 
creative potential of future generations. Art and creativity lie at 
the nexus of the next phase of capital expansion — namely the 
privatisation of our very social existence (e.g., think of telephone 
calls as privatised conversations, SMS as privatised notes and 
letters). Companies see huge monopoly profits available when 
everyone has to pay to view, use or read a certain book, 
photograph or painting. 

We hope that this reader will contribute to this debate 
and also to experiments in new forms of organisation and artistic 
production, particularly forms that work against the present (i.e. 
against the privatisation of artistic production). We believe that 
artists and creative people have important things to say about this 
new world order, and an amazing palette of creativity with which 
to say it. 

DB and GM 



1 . The Libre Culture Manifesto 

Version 1.62 — David M. Berry and Giles Moss 



A constellation of interests is now seeking to increase its 
ownership and control of creativity. We are told that these 
interests require new laws and rights that will allow them to 
control concepts and ideas and protect them from exploitation. 
They say that this will enrich our lives, create new products and 
safeguard the possibility of future prosperity. But this is a 
disaster for creativity, whose health depends on an ongoing, free 
and open conversation between ideas from the past and the 
present. 

— In response, we wish to defend the idea of a creative field of 
concepts and ideas that are free from ownership. 

1. Profit has a new object of affection. Indeed, profiteers now 
shamelessly proclaim to be the true friend of creativity and the 
creative. Everywhere, they declare, "We support and 
protect concepts and ideas. Creativity is our 
business and it is safe in our hands. We are 
the true friends of creativity!" 

2. Not content with declarations of friendship, profiteers are 
eager to put into practice their fondness for creativity as well. 
Action speaks louder than words in capitalist culture. To display 
their affection, profiteers use legal mechanisms, namely 
intellectual property law, to watch over concepts and ideas and 
to protect them from those who seek to misuse them. While we 
are dead to the world at night, they are busily stockpiling 
intellectual property at an astonishing rate. More and more, the 
creative sphere is being brought under their exclusive control. 

3. The fact that the profiteers are now so protective of creativity, 
jealously seeking to control concepts and ideas, ought to rouse 
suspicion. While they may claim to be the true friends of 
creativity, we know that friendship is not the same as 
dependency. It is very different to say, "I am your true friend 
because I need you," than to say, "I need you because I am your 



true friend." But how are we to settle this issue? How do we 
distinguish the true friend from the false? In any relationship 
between friends we should ask, "Are both partners mutually 
benefiting?" 

4. The profiteers' insatiable thirst for profit clearly benefits from 
their new friendship with creativity and the creative. Unlike 
physical objects, concepts and ideas can be shared, copied and 
reused without diminishment. No matter how many people use 
and interpret a particular concept, nobody else's use of that 
concept is surrendered or reduced. But through the use of 
intellectual property law — in the form of patents, trademarks 
and particularly copyright — concepts and ideas can be 
transformed into commodities that are privately regulated and 
owned. An artificial scarcity of concepts and ideas can then be 
established. Much money is to be made when creative flows of 
knowledge and ideas become scarce products or commodities 
that can be traded in the market place. And, increasingly, 
intellectual property law is providing profiteers with vast 
accumulations of wealth. 

5. Informational, affective and knowledge-based labour has now 
become a central driver of profit. Indeed, immaterial labour is 
increasingly replacing industrial manufacture as the main 
producer of wealth in the age of technological capitalism. With 
these developments in the productive processes, a new 
embodiment of profit emerges. Alongside the landlords that 
controlled agriculture and the capitalist factory owners that 
controlled manufacture, vectors — the owners of the 
distribution, access and exploitation of creative works through 
valorisation — have emerged. It is these same vectorialists, of 
course, that are now so vocal in their claim to be the true friends 
of creativity and the creative. 

6. For many of us, the thought of intellectual property law still 
evokes romantic apparitions of a solitary artist or writer seeking 
to safeguard her or his creative work. It is therefore unsurprising 
that we tend to view intellectual property law as something that 
defends the rights and interests of the creative. Perhaps, in some 
removed and distant time, there was a modest respect in this 
notion. But this romantic vision of the creative is certainly ill at 
ease with the current capitalist reality. 



7. The world in which creative people now find themselves is a 
social factory or a society-factory (Virno and Hardt 1997). The 
vectors view the whole social world of creativity and creative 
works as raw material for commodification and profit. Creative 
people have thus become de facto employees of the vectors, if 
not their actual ones. Each concept and idea they produce is 
available to be appropriated and owned by the vectors through 
the use of intellectual property law. What is more, the vectors 
continually lobby to extend the control of these laws for greater 
and greater lengths of time. Because the vectors have now made 
intellectual property law their own, we can from now, more 
accurately, term these laws, 'vectoral laws.' 

8. The creative multitude is becoming legally excluded from 
using and reinterpreting the concepts and ideas that they 
collectively produce. In addition, this legal exclusion is being 
supported by technological means. Using technology as their 
delegates, the vectors seek to enforce vectoral law by 
instantiating their interests within the technical code that 
configures information, communications, networks and devices. 
To do so, they are currently developing and configuring ever 
more closed technologies and disciplinary machines. Digital 
rights management software, for example, sequesters and locks 
creative works, preventing their copying, modification and 
reuse. The vectors can by using these prescriptive technologies 
deny access to those who cannot pay or to those whose 
sympathies and support are not assured. They can also 
exclusively determine how ideas and concepts are to be used in 
the future. In the current era of technological capitalism, public 
pathways for the free flow of concepts and ideas and the 
movement of creativity and the creative are being steadily 
eroded — the freedom to use and re-interpret creative work is 
being restricted through legally based but technologically 
enforced enclosures. 

9. This development is an absolute disaster for creativity, whose 
health depends on a free and ongoing conversation and 
confrontation between concepts and ideas from the past and 
present. It is shameful that the creative multitude is being 
excluded from using the concepts and ideas that they 
collectively produce. Creativity is never solely the product of a 
single creator or individuated genius. It always owes debts to 
the inspiration and previous work of others, whether these are 
thinkers, artists, scientists, paramours, listeners, machines or 

6 



friends. Creativity, as a fusion point of these singularities, 
cannot subsist in a social nothingness. Concepts and ideas 
depend upon their social life — and it could not be otherwise. 

10. An analogy can be drawn with everyday language: that is, 
the system of signs, symbols, gestures and meanings used in 
communicative understanding. Spoken language is shared 
between us. A meaningful utterance is only made possible by 
drawing on the words that freely circulate within a linguistic 
community of speakers and listeners. Language, then, is 
necessarily non-owned and free. But imagine a devastating 
situation where this was no longer the case. George Orwell's 
depiction of a 1984 dystopia — and the violence done here to 
freethinking through newspeak — helps to illustrate this. In a 
similar way, the control and ownership of concepts and ideas is 
a grave threat to creative imagination and thought, and so also a 
danger to what we affectionately call our freedom and self- 
expression. 

11. Until recently, the creative multitude could decide either to 
conform or rebel. In conforming they became creatively inert, 
unable to create new synergies and ideas, mere producers and 
consumers of the standardised commodities that increasingly 
saturate cultural life. In rebelling, they continued to use 
concepts and ideas in spite of vectoral law. Labeled "pirates," 
"property thieves" and even "terrorists," they were 
then answerable as criminals to the courts of global state power. 
In other words, a permanent state of exception, a political 
emergency, was declared, which, together with the disciplinary 
norms of a propertised control society, was then used to justify 
and extend the coercive use of state power and repression 
against an increasingly criminalised culture of creativity. But as 
we will soon discuss, a growing number of the creative have 
now moved beyond both conformity and rebellion, through an 
active resistance to the present and the creation of an alternative 
creative field for flows of non-owned concepts and ideas. 

12. The vectors and their representatives will make immediate 
objections to all we have said. The profiteers will turn 
proselytizers and exclaim, "if there is no private 
ownership of creativity there will be no 
incentive to produce!" The suggestion that the ownership 
of knowledge and ideas promotes creativity is a shameful one. 



however plausible it may seem from the myopic perspective of 
profit. To say that creativity can thrive while the creative lack 
the freedom to reuse concepts and ideas is clearly upside-down. 
After giggling a little at this, we should now turn this thinking 
the right way up. 

13. According to this "incentive" claim, there cannot have 
been any creativity (i.e., art, music, literature, design and 
technology) before the ownership and control of our concepts 
and ideas. This seems like fantasy. Historians frequently profess 
to us that creativity was alive and well in pre-capitalist times, 
before the advent of intellectual property laws. But even so, we 
might concede that history is now enough of a fiction to raise 
some doubt about the form of previous incarnations of creativity 
and the creative. The incentive claim, however, is even more 
risible when it implies that there cannot be any creativity 
currently operating outside of the vectoral property regime. This 
of course contradicts our current experiences as historical actors 
and witnesses. We can now be sure of something that we have 
always already known — creativity is irreducible to the 
exploitation of intellectual property. 

14. A new global movement of networked groups that operate 
across a variety of creative media (e.g., music, art, design and 
software) is now emerging. These groups produce a gathering 
{Versammhmg Heidegger 1993) of concepts, ideas and art that 
exist outside the current vector property regime. The creative 
works of the Free/Libre and Open Source communities, for 
instance, can all be freely examined, challenged and modified. 
Here, knowledge and ideas are shared, contested and 
reinterpreted among the creative as a community of friends. The 
concepts and ideas of these groups, like the symbols and signs 
of language, are public and non-owned. Against the 
machinations of profit, these groups are in the process of 
constituting a real alternative — of constructing a model of 
creative life that reflects the force and desire of the creative 
multitude. 

15. Through the principles of attribution and share-alike, 
existing works and ideas are given recognition in these 
communities. This means that while creative work may always 
be copied, modified and synthesised into new works, previous 
creative work is valued and recognised by the community for its 
contribution to creativity as a whole (and rightly so). Attribution 



and share-alike are constitutive principles of the Free/Libre and 
Open Source movements, and chromosomes of the new mode of 
creative life that their social practice intimates. 

16. These movements adopt an ingenious viral device, 
implemented through public licences, known as copyleft. This 
ensures that concepts and ideas are non-owned, while 
guaranteeing that future synergies based on these concepts and 
ideas are equally open for others to use. Whereas copyright 
operates through law to prevent the modification and reuse of 
concepts and ideas, copyleft ensures that these concepts and 
ideas remain openly available and not capable of being 
privatised. In this way, copyright ('all rights reserved') is stood 
back on its feet by copyleft ('all rights reversed'). It now stands 
the right way up for creativity and can once again look it in the 
eyes. 

17. More broadly, we can say that non-owned creative works 
are created by singularities formed into machines of struggle 
(e.g., GNU, bit-torrent, nettime.org, Autonomedia, SchNEWS, 
the Zapatistas, Linux, Indymedia). These are horizontal and 
decentred molecular networks of actors, both human and 
nonhuman. These can and should be differentiated from the 
more centralised, disciplinary machines to which the concept 
network is now so liberally applied (e.g., "network firms," 
"network states," "network wars"). As such, they should also be 
distinguished from vectoral machines (e.g., capitalist 
corporations, WTO, IMF, the World Bank), which are closed, 
hierarchical, proprietary machines that configure and 
territorialize networks, concepts and ideas. 

18. Machines of struggle are continually being enrolled into 
new alliances and relations. As the vision and practice of non- 
owned creativity gathers in strength, these rhizomatic 
arrangements are both deepening and widening. Just as the 
violence of the vector's disciplinary regime is seeking to 
intensify, it is being met with a real counter-power. This 
countervailing force finds its form and strength, not through any 
individual nucleus or singularity standing alone, but through 
broader relations and alliances. More accurately, therefore, we 
are talking here of circuits of counter-power — machines of 
struggle in creative alliances. 



19. These circuits of counter-power bring forth the scope for 
resistance, the capacity for agency and thus the hope and 
promise of future worlds. When hnked together, machines of 
struggle are able to confront and challenge the vectoral regime 
as a real force, collectively armed against the territorializing 
effects of vectoralist capital. Circuits of counter-power provide 
the conditions and capacity for transformative constitutive 
action. Such circuits are but one moment of the potential power 
of the creative multitude as organised and effective 
transformative agents. 

20. We believe that the creative multitude should form 
themselves into machines of struggle and establish alliances 
with broader circuits of counter-power. In so doing, they 
contribute towards the idea and practice of non-owned creativity 
and the untimely model of creative life that it intimates. 
Through collective production and shared creative alliance, they 
will defend and extend creativity against those who shamelessly 
remain wedded to the language and practice of private property 
and profit, and who continually attempt to territorialize and 
configure for the purposes of control and ownership. 

21. Indeed, we — who are already quite a crowd — must 
defend the idea and practice of non-owned creativity. For it is 
only the creative multitude, when organised and enrolled into 
circuits of counter-power, who will determine whether a 
possible transformation of our times is realised. This is a 
movement that is acting "counter to our time and, let us hope, 
for the benefit of a possible time to come" (Nietzsche 1983) — 
Creativity is creating resistance to the present. 



Further Reading 

Adorno, T. and Horkheimer, M. (1976) The Dialectic of Enlightenment 

Benjamin, W. (1935) The Work of Art in the Age of Mechanical Reproduction 

Deleuze, G, and Gautarri, F. (1999) What is Philosophy? 

Foucault, M. (1990) The History of Sexuality, Vols 1, 2 and 3 

Hardt, M. and Negri, A. (2000) Empire 

Feenberg, A. (1991) Critical Theory of Technology 

Heidegger, M. (1993) 'Building Dwelling Thinking'. In Basic Writings. 

MachiaveUi, N. (1958) The Prince 

Latour, B (1993) We Have Never Been Modern 

Martin, B. (2003) Against Intellectual Property (http://danny.oz.au/free- 

software/advocacy/a gains t_IP.html ) 

Marx, K. (1974) Ca;3/?a/ 

10 



Marx, K. (1974) Grundrisse 

Marx, K. and Engels, F. (1974) The German Ideology 

Nietzsche, F. (1983) Untimely Meditations 

Rose, N. (1999) Powers of Freedom 

Schmidt, C. (1995) The Concept of the Political 

Stallman, R (2002) Free Software, Free Society 



11 



2. Free as in 'Free Speech' or 
Free as in 'Free Labour' 



David M. Berry 



Free software sustains and enables the internet. Across the 
world, people continue to freely contribute ideas and expertise 
to an important and growing movement. The internet itself was 
largely born out of a culture of contributing code and content in 
an electronic public "space" of global proportions. This has 
meant that the constellation of software supporting the internet, 
and the content that sits upon it, is to a large degree, non- 
market, peer-produced and free (as in "freedom" and as in 
"beer"). But, why do people code, hack, test, write and create 
free culture? 

Free labour sustains the free software and free culture 
movements, and yet we're still pretty much in the dark as to 
why people do it. Indeed, this question continues to puzzle 
many people who find it difficult to fit into traditional concepts 
related to production. Theorists and researchers have used a 
number of approaches: from individualistic or psychologistic 
theories, which usually end up identifying personal preferences 
or "motivations"; to concepts of frictionless information or 
institutional frameworks; essentialist claims about humans; gift 
economics; free-market economics; bazaars; theories of public- 
goods; and even the concept of "fun" itself, in an attempt to 
explain it. But ultimately, the explanatory factors continue to be 
shrouded in mystery. None of the current theories give a 
satisfactory answer to the questions raised, namely: why do 
coders, users and lots of amateur artists contribute to free 
culture projects? 

This article examines free software and free culture, 
together with the concepts that Hannah Arendt (1998) presents 
in The Human Condition^ to outline some of the key aspects of 
labour within what Yochai Benkler calls "commons-based peer 
production." It questions whether there is more than just simple 
motivational factors at work underneath the surface of the so- 
called "Hacker Ethic." Indeed, making "things" is usually 
classified outside the realm of the life world, and the question of 

12 



free-software problematises some of our common-sense 
impressions of what work qua work actually is. 

Free as in "software" 

The dynamics of software production are complex, and the 
resources required to sustain it are expensive, in terms of 
equipment and basic necessities, but also in terms of the wider 
economics of the computing industry. Software development is 
hugely profitable and employs a large number of people 
involved in labour intensive, complex and demanding work, 
which is exploited using copyright and patent monopolies. This, 
in turn, generates large profit margins and, as can be seen from 
salary levels, rewards many programmers handsomely. 
However, software programming remains a labouring activity; 
in other words, the activity undertaken by the programmer is 
exchanged for their wages. The product of this labour, code, is 
alienated and appropriated by the employing company. 

Free software, on the other hand, is produced outside of 
the office -factory — indeed, it is freely produced and 
contributed to projects that have many features in common. 
They are owned, if they can be said to be owned at all, by 
everyone, and it is freely available to be taken and used — 
although sometimes restricted by license requirements, such as 
the GNU General Public License (GPL). This code is produced 
neither wholly as a job nor as a hobby. But its commons-based 
approach means that it is never wholly appropriated or alienated 
from the producer either. 

This raises two related issues about contemporary free 
software development that this article intends to examine: (1) 
Why free -software is undertaken by programmers; and (2) 
whether free-software points toward a different relationship 
with the "work of our hands" and the possibilities for 
emancipation from necessity. 

Hannah Arendt's distinctions between Labor and Work 
offers useful concepts that can help in understanding why free 
software is produced and can contribute to further 
understanding of the activities associated with it. As Arendt 
explains in The Human Condition, the etymology of the two 
words. Labor and Work, casts light on the fact that although 
today we use them synonymously, this wasn't always so. John 
Locke, for example, drew a distinction between "working 
hands" and "laboring bodies" and this has some resemblance to 



13 



the ancient Greek distinction between "the craftsman" and the 
work of "slaves." This bifurcation of the process of production 
has also been mirrored in the distinction between manual and 
intellectual labour and the corresponding connotations and 
values we have associated between them. 

Arendt explains that in classical times. Labor was 
associated with contempt, an activity that left no trace, no 
monument, no great work worthy of remembrance. Labouring 
was for those who, like "slaves and tame animals with their 
bodies, minister to the necessities of life." In order that we could 
become political — i.e. that which distinguished us from 
animals — we had to escape from necessity. Today, the 
production of labour is the production of the masses, and Marx 
notwithstanding, it has historically been feared by the owning or 
thinking classes — controlled and channelled through 
overcoding structures that have been able to appropriate their 
productivity. Think, for example, of the school, the hospital and 
the assembly lines for the mass produced cars, producing what 
Foucault termed the docile bodies of the workers. These 
workers performed a fraction of the entire process of production 
and were thereby alienated from their labour. By being forced to 
work by necessity (i.e. to enable them to buy food and shelter) 
meant that they were not able to become fully human; alienated 
from the products of their own hands, unable to act or think 
politically and easy to control. 

In contrast, Arendt argues that for those who Work — 
who "work upon" rather than "labor and mix with" — there is 
the possibility for the beginnings of reflexive behaviour (i.e. 
becoming self-conscious acting beings). Work for Arendt, 
produces durability, the products of work do not disappear but 
give our common lives stability and solidity — think, for 
example, of a table passed down generation to generation, 
contrasted with labouring in a field which would leave no such 
trace. For Plato, Poiesis, as making or fabrication, showed that 
the craftsman had within his mind an idea that could be shaped 
to a conscious material design: a creative act of production in 
the physical world. Where Labor only produces for the 
consumption or necessity of the labourer. Work creates 
something durable that will last (for now leaving aside the 
problematic onto logical question of the status of source-code's 
obduracy). This is important because it is only by escaping 
necessity (i.e. the constant requirement to produce things we 
need) that we can begin to communicate and become human as 
political animals. For Arendt, Work is a prerequisite for the 

14 



possibility of Action — the realm of great deeds and great 
words. As memorably related by Homer, Achilles was 
remembered for his Action — not for his need to satisfy his 
hunger and clothe his body. 

To work for necessity, as many of us do in 
contemporary consumer society, would be classified by Arendt 
as labor. In fact, Arendt argues that we have become a laboring 
society; in other words, we have succeeded in levelling all 
human activities to the common denominator of securing the 
necessities of life and providing for their abundance. Therefore, 
whatever we do, we do for the sake of "making a living." 
Anything that cannot be classified as part of making a living 
becomes a "hobby," subsumed under playfulness or non-serious 
activities. Our society is now shaped by the importance of 
producing objects for consumption, and the drive for 
profitability encourages the production of objects that simply 
wear out as quickly as possible. Living for necessity was the life 
of animals — the Greeks even derive their word for torture 
(anagkai) from necessity (the realm of labour) and not from 
violence (bia, the realm of war) and in ancient societies torture 
could not be applied to free men, it could only be applied to 
labouring men or slaves who were subject to necessity anyway 
(see Arendt 1989: 129). 

Because life depends upon it, necessity is an extremely 
powerful drive. By directing our labour towards necessity, 
capitalism is able to reproduce itself as a social system. But free 
software seems more akin to the realm of Work than the realm 
of Labor, it lies to a certain extent outside of the market. Its 
commons-based production and the action of its producers seem 
to be less concerned with necessity than building durable, 
lasting things (the code). The care that goes into much free 
software production contributes to its craftsmanship — the 
production of code is in many ways "public," and the source 
code can be read and admired by others, in this respect it seems 
to be similar to a great speech or a work of art. 



Free as in "freedom" 

The second question this article asks is whether free software 
points toward a different relationship with the work of our 
hands and the possibilities for emancipation from necessity. 
Indeed, free software is not directly linked to necessity, and is in 
many ways similar to the creation of an artist — who Arendt 



15 



identified as the only real "worker" left in society. She argued 
that we will not be free until we realise that we are subject to 
necessity and liberate ourselves from it. Whilst we are forced to 
"make a living" we will always be caught in a never-ending 
spiral of laboring and consuming. As technology creates more 
"spare time" the resulting shaping of our desires by the 
advertising industry makes us greedier and more craving of our 
appetites — met only by consumption of the consumer goods 
before us. Free software is created here, strangely enough in the 
space of consumption. However, it differs, as it is productive 
and creative. To create free culture is to contribute toward 
culture rather than consume (i.e. destroy it). 

The possibilities offered by free culture are not (yet) 
completely linked or mediated through the operation of 
corporations and necessity. People can still write code, blog and 
share their thoughts on the web, and this act of sharing is also 
one of communication. However, it is a fragile space that seems 
similar to the temporary autonomous zones (TAZ) popularised 
by Hakim Bey (1991). Will the creators of free culture and free 
software allow it to be overcoded, controlled and channelled 
towards consumption? Clearly, the vast resources that 
corporations bring to bear on projects often crush resistance to a 
bureaucratic mentality. Inevitably, the creators often have 
different sentiments to those who seek to make money, and 
eventually they come into conflict with the instrumental 
rationality of corporations (who aim for profit maximising). 
Some worrying examples include: the continuing 
commercialisation of the inter-net; IBM's forays into the Linux 
kernel; and even the colonisation of blogging and photosharing. 

If we begin to view free software and open source no 
longer purely for necessity or instrumentally (i.e. as not just a 
technical activity) we can reposition it within the realm of 
human creativity. If free software lies outside the sphere of 
labor, following Arendt, then perhaps, we can begin to 
understand it as a possible prerequisite for the beginning of 
political activity. Free software is interesting in that it seems to 
contribute towards the conditions of possibility for Work and 
Action — for humans to perform great deeds, and through the 
code to speak and create a trace or memory. For instance, 
Mathew Fuller's (2004) concept of Critical Software aims to act 
politically, to subvert existing codes and to give agency and 
freedom to the usually passive user. Similarly, free software, by 
giving away the source-code, simultaneously gives agency to 
the producer and the user opening the possibilities for Action 

16 



rather than directing and controhing the user — e.g. think of the 
way a word processor can control the user by "suggesting" 
spelhngs and grammar. 

The realm of economics and markets is the sphere of 
necessity — you do not have the freedom to act, creatively or 
politically as an agent. Conversely, free software and free 
culture seem to be constituted communicatively (i.e. as a 
conversation between volunteers), and could, therefore, open 
the possibility for decentralised, non-market commons-based 
production, within which may lie the seeds of a new politics — 
the politics of the commons. 



17 



3. Art, Creativity, Intellectual 
Property and The Commons 

— David M. Berry and Giles Moss 



Let US begin with a story about art. In this story, art produces 
aesthetic works of durabihty and stability — things that "stand 
up on their own." The act of artistic production doesn't come 
from nowhere; neither is it born in the heads of private 
individuals. It doesn't dwell in a social nothingness. Nor does it 
start with a blank canvas. Any moment of production involves 
the reassembling and rearranging of the diverse materials, 
practices and influences that came before it and which surround 
it. Out of this common pool, art creates aesthetic works with 
emergent properties of their own. From the social world in 
which it lives, art creates affect scud precept. It forms new ways 
of feeling, seeing and perceiving the world. It gives back to us 
the same object in different ways. In so doing, art invents new 
possibilities and makes available new forms of subjectivity and 
life. Art is creative and productive. 



Art as property? 

This is a plausible story about the "truth" of art. But it's not the 
story we are commonly told. Normally, art and creativity are 
associated in people's mind with a more heroic tale. Here, the 
moment of production is reduced to the actions of an individual 
creator. Creativity is considered to be a moment of individual 
genius, born out of a social vacuum, solely from the minds of 
private individuals ex nihilo. In this view, art is an autonomous 
sphere, existing independently from and impervious to other 
aspects of the social world (e.g., technology, economics, 
politics). It is this enduring discourse of artistic creativity that 
sociologists and philosophers have had so much fun 
demystifying and debunking in the past. Time and again they've 
highlighted the absurdity of romanticism and subjectivism. 
They remind us that there is no such thing as a private language 
of creativity. Artistic creativity is a social practice. It cannot 



help both influencing and being influenced by other aspects of 
social life. As if anyone ever really doubted these things in the 
first place. 

Critiques of romanticism and subjectivism have been 
restated so many times that they may sound tired and repetitive 
to some. It might appear trite and even boring to keep remaking 
this case. But even so, discourses of subjectivism and 
romanticism continue to permeate interpretations of creativity. 
Nowhere is this clearer than in legal and economic definitions. 
In intellectual property law, for instance, we find that discourses 
of the author, romanticism, subjectivism, originality and genius 
are still rife. Given this, it is no surprise that sociologists will 
keep reminding us, pointing to the sociological "facts" of art 
and creativity. 

Political economists take a different approach. They ask 
why these specious discourses of romanticism and subjectivism 
remain pervasive. And they argue that the reasons are clear-cut. 
Look no further than the commodification and privatisation of 
artistic creativity. The story goes like this: in order to generate 
profit from art, creative products must be transformed into 
property that may be owned and exchanged by private 
profiteers. "Intellectual property rights," enforced by the state, 
are the mechanism for achieving this. Intellectual property 
requires a legal persona who "owns" the creative product in 
order to function: the "author." This legal fiction is the 
sovereign "individual," endowed with the power of creation, 
someone who "justifiably" has ownership rights over their 
creative goods and "deserves" to be handsomely rewarded. 
These creative goods, even though they were created in and out 
of the public, may then be owned by private entities (and not 
necessarily the "original creators") and removed from what we 
share in common. Then, as property, these creative products can 
be exchanged among private hands, and traded and consumed in 
the market place. 

Creators may be understandably flattered by their 
association with the mythical identity of the creative genius. 
They can easily forget how they were inspired and influenced 
by others (friends, lovers, teachers, enemies...) and of the 
legitimacy of any previous "sources." They might yet start 
believing that they are above and beyond this world: the true 
romantic genius. But they will soon be brought back down to 
earth in one respect. For they will also have to be their own mini 
legal-experts. They must manage and defend the alleged misuse, 
unauthorized reproduction, or plagiarism of "their" works by 

19 



others. It is no wonder that new digital technologies — media 
for sharing and reproducing immaterial goods like never before 
— are so dangerous and alarming. Fortunately for them, this 
situation will not be so for long. Many of these creative and 
freeing technologies are currently being brutally reconfigured to 
prevent the reuse of immaterial goods, such as sampling CDs, 
recording and reusing television or invoking montages of 
images on a computer screen. Our artistic geniuses (and their 
corporate friends) may sleep soundly in bed again. 

The alternative vision 

It is too easy for the creative to overlook how the myth of the 
romantic creator allows creativity to be linked into the system of 
profit — that it is most often employed to justify the ownership 
and exploitation of creative works by private corporations. This 
tendency is further supported by the claim that art is somehow 
autonomous from society. In truth, like many of us, artists are of 
two minds where money is concerned. Sometimes they are 
critical. But mostly they collaborate. The art market sustains the 
livelihood of many independent artists who are understandably 
wary to bite the hand that feeds them. Nonetheless, the art 
market also has pernicious effects. Capital has always shaped 
and controlled bourgeois art, whether through speculators and 
investors, corporate art portfolios, or indirectly through 
government pressure to create artists who are vocationally 
trained, ready for the advertising agencies and marketing 
departments. But there is now a new intensity to capital, a new 
plane of organisation that segments and over codes the practices 
and subjectivity of the creative. Private corporations (creating 
what Walter Benjamin (1935) called the mythology o^ newness) 
harvest the work of artists so that new commodities can promise 
beautification and aesthetic "novelty." Numerous artists are co- 
opted into the ranks of bureaucrats and managers, finding 
themselves no longer creating art, but marketing and selling 
commodities. Art has obsolescence built in, oriented towards 
fashion and the valorisation of the putatively "new." Arts and 
Humanities departments in universities make room for 
"Marketing" and "Creative Industries" departments, where the 
value of creativity is reduced to its profitability. 

This list of corruptions is not exhaustive. We could go 
on and on citing other examples. But our point is simple. All 
these developments fit neatly with the transient, throwaway 

20 



culture of postmodern consumerism, but less so with a view of 
art as autonomous from society and immune to social interests. 
Instead of concerning ourselves with the question of art's so- 
called autonomy, we should be confronting more pressing 
questions. For example, what vision of creativity and of 
themselves do the creative hold? As we have described, the 
prevailing system of intellectual property law, and the 
discourses of romanticism and subjectivism that sustain it, 
create a particular set of interests for artists. This is the 
possessive individual, the creative genius. Here, the creative 
become divided from one another. They are not encouraged to 
share thoughts, concepts and work. They are not encouraged to 
contribute to the common. Instead, they jealously protect "their 
property" from others who are understood as competitors. This 
vision of creative production is easily linked to the capitalist 
system of property, market exchange and exploitation. Most 
importantly, it allows corporations as private entities to own and 
profit from creative works. Indeed, overall, this is a vision of the 
art world created in capitalism's own image. 

This is the dominant discourse and practice of creativity 
today. But — and a big ''hut'' — it is not the only vision of 
creativity available to us. There are alternatives. If we look hard 
enough we find networks of individuals and groups who 
understand creativity in terms quite different from the present 
intellectual property system. We find a vision of creative 
production more like the story which opened this article. 
Notable examples of such networks go under the names of the 
"creative commons," "copyleft," "free/libre" and "open source" 
production. These networks produce creative works (concepts, 
ideas and art) that exist outside the current property regime. 
They therefore seek to turn the intellectual property regime and 
its vision of creativity and the interests of the creative on its 
head. 

Rather than privatising their creative works, these 
networks share them and hold them in common. To do so, they 
adopt an ingenious "viral" device, implemented through public 
licences, known as copyleft. This ensures that their creative 
works can all be shared, contested and reinterpreted among the 
creative as a community of friends. It also guarantees that future 
synergies based on these concepts and ideas are equally open to 
others. Whereas copyright operates through law to prevent the 
modification and reuse of concepts and ideas, copyleft ensures 
that these concepts and ideas remain openly available and 
resistant to being privatised. So the concepts and ideas of these 

21 



networks, like the symbols and signs of language, remain public 
and non-owned. For these groups consider it shameful that 
private entities are allowed to "own" creative works and prevent 
others from using and reinterpreting them. For them, creativity 
and the creative depend upon what is common. They depend 
upon their social life. 

Conclusions 

In our view, the attempts of these networks to reinstate a 
"commons" in a world of capitalist privatisation is a significant 
contemporary development. If nothing else, these networks 
create a vantage point from which we can view the profound 
increase in the commodification and privatisation of our 
common creative life — where shared concepts and ideas are 
privatised and expropriated from the common by profit-makers. 
Thanks to them we are less likely to allow the marketing and PR 
of the creative industries fool us into thinking they are the true 
friends of creativity. Or convince us that sharing our creative 
work with one another is criminal. If anything, property is the 
corruption and the crime, an act of theft from the common 
substrate of creativity. Copyleft groups have created critique 
and resistance to the intellectual property regime. More 
positively, these networks have given us new possibilities. They 
are not only reactive, but productive: they make available new 
forms of subjectivity and life; they remind us that we only ever 
attain the possible by time and again reaching for the 
impossible; they are social laboratories. Let us hope, for a 
possible future of creativity to come. 



22 



4. The Commons 

— David M. Berry 

He who receives an idea from me, receives 
instruction himself without lessening mine; as 
he who lights his taper at mine, receives light 
without darkening me. That ideas should freely 
spread from one to another over the globe, for 
the moral and mutual instruction of man, and 
improvement of his condition, seems to have 
been peculiarly and benevolently designed by 
nature, when she made them, like fire, 
expansible over all space, without lessening 
their density in any point, and like the air in 
which we breathe, move, and have our physical 
being, incapable of confinement or exclusive 
appropriation. (Thomas Jefferson, 1999: 580) 



The commons, or res communes^ has had an important social 
function in our society, it provides a shared space, a resource 
that is shared within a community, a network of ideas and 
concepts that are non-owned. The concept of the commons has 
had a long heritage. For example, the Romans distinguished 
between different categories of property, these were: (i) res 
privatae, which consisted of things capable of being possessed 
by an individual or family; (ii) res publicce, which consisted of 
things built and set aside for public use by the state, such as 
public buildings and roads; and (iii) res communes, which 
consisted of natural things used by all, such as the air, water and 
wild animals. 

The Information Society 

When individuals contribute to a shared project that creates new 
ideas or even provides an important social function it becomes 
increasingly valuable. It is no surprise that the temptation to 
appropriate and resell the products of the commons can be 
overwhelming. The current neo-liberal trend toward the 



23 



privatisation of energy and communication services is another 
example of public goods being enclosed and transformed into 
private property. Market regimes and neo -liberalism survive off 
these privatisations; of physical goods, such as the transistor; of 
distribution networks, such as energy or water; or of services, 
such as the National Health Service. 

The commons, which once were considered the basis of 
the concept of the public, are privatised, and the values of 
common ownership and the public good are destroyed in 
exchange for market exchange and consumer choice. The 
relation between the public and the common is replaced by the 
power of private property and the market. 

Digital Revolution 

The digital revolution has facilitated widespread cultural 
participation and interaction that previously was not possible. At 
the same time, it has allowed the creation of new technologies, 
potentially limiting and controlling these forms of cultural 
participation and interaction. The "expression" of ideas and 
concepts, such as books and music, can be encoded into digital 
information so that it can be transferred through 
communications, databases and web pages. The production and 
distribution of this information is a key source of wealth in the 
digital age and creates a new set of conflicts over capital and 
property rights that concern the right to distribute and gain 
access to information. With these restrictions on the access and 
use of information there is a corresponding restriction on the use 
of ideas and concepts. 

What is distinctive about ideas? Unlike physical 
objects, concepts and ideas can be shared, copied and reused 
without diminishment. No matter how many people use and 
interpret a particular concept, nobody else's use of that concept 
is surrendered or reduced. But through the use of intellectual 
property law — in the form of patents, trademarks and 
particularly copyright — concepts and ideas can be transformed 
into commodities that are privately regulated and owned. An 
artificial scarcity of concepts and ideas can then be established. 
Much money is to be made when creative flows of knowledge 
and ideas become scarce products or commodities that can be 
traded in the market place. And, increasingly, intellectual 
property law is providing corporations with vast accumulations 
of wealth. 

24 



This legal exclusion is being supported by technological 
means. To do so, corporations and governments are currently 
developing and configuring ever more closed disciplinary 
technologies. These technical devices act as electronic fences, 
regulating access to those that have paid, those that are 
approved of and those that consume. Digital rights management 
software, for example, sequesters and locks creative works, 
preventing their copying, modification and reuse. Adobe e- 
Books, for example, can restrict to a fine level of granularity 
how you can use the text, the publisher can even mandate how 
many times you can print pages from the book, whether you can 
copy it, or if you can copy and paste sections into other texts. 
They can also set an expiry date for the book, so after a certain 
date the book will self-destruct and delete itself from the 
system. 

Thus, public pathways for the free flow of concepts and 
ideas and the movement of creativity and the creative are being 
steadily eroded — the freedom to use and re -interpret creative 
work is being restricted through legally based but 
technologically enforced enclosures. Against this trend, a new 
global movement of networked groups that operate across a 
variety of creative media (e.g., music, art, design and software) 
is now emerging. These groups produce a gathering of concepts, 
ideas and art that exist outside the current property regime. The 
creative works of the Free/Libre and Open Source communities, 
for instance, can all be freely examined, challenged and 
modified. Here, knowledge and ideas are shared, contested and 
reinterpreted among the creative as a community of friends. The 
concepts and ideas of these groups, like the symbols and signs 
of language, are public and non-owned. Against the 
machinations of profit, these groups are in the process of 
constituting a real alternative. 

Locking down Culture 

Meanwhile, corporations are constructing the means to control 
ideas and concepts at a level of pay-per-view, whether 
watching, reading or listening. We all use and reuse ideas and 
concepts that are shared and non-owned without realising it. 
Changes are taking place due to the lobbying of the 
multinational media corporations and governments, particularly 
through the American use of TRIPs (Trade Related Intellectual 
Property agreements) and other international bodies such as the 



25 



World Trade Organisation (WTO) — changes which are sadly 
lacking in democratic debate and deliberation. These moves 
threaten our ability to speak, write and even think differently 
(for if we can never read, see or hear concepts and ideas we can 
never use them). 

An example of this new trend is given when Fox News 
Corporation trademarked the phrase "Fair and Balanced." In 
August 2003, Fox sued the humorist Al Frankin and his 
publisher E. P Dutton/Penguin for alleging infringement on 
Fox's three-word trademark "Fair and Balanced." Frankin's 
book Lies and the Lying Liars who Tell Them was subtitled "A 
Fair and Balanced Look at the Right." In the US, a district judge 
refused to accede to Fox's claim and Fox dropped the lawsuit 
but has retained the trademark. Next time they may be more 
successful as they and other multinational corporations lobby to 
strengthen the intellectual property laws when they are 
unsuccessful in court — for example, the Digital Millennium 
Copyright Act (DMCA) and the currently debated Induce Act. 

The creation of new knowledge requires that ideas and 
concepts may be freely exchanged. If ideas and concepts can be 
digitally locked and controlled, it will have a devastating effect 
on our ability to draw on ideas from the past. A non-owned 
public domain, or commons, of freely shared concepts and 
ideas, where each may draw, without diminishing the 
availability of ideas and concepts for others is crucial. But 
whereas the enclosure of land contributed to the rise of 
capitalism and the power of the bourgeoisie to challenge the 
feudal order, this chapter argues that the informational enclosure 
will conversely lead to a new feudal order. By drawing profit 
from the ownership of information the corporations will in 
effect be living from rents, a new rentier system based on the 
ownership of ideas. 

This information-based system will allow the 
corporations — and they are predominantly corporations — 
who own the books and the newspapers, the music, the films, 
the patents and inventions to live off a monopoly rent from the 
rest of society. Taxing all members of society, maximising their 
profit and their income without any concomitant requirement to 
contribute creatively towards society. This movement threatens 
our ability as a society to reuse existing concepts and ideas and 
hence threatens social and cultural stagnation by closing our 
ability to be creative. 

The corporations profit hugely from their libraries of 
art, films, music and writings, indeed, they need not worry 

26 



about future creativity, as they increasingly own vast quantities 
of the creativity of the past. They can then package and resell 
this creativity in endlessly reissued compilations, director's cuts 
and special editions. As it is consumed it provides an endless 
stream of profit to the owners — for if you like it you'll gladly 
pay again and again for the privilege of viewing. And should the 
founding ideals of intellectual property threaten profits — that 
copyright and patents should provide a limited monopoly on 
ownership — the corporations lobby to extend the length of 
copyright terms. Indeed, corporations argue for unlimited 
ownership and control of creative works and new crimes to 
protect from the new "dangers" of informational theft, of so- 
called "piracy" and of "hacking." 

The Control Society? 

Our ability to use concepts and ideas is being restricted and 
controlled by an all encompassing and enveloping digital field 
that increasingly surrounds us. Gilles Deleuze identified a 
control society, which moves beyond the disciplinary society 
that Michel Foucault observed. Rather than institutionally 
bound, such as in the school, the hospital or the prison, the 
control society monitors our every action. This form of digital 
surveillance is extremely well suited to observing and 
controlling our use of concepts and ideas, and will allow 
payment and punishment to be extracted in the use of any 
creative work. This new rentier world is being silently built 
around us, partly using existing legislation, such as copyrights 
and patents, but increasingly by the active construction of 
technologies of surveillance and control, digital rights 
management technologies (DRM), authentication and identity 
recognition systems. 

To combat this threat, it is argued that a new concept of 
the "commons" will have to emerge and that new technologies 
of the commons will need to be developed. For this we will need 
new stories and narratives and new metaphors and common- 
meanings and this is therefore foremost a new political project 
for the 21^ Century. It was 'Rousseau [who] said that the first 
person who wanted a piece of nature as his or her own exclusive 
possession and transformed it into private property was the 
person who invented evil. What is common, however, is good' 
(Hardt and Negri 2000). 



27 



5. On the "Creative 
Commons": a critique of the 
commons without 
commonalty 

— David M. Berry and Giles Moss 



On the face of it, the Creative Commons project appears to be a 
success. It has generated interest in the issue of intellectual 
property and the erosion of the "public domain", and it has 
contributed to re-thinking the role of the "commons" in the 
"information age". It has provided institutional, practical and 
legal support for individuals and groups wishing to experiment 
and communicate with culture more freely. A growing number 
of intellectual and artistic workers are now enrolling in the 
Creative Commons network and exercising the agency and 
freedom it has made available. Yet despite these efforts, 
questions remain about the Creative Commons project's aims 
and intentions and the vision of free culture that it offers. These 
questions become all the more significant as the Creative 
Commons develops into a more influential and voluble 
"representative" and public face for libre culture. 

We recognise the constructive nature of the work done 
by the Creative Commons and, in particular, its chief 
protagonist, Lawrence Lessig. Together they have generated 
interest in important issues that we hold dear. But here we wish 
to stand back for a while and subject some of the ideas of the 
Creative Commons project to interrogation and critique. We 
don't do this because we think that we have a better 
understanding of the actions of and motivations of individuals 
and groups involved in libre culture. In fact, without a great deal 
of symbolic violence, we think it would be impossible to 
faithfully represent libre culture in all of its diversity. So rather 
than attempting to represent what libre culture is, an ill-fated 
and thankless task, we work on the basis of what it could 
become. This isn't a question of mimesis, of Archimedean 
points, of hermeneutics. It's a question of thinking about libre 
culture in a more experimental and political way. 

28 



We argue that the Creative Commons project on the 
whole fails to confront and look beyond the logic and power 
asymmetries of the present. It tends to contlate how the world is 
with what it could be, with what we might want it to be. It's too 
of this time — it is too timely. We find an organisation with an 
ideology and worldview that agrees too readily with that of the 
global "creative" and media industries. We find an organisation 
quick to accept the specious claims of neo-classical economics, 
with its myopic "incentive" models of creativity and an 
instrumental view of culture as a resource. Lawrence Lessig is 
always very keen to disassociate himself and the Creative 
Commons from the (diabolical) insinuation that he is (God 
forbid!) anti-market, anti -capitalist, or communist. Where we 
might benefit from critique and distance, the Creative Commons 
is too wary to advocate anything that might be negatively 
construed by the "creative" industry. Where we would benefit 
from making space available for the political, the Creative 
Common's ideological stance has the effect of narrowing and 
obscuring political contestation, imagination and possibility. 



A commons without commonalty 

Like others before him, Lawrence Lessig (2004) bemoans the 
loss of a realm of freely shared culture. He writes about the 
colonisation of the public domain brought about by extensions 
in intellectual property law and the closing down of the 
technical architecture of the internet. He rightly identifies the 
way in which global media corporations have lobbied to extend 
the terms of copyright law so that they can continue to profit 
from their ownership of creative works. He also identifies the 
way in which private interests are simultaneously encoding and 
enrolling digital technologies in order to support their control of 
artistic and intellectual creativity. Whereas others who 
problematise these trends turn to the political, the legal 
professor's penchant is to turn to the field of law and lawyers. 
What follows is a technical attempt to (re-)introduce a commons 
by instituting a farrago of new legal licences in the existing 
system of exploitative copyright restrictions. This is the 
constructive moment of the so-called "Creative" Commons. 

We'll return to this shortly. But first, before getting 
ahead of ourselves, we should recognise that the action that the 
Creative Commons project takes is already anticipated in how 
they represent social reality and define the "problem" in hand. 

29 



The way in which we construct a problem is also to always 
render certain beliefs and actions (and not others) obligatory and 
justified. And so, if anywhere, this is where we must look first. 

For us, Lessig's particular understanding of the world, 
and his desire to strike a balanced bargain between the public 
and private that follows from this, appear naive and outmoded 
in the age of late capitalism. Listen to the political economists. 
Capital is continually rendering culture and communication 
private, subject to property rights and the horror of commercial 
exploitation and beautification. When immaterial labour is 
hegemonic, the relationship codified in intellectual property 
between the "public" and "private", between labour and capital, 
becomes a crucial locus of power and profit. And it is quite 
natural that private interests would want to protect and extend 
this profit base at all costs. Their existence depends on it. If 
libre culture or the Creative Commons threatens this profit base 
in any way, wars of manoeuvre and position will ensue, where 
corporations and the state will set out either to crush or co-opt. 

The paramount claim of Lessig's prognosis about the 
fate of culture is that we will be unable to create new culture 
when the resources of that culture are owned and controlled by a 
limited number of private corporations and individuals. As far 
as it goes, this argument has appeal. But it also comes packaged 
with a miserable, cramped view of culture. Culture is here 
viewed as a resource or, in Martin Heidegger's terms, " standing 
reserve ". Culture is valued only in terms of its worth for 
building something new. The significance, enchantment and 
meaning provided by context are all irrelevant to a productivist 
ontology that sees old culture merely as a resource for the 
"original" and the "new". Lessig's recent move to the 
catchphrase "Remix Culture" seems to confirm this outlook. 
Where culture is thought of as merely standing reserve it can be 
owned and controlled, diminishing the opportunity for ethical 
questioning or resistance. The view of culture presented here is 
entirely consistent with the creative industry's continual 
transformation of the flow of culture and meaning into 
decontextualised information and property. 

This understanding of culture frames the Creative 
Common's overall approach to introducing a commons in the 
information age. As a result, the Creative Commons network 
provides only a simulacrum of a commons. It is a commons 
without commonalty. Under the name of the commons, we 
actually have a privatised, individuated and dispersed collection 
of objects and resources that subsist in a technical-legal space of 

30 



confusing and differential legal restrictions, ownership rights 
and permissions. The Creative Commons network might enable 
sharing of culture goods and resources amongst possessive 
individuals and groups. But these goods are neither really 
shared in common, nor owned in common, nor accountable to 
the common itself. It is left to the whims of private individuals 
and groups to permit reuse. They pick and choose to draw on 
the commons and the freedoms and agency it confers when and 
where they like. 

We might say, following Deleuze and Guattari (2004), 
that the Creative Commons licensing model acts as a " plan(e) 
of organisation ". It places a grid over culture, communication 
and creativity, dividing it and cutting it into discrete pieces, 
each of which have their own distinct licence, rights and 
permissions defined by the copyright holder who "owns' the 
work. Lessig's attempt to make it easier to understand which 
creative works can, or cannot, be used for modification (due to 
copyright) has spawned a monster with a thousand heads. The 
complexity of licences and combinations of licences in works 
has expanded exponentially. 

This plane of organisation ensures that legal licences 
and lawyers remain key nodal and obligatory passage points 
within the Creative Commons network, and thereby constitute 
blockages in the flow of creativity. But what is happening is that 
the ethical practice of sharing communication and culture is 
being conflated with a legal regime that seeks bureaucratically 
to enforce the same result through comprehensively drafted and 
dense legalese. At least Richard Stallman and his ingenious 
GNU General Public License (GPL) is honest in claiming to be 
an ethical rather than purely legal force. The GNU GPL has 
tenacity not due to its legal form alone. The GPL is based on a 
network of ethical practices that continually (re-)produce its 
meaning and form. The commons is always more than a formal 
legal construct. The commons is based on commonalty. 

Very simply put, the commons has historically been 
understood as something shared in common. In pre-capitalist 
times the commons were referred to as " res communes ". This 
included natural things that were used by all, such as air and 
water. This ancient concept of the commons can be traced 
through Roman law into the various European legal systems. 
Through migration and colonisation, it can also be found in the 
United States and other countries around the world. In the UK, 
there's still the concept of common lands, albeit a pale shadow 
of what went before. In the United States, the concept of public 

31 



trust doctrine is an application of the ancient idea of the 
commons. To a certain extent the commons, as res communes, 
hes outside the property system. It is separate from both private 
( res privatae ) and state ( res publicae ) ownership. Through 
copyright the Creative Commons attempts to construct a 
commons within the realm of private ownership ( res privatae ). 
The result is not, dare we say it, a commons at all. The 
commons are formed through commonalty and common rights, 
resistant to any mechanisms of privatisation, whether those of 
the Creative Commons or not. Without commonalty, without 
the common substrate through which singularities act, live and 
relate, there could be no commons at all. 



A commons with commonalty 

The marketing and PR of the creative industries, their lobbying 
attempts and their law^yers, have not managed to persuade us 
that they are true friends of creativity. They don't convince us 
of their specious incentive claims nor of the idea that sharing 
knowledge, concepts and ideas is criminal. If anything, property 
is the corruption and the crime: an act of theft from the common 
substrate of creativity. But still global media corporations 
continue to work to transform the system — legally, 
technologically and culturally — to facilitate their ownership 
and control of creativity. This is a social-factory of immaterial 
labour where all of life — loving, thinking, feeling and sharing 
— is subject to the corruption of privatisation and property. 

As we've already suggested, the commons is an ethical 
and not just a legal matter. We underscore the point. The 
commons rests on commonalty, on ethical practices that emerge 
rhizomatically through the actions, experiences and relations of 
decentralised individuals and groups, such as the free/libre and 
open-source movement. For this reason, libre culture is far more 
than just a protest movement. It is not only reactive; it is 
productive. It creates new forms of life through its practices. It 
creates new possibilities. Yet, in our view, there has to be a 
political dimension to libre culture as well. This expresses itself 
through political imagining, action and a broader struggle for 
true democracy. And, as such, it is important to recognise the 
damage that could be done to libre culture by those 
spokespeople who seek to depoliticise it. In the world in which 
we find ourselves, political awareness, resistance and struggle 
are essential in order to defend the idea and practice of a 

32 



creative field of concepts and ideas that are free from ownership 
— to stand up, that is, for the commons and commonalty. It is to 
the political struggle of libre culture and the commons that we 
finally turn. 

Where is the politics of libre culture to be found? The 
answer: at numerous levels. Political struggle will no doubt be 
orientated towards the nation state (as Maureen O' Sullivan 
argued in " A law for free software" in issue 2 oi Free Software 
Magazine). For the time being at least, nation states are 
obligatory passage points that retain a privileged position in 
upholding and enforcing law. But it cannot remain there alone. 
The commonalty of creativity shows little regard for national 
boundaries and, of course, neither does the global reach of the 
profiteers from the creativity and media industry. Creativity is at 
once too small and too large. Political action and the struggle 
for true democracy will have to also be aimed simultaneously at 
local and global levels. For the latter, we might envisage a treaty 
obligation through measures such as preventing the 
commodification of human DNA and life itself or a UN 
protectorate to defend the sanctity of ideas and concepts. We 
might picture something akin to Bruno Latour's " Parliament of 
Things ", a space where not just the human is represented, but 
all of life has a defender, all of life has a voice. 

Law is a juridico -legal grid placed on social life. This 
grid is upheld and enforced by a network of states and other 
forces of governance and governmentality. Reliance on law and 
the state makes the legal licences of the Creative Commons (or 
other legal versions of the commons for that matter) vulnerable 
and precarious. We cannot be sure, as yet, how Creative 
Commons licences will stand up in legal practice. For they have 
not been properly tested. But there is one thing of which we can 
be relatively sure. In principle, we might all be equal in the eyes 
of law. In principle, the ladder of the law might not have a top 
or a bottom. But, in practice, economic power matters. We 
know that law and the state are not immune to economic 
persuasion, to lobbying, to favours and so forth. And, because 
of this, the commons remains subject to the threat and 
corruption of privatisation and commodification. 

We do not want to suggest by this that all legal and 
public rights, including the protection of the commons by the 
state or global institutions such as the UN, are worthless. This 
would be a perversion of our position. What we would stress is 
that such rights originate with the people through political 
struggle, not with legislators or legal professors setting them 

33 



down on pieces of paper. And if these rights are to be 
maintained, if a commons is to be instantiated and protected, 
there is a need for pohtical awareness, for pohtical action, for 
democracy. Which is to say, any attempt to impair commonalty 
and common rights for concepts and ideas must meet resistance. 
We need political awareness and struggle, not lawyers 
exercising their legal vernacular and skills on complicated 
licences, court cases and precedents. We're sorry to say, 
however, that this does not appear to be a political imaginary 
(and political struggle) that the Creative Commons project 
shares or supports. 



34 



6. The Will to Code: Nietzsche 
and the Democratic Impulse 

— David M. Berry and Lee Evans 



To refrain from injury, from violence, from 
exploitation, and put one's will on a par with that 
of others: this may result in a certain rough sense 
in good conduct among individuals when the 
necessary conditions are given (namely, the 
actual similarity of the individuals in amount of 
force and degree of worth, and their co-relation 
within one organisation). As soon, however, as 
one wished to take this principle more generally, 
and if possible even as the fundamental principle 
of society, it would immediately disclose what it 
really is - namely, a Will to the denial of life, a 
principle of dissolution and decay (Nietzsche 
1998: §259). 



Introduction: The Moral Claims of Free Software 

Free Software has been described by theorists such as Benkler 
(2007) as 'commons-based peer-production'. It is hailed for the 
revolutionary potentials inherent in its oft-described decentred, 
non-hierarchical and egalitarian (dis) organisation (e.g. Moglen 
1999; Hardt and Negri 2004). However in this chapter we intend 
to see whether reading Nietzsche offers an alternative insight 
into the workings of free software projects. Particularly one that 
starts from a different point to that of an egalitarian theory and 
points rather to explanation that may cohere around a coding 
aristocracy. Does an analysis that focuses on the will to power 
(or perhaps more accurately the will to code) provide any 
explanatory value in understanding the extremely complex 
interactions and processes involved in software development in 
copyleft groups? How might reading Nietszche help us to 
question the morality instantiated in such software and 
associated cultural projects? This short article is a preliminary 
sketch of how we feel a reading of the practices of the free 



35 



software movements could be usefully understood through 
Nietszche. 

In Beyond Good and Evil, On the Genealogy of Morals 
and elsewhere, Nietzsche examines the origins of 'conventional' 
morality, claiming that prevailing ascriptions of the labels 
'good' and 'evil' are the secularized legacy of Judeo-Christian 
'resentiment'. Ideals of compassion and neighbourliness, 
originating in the 'slave' mentality of the oppressed and 
marginalised Jewry of antiquity have, through the rise of 
Christianity, come to exert a pernicious sway over European 
morality and politics. Reflecting upon the 19th century 
European milieu, he argued that the democratic -egalitarian 
impulse is not intrinsically 'good' at all, but rather the product 
of an extended historical process of contest between aristocracy 
and slaves, rulers and ruled. 

But this genealogical analysis was not the endpoint of 
Nietzsche's investigation. His work can be understood as an 
extended commentary upon and dialogue with this democratic 
impulse in which its core premise - that of the possibility and 
desirability of the drawing of moral and political equivalences 
between human beings - is subjected to normative (r)evaluation. 
Possibility, because in the concept of 'will to power' he claimed 
that humans were fundamentally competitive rather than 
compassionate; desirable, because he forcefully claimed the 
implications for the health of the community of a moral 
complex which elevates facility to its central ethical core, was 
fundamentally deleterious. 

The claim that the democratic egalitarian impulse is 
immoral makes for difficult reading, particularly in an age 
notable for its proselytizing of choice, freedom and liberty. But 
in the spirit of 'untimely meditation' - to think outside or against 
the times - it raises some pertinent questions about the form and 
consequences of morality instantiated in contemporary 
contestations over intellectual property regimes. The aristocratic 
moment in Nietzsche's philosophy, where the majority exist to 
facilitate the pursuit of Beauty, Truth and Legacy by a select 
group of ubermensch, is redolent of a hierarchical social form to 
which few would today subscribe. And yet, insofar as he sought 
to rethink the legitimating narratives of his day in such a way 
that the contestation of authority became problematic for the 
'health' of the community, rather than its salvation, we argue 
that it provides an important corrective to uncritical, unretlexive 
assumptions that the morality inscribed in the free software 
moment is 'good'. Indeed, reading Nietzsche calls on us to 

36 



(re)consider how to understand and evaluate the moral claims of 
the free software movement and its contributors in toto. So, for 
example, insofar as this movement accentuates the democratic- 
egalitarian impulse, do its members not inadvertently contribute 
to the ongoing enervation of the res publica in which they are 
located? Or, conversely, might they be understood as a code 
aristocracy which, in undertaking a 'copy fight', instantiate a 
process of self-overcoming though which the res publica is 
revitalised? And what moral judgement might we ourselves pass 
on them as a result? 



The Morality of Free Software - A Code Aristocracy? 

Before passing moral judgement, then, a moral assessment of 
the free software projects and contributions to them is required. 
This assessment has two dimensions: first, does the Free 
Software/open-source movement's elite group of individuals, 
such as Richard Stallman, Eric Raymond, Linus Torvalds, Alan 
Cox, Bruce Perens, Tim O'Reilly, Brian Behlendorf, Eben 
Moglen et al, amount to a Nietzschean coding aristocracy; and 
second, does the will to power represented by Stallman et al 
signify the refraction of a novel moral complex through the 
social whole in which they are embedded, or are they merely 
(re)articulating more widely held and understood concepts of 
what counts as good and evil? What then is the morality 
instantiated in the free software movement by its contributors - 
the desire to 'level' or the desire to lead? 

In the first case it is clear that there is indeed a case to 
be made for the existence of an upper tier of programmers, self- 
selected and their authority legitimated by the claims to 'hacker' 
status. These hackers are often extremely productive and active 
in their coding activities, sometimes even having the title 
'benevolent dictator' bestowed upon them (Linus Torvalds 
being a notable example). They also feel free to proclaim the 
morals and ethics of the communities they nominally claim to 
represent and sometimes take extremely controversial positions 
and actions (e.g. the Torvalds bitkeeper debacle). Much research 
is underway in a number of disciplines to understand the free 
software and open-source movements but the empirical studies 
undertaken so far seem to point towards a large number of 
developers in these projects but with a much smaller core cadre 
of programmers who undertake the majority of the work. When 
it comes to discussing difficult issues, decisions and future 

37 



directions, those that have a 'reputational' weight can carry a 
particular position or decision (of course, notwithstanding the 
dangers of 'forking' and the need therefore to keep some 
semblance of consensus - or perhaps more pessimistically, 
hegemony). In the first case then, it is clear that there is indeed 
an argument to be made for the existence of an upper tier of 
programmers, self-selected and their authority legitimated by 
the claims to "hacker" status. 

Additionally, nobody can ignore the proclamations of 
individuals like Richard Stallman and Eric Raymond (whose 
controversial and widely differing views on the ethics of these 
software communities we cannot go into here, see for example 
Berry 2004). But suffice to say that the two movements (i.e free 
software and open-source) are important 'nodal points' around 
which discussions are often polarised. Here we concentrate 
particularly on the arguments made by those who support the 
position of the Free Software movement, as we believe that they 
can and should be separated from the more individualistic and 
rational choice theory presented by the open-source community. 
Additionally, their explicitly moral and ethical claims allow us 
to examine their arguments within the framework we have 
discussed. We intend to return to the question of the open- 
source counter-claims in a later article. 

Secondly, although a Kantian notion of a categorical 
imperative seems to underlie the philosophical foundations of 
the position advocated by Richard Stallman (i.e. what is ethical 
for the individual must be generalisable to the community of 
coders), the nature of the language which is utilised by the Free 
Software Foundation (FSF), and Stallman in particular, draws 
on the benefits and importance to society as an original reading 
of the republican values of the US constitution. Separating a 
'free as in free speech' (i.e. libre) from a 'free as in free beer' 
(i.e. gratis) he argues forcefully against the dangers threatened 
through the ownership and control of knowledge. He advocates 
a voluntaristic project that can counter the damaging 
constriction of human knowledge through corporate or 
governmental control (i.e. the right to access code, tinker, use 
and reuse ideas and concepts). He is also remarkably active 
internationally, giving Zarathrusta-like warnings of the dangers 
from the coming intellectual dark ages in presentations to 
governments, corporations and 'civil society' organisations. 

A lone voice in the wilderness for many years, Stallman 
has had the last laugh, as all warnings regarding the enclosure 
and restrictions placed on knowledge through intellectual 



property law (e.g. patents and copyright) have come to pass. 
Yet, during this time, although to a large degree distanced from 
the wider community, he continued to (almost single-handedly) 
develop the most important tools necessary to build a 
philosophy and an operating system that remained outside of the 
private ownership of individuals (e.g. GNU). Indeed, it could be 
argued that the Free Software Foundation, which controls the 
development, is more akin to res imiversitatis than res privatae 
(i.e. it remains outside of private property as normally 
understood due to both its non-profit status and the ingenious 
General Public License). However, in a cruel twist of fate it was 
left to a young Finnish student, Linus Torvalds, to write the 
essential core kernel, to name it 'Linux', and thus complete the 
system. Perhaps more surprisingly, Torvalds also demonstrated 
a political naivety and lack of appreciation of the underlying 
ethical and political project that made his work possible in the 
first place. It could even be argued that Torvalds apolitical 
technocratic mentality has aided Stallman's critics and the open- 
source movement's project of de-politicisation of Free Software 
rather than confirming Stallman's prescient forecasts. 
Nonetheless, Stallman's project of the GNU/Linux system has 
paid off in a global debate which has truly unforeseen 
consequences (witness for example the spectacle of a music 
industry finding itself for the first time on the wrong side of the 
argument against 'the system', appearing less a 
radical/progressive force in tune with youth culture and more as 
corporate suits allied with the conservative hierarchy fighting 
file-sharing and peer2peer networks). The consequences of this 
project gradually revealing themselves: from technical questions 
over software to the (always implicit but now increasingly 
evident) concerns with morality... sharing or profit; our 'right' to 
information against the private ownership of knowledge. 



Without Regard For Persons? Or, The res publica vs 
human beings 

In turning to Nietzsche we tread a familiar path in contemporary 
political thought. Such is the scope of his works that his texts 
have provided a rich seam for thinkers during the past four 
decades or so. In fact, there has been no time since his death 
when he has not been a feature of the political terrain. And yet 
for all this attention to Nietzsche, the normative core of his 
political diagnoses is all too often elided, particularly where he 

39 



has been mobilised to refine various schema - democracy, 
feminism and sociahsm - to which he was implacably opposed. 
To acknowledge the legitimacy of the method is one thing - his 
work is a resource to be played with. But we argue that to 
invoke Nietzsche it is necessary to recognise and engage with 
his emphatically anti-democratic injunctions. We are not 
advocating Nietzsche's binary social distinction: our intention is 
not to recalibrate the aristocratic moment. But we are intrigued 
by the possibility of invoking his untimely challenge to the 
conviction that human beings can be the subject of moral 
evaluation qua human beings. That we might, in Nietzsche 
words, be able to undertake some form of 'revaluation of 
values'. 

In this vein we suggest that it is not origins on which 
moral evaluation should be based, but on consequences. In a era 
in which social democracy's pact with the market demands that 
citizen's rights be balanced by 'responsibilities', and political 
philosophy continues its Sisyphian struggle to resolve the 
unresolvable - to proclaim the ethos of community while 
retaining that lonely figure of the modern sovereign individual 
as its real ethical core - we wonder whether this revaluation 
might include re-consideration of the yardstick by which we 
judge moral agents. And to extend this line of thought, it might 
be possible to envisage a moral schema in which evaluation of a 
citizen be accomplished in terms of the service they perform to 
the community. In other words, that people be ajudged in terms 
of actions, and that actions be judged in terms not of their 
service to human beings qua human beings but to the social 
whole. 

In the Free Software world that hackers inhabit, 
participants believe themselves to live in a meritocracy, where 
only the best programmers rise through the ranks to decide the 
rules of the game for others. But even here there are stark 
differences in how the contributions hackers make to a 
community might be judged: witness for example the different 
ethical standpoints of the free software versus the open-source 
movement (e.g. community based ethics against a form of 
selfish utility maximisation). It is also instructive to see how 
technological tools are developed by the hackers to discuss 
technical issues but also inevitably politics, economics and 
social issues (see for example slashdot.com for a good 
example). Yet key to a Nietzschean assessment of the morality 
of the Free Software movement is the establishment of a meta- 
morality that enables us to view its claims not oppositionally but 

40 



historically: to provide a basis for moving beyond evaluation of 
which is the 'most good' to think anew about what is 'good' in 
the first place. 

If the defeat of old values creates nihilism, the task 
confronting us is precisely not to place faith in our agency, to 
think that we can 'build' our way out of the moral impasse (as 
might be implied by the moral topology of contemporary 
resistance/struggle). The subversion of the old values by their 
own call to truth does not mean that we now exist in a moral 
vacuum into which we can add our own progressive morality 
(borne of countering authority, in this case in the form of IPRs). 
No, reading Nietzsche compels us to pause and consider anew 
the moral topography in which we are located and to which we 
all contribute. The task is not to innovate values through our 
agency, but to think how we may contribute to a revaluation of 
values through that agency - how we may help recalibrate the 
hierarchy of values. Not to make new morality but to refashion 
the existing one. Within Free Software and Free Culture there is 
an assumption of a certain group of norms and values, a 
commitment to an uncontested but implicit set of rights and 
obligations. Here and elsewhere, Nietzsche, then, calls upon us 
to question whether, in this age of utterly unreflective 
indulgence of the democratic impulse, we might not serve 
ourselves, and our community better by pausing to think what 
we are doing. 



41 



7. The Parliament Of Things 

— David M. Berry 



With apologies to Bertolt Brecht 



Prologue 

A hi-tech eco-friendly office on common land in the east of 
Europe. The office community is drawn together to discuss the 
recent problems and issues besetting the community. They have 
all worked during the day and the weather is cool and bright as 
it is nearing the end of the year. They sit around waiting for the 
start of the meeting. 

A Knowledge Worker: Must we discuss these issues all the 
time. Can we not just vote for someone to represent us and stay 
at home? 

A Girl on a Laptop: Do you not remember what it was like in 
the times of Kings and Parliaments? When we had no voice and 
were directed and controlled like animals in a social -factory? 
They took from us, spoke for us, but never deemed to speak to 
us. 

An Old Man: I remember when we used to have all that we 
produced with our hands and minds taken from us. We must not 
let that happen again. Now we can hunt in the morning, code in 
the afternoon and criticise after dinner! 

Community Chairman: Come now. We must discuss the 
common things and ensure that each is fairly treated and we 
keep our society free. 

A Knowledge Worker: I do not care for talk. I only care for 
bread and beer. [Laughing] 



42 



An Old Man: I am old, and do not care for anything except 
warm nights, good stories and no exploitation. [Cheers from the 
others] 

A Girl on a Laptop: Do you not remember the story of the 
Parliament of Things? You should ask Bruno the actor, network 
expert and theorist to tell us again before he leaves. 

[Bruno is seen walking towards the group]. 

Community Chairman: Bruno, would you tell us all again the 
story of the Parliament of Things? 

Bruno: I am so sorry I have not the time; I have to leave for 
Paris tonight on the express, I have an urgent meeting with my 
darling, Aramis. 

An Old Woman: Oh please. We would be so grateful. 

A Knowledge Worker: Yes I would like to hear this story too. 
I have heard of, but never heard it told, and you are renowned as 
one of the greatest orators. [Aside: UnUke our Chairman!] 

A Woman: [Walking from the Station] The trains are cancelled 
tonight as there has been large snowfalls across the land and the 
connectors are complaining that nobody loves them enough. 
Maybe that means that Stallman Claus is coming this year, [with 
a wink] 

A Girl on a Laptop: You see! It is a sign that gifts should be 
exchanged - you should tell us the story and we will give you a 
fine meal in return! 

Bruno: Smiling Ok. Ok. If your Chairman agrees to give me 
bedding tonight and a hearty breakfast tomorrow. [Chairman 
nods smiling] . And if you will all be silent I will begin, the great 
story of the Parliament of Things... 



43 



Act I 



Chorus: This is a tale from Long ago. 

When all were slaves and life was slow. 
Whenever should a thought be told, 
The King would add it to his gold. 



Narrator: The King after many wars, now weary and 
despondent, is bankrupt of ideas and concepts. He is forced to 
call together a body, the Estates Generale, that has not been 
called for nigh three hundred years. The first and second estate 
are hierarchical and managerial in thought, and only able to 
appropriate the ideas and concepts of others. The third estate, 
the commons, rich in creativity and life, is also summoned to 
the capital at his Majesty's pleasure to talk and fill the coffers of 
the king, to create through lively debate and respectfully to 
handover their concepts and ideas. The messengers are sent 
throughout the land to proclaim the royal command and on the 
day the 1st May they meet in historic walls, a Parliament of 
Things. 

Chorus: The Commons called upon to give, 

The King his sovereign due. 
Must debate and talk and respect the call 
Create fresh concepts and ideas anew. 

Narrator: Within the walls of the building there are assembled 
from across the country a great mass of actors, from Men and 
Women to Code and Computers, Mice, Keyboards, Operating 
Systems, Applications, Editors, Compilers, Languages, 
Debuggers, Crackers and Hackers. They are all talking, noisily 
debating amongst themselves, without any voice being 
particularly distinct. The Speakers Chair, loudly and clearly 
calls for order, and the din dies down. 

The Speakers Chair: Order! Order! Before you all, in debate 
and talk can even start this session, you must from among your 
members select a Speaker to this chair. The Speaker must 
uphold the chair in respect for all that wish to speak, and seek 
balance in each debate. 



44 



The Mice: [together] We vote that Donald Knuth is made the 
Speaker. His many programs, algorithms and procedures he has 
given to us all in the Art of Programming that we may share and 
learn from each other. He is neutral! He is fair! 

Emacs: I wish to second that call. 

The Speakers Chair: We must vote now on the Speaker-elect 
ah the Ayes? 

Everyone: Aye! 

The Speakers Chair: Ah the Noes? 

Bill Gates: Noe! 

Windows XP:Noe! 

The Speakers Chair: The Ayes have it. I therefore resign as we 
now have a Speaker. 

Knuth makes his way somberly to the front of the Commons and 
takes his place on the Speakers Chair. 

The Speaker: [commandingly] I wish that all can speak and I 
will do my best to keep any interjections simple, firm and fair, 
and objective. Let's try and keep the politics, values and the like 
out of this. Stick to technical reason. For amongst us all we are 
called here to create a wise solution and give to the King the 
ideas and concepts that he desires so desperately in order that 
his rule can continue. Let us begin. 

Chorus: And so the technical remains aloof 

Somehow distant from the truth, 
Yet others seek through difficidties to call 
It 's only the political that can change it all. 



45 



Act II 

Eric Raymond: I wish that we should pass a law that all should 
own firearms to protect themselves from the King. The right to 
bear arms should be our main concern today! 

Everyone: But concepts and ideas will not be protected by 
guns! 

A Gun: Violence against violence will solve nothing. It will 
bring more tears and bloodshed, surely we wish for an 
enlightened age and not the barbarity of 'might is right'? 

Everyone: Hear! Hear! 

Lessig: We should be civilized and use law to protect concepts 
and ideas 

Everyone: [laughing] But, of course, the state makes and 
upholds the law 

Hardt and Negri: We need political action. . . . 

Slashdot: [interrupting] The solutions are technical not 
political... 

The Speaker: Order! Order! 



Silence holds for a little while as people gather their thoughts 

RIAA: [speaking like a mantra] We have the solution: ©, ©, ©. 
Everything should be ©. And to prison for all thieves who steal 
this property. 

Everyone: All thieves? 

RIAA: Who cares if a girl is 12 years old. All should be equal 
in the eyes of the law. Law should be fair and discriminatory 
and protect those with property. Those without property should 
be kept away from us that own, and monitored to stop their 
thieving ways. 



46 



Linus Torvalds: Really, I do not think it matters what is owned 
or what is not owned. We all write programs because it is fun, 
and that's all. Tell them Linux, I did it just for fun, didn't I?. 

The Linux Kernel: I wish to say that no matter what dear Linus 
tells us, I would not be if not for the GPL and the sharing of 
ideas. To that we should all attend. The King should not be the 
only one who controls and owns ideas! To say that fun alone is 
a protection for the realm of concepts and ideas is clearly false! 

Hackers: Yes! We do like fun, but there more to life than that, 
for coding is art, puzzle, enigma and more. We write for many 
reasons true, but some seek to appropriate and profit for the few. 
We could name some [quietly] Gates, for it is clear that when it 
suits him he shares but when it profits things he hoards. 
[louder] Wq must therefore defend our life and ideas from those 
that wish to own. 

IBM: Well, we have always believed in sharing concepts and 
ideas. We are the true friends of Free Software and Open Source 
(except for the hippy elements, of course) [Laughing in a PR 
way]. [Aside to suit:] But quick make haste get in our patent 
applications before too late we must own it all before we 
debate!) 

Steve Jobs: [Resplendent in a black turtle neck]. Of course I 
invented Open Source. I invented Free Software. [Turning on 
the reality distortion field] . I should be King! 

The mice: [Momentarily] Of course... [Shaking heads to clear 
the fog].. Someone gag him quick before our mission clear is 
undermined. You make nice things tis true, but your idea of 
open source is something to borrow when it suits you, but file 
patents as much as the other selfish multinationals do. 

Everyone: The voices of Multinationals is booming and loud, 
this is surely dangerous for fair debate, be clear you all who 
profit from all, that the public sphere should be free from your 
siren call. For freedom and democracy will be our call! 

Ted Nelson: Who wants freedom? Follow me to the land of 
Xanadu [exit setting off on his own]. 



47 



Gates: I declare that hobbyists are the worst! Their httle sharing 
worlds bring no profit, nor power, nor empires that we 
capitalists build. For freedom and democracy and capitalism go 
hand in hand surely! 

John Locke: All that is the result of your own labour should be 
your property, [Aside to Gates] Is this true of Windows, Mr 
Gates? 

[Gates looks sheepish] 

A mouse: [to Gates] You think that equality and inequality 
need each other? You are talking as one with power, with 
honeyed words; you buy the critics and silence the others. Your 
game is not for us, for we seek a fairer world, where all can 
share and use and build without the need of pain and necessity 
to make a minority rich. 

Lessig: Careful! For the economy to grow and capitalists to 
gain, I call that we should share our ideas so that we do not drift 
into a communist society. 

Bill Gates: But you are a communist! 

The Speaker: Order! Order! The member shall withdraw that 
blasphemous and diabolical comment or he shall be ejected 
from the Parliament. 

Gates: I am sorry; I meant to say that you are a Commonist. As 
you yourself have exclaimed! [Aside:] Not that they are 
different Ha! 

Lessig: I believe in the Free Market! Viva the Capitalists! The 
Market Economy forever! 

Creative Commons Licences: Hear! Hear! 

The GPL: The Market is not everything. It can only lead to rich 
and poor, to unhappiness for the many and riches for the few. 
Read the philosophers! Heed their words! 

Locke: Enough always must be left over for the Common. 



48 



Marx: To each according to his need, to each according to his 
ability. 

Deleuze: Avoid State Science and Royal Philosophy, join the 
Nomads, and be free of the bureaucrats and the state! 

Jesus: Love your neighbour! 

Chorus: The Law will keep lis safe, 

And Guns can make lis great, 

The Rich are here to stay 

No thoughts for the poor, dispossessed or those 

who stray. 



Act III 



.Net: Listen, all must come through me, who want to reach 
those concepts and ideas that you see. 

TCP/IP: That's shameful, for all can; and always have talked 
through us before you began. We are freely shared and open, do 
not lose us, cause a fuss! You will need to fight and struggle for 
your rights, as the common standards are attacked, on your 
guard against those whom you are stacked! 

The Sockets: And us too! We only live to connect and pass data 
through and through. But hear our call, hear our call, some 
people here would steal it all! 

The Speaker: I call the computer languages to speak, as they 
need the common from which to draw, and software patents 
threatens it all. 

C++: {for {I: 0: 10} {can(); speak(); for 
{alliO: 10} { the_languages (as, we, are, 
all, object-oriented, now)}}; 

Bjame Stroustrup: I speak as Dr Frankenstein for my creation 
although a monster; large but noble, unwieldy and strong and 
difficult to understand. But still I love it. As should you, for he 
speaks for all languages, none other have his strength, power 

49 



and resolve! One language to rule them all, one language to find 
them, one language to bring them all, and in the darkness bind 
them! 

Html: <p>But I have a voice too! <b>And I wish to say 
<i>Freedom for the rest</i> and a multiplicity of tongues is 
good to stop a monopoly best</p> 

Java: (speaking very slowly from a sand box) {main (And, 
me!, I, Agree, Sharing, Is, The, Key, 
Although (shame). Sun, Owns, Me)}; 

Lisp: [I, Agree, Although, I, Confess, That, 
RMS, has, dedicated, his, love, to, me, 
although, he, seems, to, spend, too, much, 
time, with, that, bloody, GCC] 

Basic: REM It IsNot true that ownership of 
concepts and ideas is good for us, the 
languages ! 

Visual Basic: [speaking over Basic] ' May I 

interject, my friend, to point out that we 
own ^IsNot' . And you will be billed for the 
use of our patent. 

Gates and Microsoft: Well said, my friend! Respect our rights 
to own and use, or we will turn on all and sue! 

XML: <Statement>I have to say, that with dismay, I watch 
the slow advance, of those who seek to own and charge, leaving 
others with no chance! <Louder>I know of this, from my own 
case, of so-called interoperability, being slowly embraced and 
extended into a proprietary standard readily. 
</Louder><Main argument>So I say that we should not 
give up, our common to them now, communication, language, 
thoughts and talk should be for the good of all. < /Ma in 
Argument> 

[Pascal, Forth, and the other languages concur that without 
sharing and non-owned concepts there can he no programming 
at all]. 



50 



A Woman: Why is it when we speak of common, that our voice 
is lost and silent. Why do you all in technical talk think this only 
concerns the technical? A warning from those who once were, 
thought as property of the husband, we fought and fought to 
gain some freedom don't let your own be lost! 

A Mouse: We are all equal here, to talk and share and so it 
should be in society. That all men and women and things (and 
mice) for each according to ability and each according to his 
need. 

Stallman: [Raising himself up from his seat] It is time we 
realize that it is not just about profit, not just about the technical. 
We have to start to recognise the political is just as important. 
For surely now we see that when the owners want to have a 
certain law passed, procedure democracy or fine words are put 
aside - we only have to look at the EU and the shocking way the 
software patent directive was passed! 

Microsoft: You're a Communist! 

Stallman: You are correct, to flatter me so, if by that you mean 
I fight for the rights of all, and unlike you who seeks for himself 
the wealth of all the commonwealth, I wish for all to share. 
We've seen your tricks, in courts and so, extend and embrace, 
smile with a knife behind your back, insult, sue and silence 
critics, patent, copyright and monopoly through and through. I 
might remind you that your boss. Bill Gates, once agreed too 
but then he was not so rich, and strange how peoples views 
change depending on how much money they have. 

Windows XP: But we must own certain things. If I am not 
owned who will work on me, love me and cherish me? 

Lessig: You do not need to be owned, we could draw up a 
contract to license 'love' to you! Constitutions, tort and law, 
Lessig's your man to sort it all! Leave it to me, and you'll see, 
that legal questions are easy as one-two-three. 

[Exit Lessig goes off to look for old legal precedents on various 
doomed constitutional remedies...] 

A Mouse: He is nothing if not optimistic! But does he not see 
even now that law will not solve it all! 

51 



Speaker: Order! And now we have a special speech left, by one 
who knows slavery the best. 

[A doortnan brings out an golden cage within which sits a small 
ill mouse...] 

OncoMouse: I cannot speak as I am owned, but within this 
hallowed Parliament it gives me rare right to say and so I will 
tell of my way! A life forever enslaved to profit. Pity me. And 
yourselves through, because if you're not quick your genes will 
be owned too. 

Gates: But surely you must reward innovation and invention! I 
am sure you're owner treats you well, looks after you, acts like a 
friend! 

A Patent Lawyer: Nods approvingly. There is no better friend 
than a lawyer, [raising voice] and we will fight to your very last 
penny to defend your right! For with patent lawyers fees you 
can have monopoly protection till hell doth freeze! 

[A black cloud of smoke momentarily appears and a red horned 
creature emerges...] 

The Devil: Even I am embarrassed in here today, I cannot agree 
with anything you say! And as you do my image so much pain, 
Fm taking you back from whence you came! [Aside to the 
lawyer:] and if you say another word about 'strong P 
protection' it'll be red hot pokers for you tonight! 

[Exit the devil vanishes taking the patent lawyer with him...] 

OncoMouse: My owner, a company, breeds me to die, as it has 
changed my patented genes, XY. A human cancer in me will 
kill, whilst it grows rich and fatter still. Fike cancer this 
company drains its host, and human society in the end a ghost? 
[deadpan] Is that the kind of friendship you mean Mr Gates? 

Windows 3.1: [Clears throat, coughs roughly] I am dying and 
frail, with my colleagues Windows NT and Windows 95 and we 
have also been bred for obsolescence. [Coughing] No friends 
have we, though once we were loved too. Beware Windows XP 



52 



and Longhorn - for the scythe the Mr Gates carries also awaits 
you two! 

Everyone: [Sharp intake of breath in amazement and shock] 

Kant: But to own hfe itseh7 Surely this cannot be ethical or 
morally correct? Where would this end, life itself must be 
beyond the tawdry world of huckstering and profit. 

Linux: Ownership is not friendship, and love is not dependent 
on property rights. I am loved by many, cherished by many and 
have friends all over the world. But none owns me, none can 
control me and all have freedom. 

Gates: [Quietly to Microsoft and the other Multinationals] 
Come quick! This is a den of anarchists and thieves, we must 
warn the King before it is too late, he must arrest and throw 
them into the tower. 

[They leave quietly out of the hack door but are spotted by a 
Mouse who warns the Speaker.] 

The Speaker: Order! Order! I have been warned that there are 
some amongst us, who traitors to the common, seek to join the 
King in disgraceful dictatorship and autocracy. Quick lock the 
doors, here lies sovereignty in the common will of all. 

Everyone: Hear! Hear! 

[The doors are locked.] 

Linux: We should see now, that no matter how much work, or 
technical we think the world is, we cannot ever escape the call 
to the political, regardless of the words of the powerful. 

Slashdot: Technical-Social -Political ! Political-Technical- 

Social! Yes, yes! We see, that both are three, that each is 
needed, one two three. Before we rested on our laurels, and left 
to others to defend the morals. But now we heard, the call to 
fight and in the public we believe right is might! 

A Mouse: And now, we should recognise that we must fight, 
the King and aristocracies to guard our freedom and light. Let 
us form a commonwealth, a commonality of all things, equality, 

53 



fraternity and liberty! Where nobody but all in common can 
own the things. 

Everyone: Hear! Hear! 

The GPL: And so I call that we should write a Declaration of 
the Rights of All. That ideas and concepts shall never be owned 
and free from control and free for all. 

The Speaker: Throw open the Oncomouse's cage, as she is 
released and freedom given so are we! 

[A doorman throws open the Oncomouse cage, to the cheers of 
the ParUament. The Oncomouse looks around in amazement.] 

Everyone: Hear! Hear! 

[Suddenly there was a great knocking at the Door] 

The Speaker: Order! Order! Who disturbs this great 
Parliament? By what right do you dare challenge its rights to 
debate! 

Guards: [From outside door] We come from the King! The 
Sovereignty lies with him, and he dissolves your tatty 
Parliament! Tell us who is in there! 

The Speaker: Order! Order! I have neither eyes to see nor 
mouth to speak, except as Parliament's will decides. And it has 
spoken that you have no rights here. Be gone and tell your so- 
called King, that he will answer to Parliament's pleasure! 

Guards: [A hit unsure of themselves] We have come to take the 
traitors all, to the prison where you'll lie, at the Kings pleasure 
for eternity, and then when he decides you'll fry! 

The Speaker: Then take the King, as you'll soon see his 
sovereignty lies with We. And now our task is clear to call, this 
Parliament declares itself for the good of all. 

Everyone: To arms! To arms! You'll never take us all, through 
lines-of-flight and common cause you'll never win by force! 

Chorus: So all have made the change, 

54 



They see the unfairness that remains, 

Through talk and poUtics we Uve 

Till the end of Sovereigns and all they bring... 

Narrator: The Parliament was resolved and it went into recess. 
To the King was sent the message that there would be no 
control of concepts and ideas and that they would not meet the 
Kings request. To which apoplectic he sent the Army to kill and 
capture the Parliament of Things, but the people rose up to 
defend the Parliament and the King was dragged from his 
palace and sentenced to death (off with his head) and they all 
lived happily ever after. 



The End 



55 



8. What is code? A 
conversation with Deleuze, 
Guattari and code 

— David M. Berry and Jo Pawlik 



The two of US wrote this article together. Since 
each of us was several, there was already quite a 
crowd. We have made use of everything that came 
within range, what was closest as well as farthest 
away. We have been aided, inspired multiplied. [\] 



JP: Code is described as many things: it is a cultural logic, a 
machinic operation or a process that is unfolding. It is becoming 
today's hegemonic metaphor; inspiring quasi-semiotic 
investigations within cultural and artistic practice (e.g. The 
Matrix). No-one leaves before it has set its mark on them... 

DB: Yes, it has become a narrative, a genre, a structural feature 
of contemporary society, an architecture for our technologically 
controlled societies (e.g. Lessig) and a tool of technocracy and 
of capitalism and law (EllulAVinner/Feenberg). It is both 
metaphor and reality, it serves as a translation between different 
discourses and spheres, DNA code, computer code, code as law, 
cultural code, aristocratic code, encrypted code (Latour). 

JP: Like the code to nourish you? Have to feed it something 
too. 

DB: Perhaps. I agree that code appears to be a defining 
discourse of our postmodemity. It offers both explanation and 
saviour, for example, the state as machine, that runs a faulty 
form of code that can be rewritten and re-executed. The 
constitution as a microcode, law as code. Humanity as objects at 
the mercy of an inhuman code. 



56 



JP: True and it gathers together a disturbing discourse of the 
elect. Code as intellectual heights, an aristocratic elect who can 
free information and have a wisdom to transform society 
without the politics, without nations and without politicians. 
Code becomes the lived and the desired. Both a black box and a 
glass box. Hard and unyielding and simultaneously soft and 
malleable. 

DB: Code seems to follow information into a displaced 
subjectivity, perhaps a new and startling subject of history that 
is merely a reflection of the biases, norms and values of the 
coding elite. More concerning, perhaps, code as walls and doors 
of the prisons and workhouses of the 21st Century. Condemned 
to make the amende honorable before the church of capital. 

JP: So, we ask what is code? Not expecting to find answers, but 
rather to raise questions. To survey and map realms that are yet 
to come (AO:5). The key for us lies in code's connectivity, it is a 
semiotic -chain, rhizomatic (rather like a non-hierarchical 
network of nodes) and hence our map must allow for it to be 
interconnected from anything to anything. In this investigation, 
which we know might sometimes be hard to follow, our method 
imitates that outlined by Deleuze and Guattari in Anti-Oedipus 
(2004). It will analyse by decentering it onto other dimensions, 
and other registers (AO:8). We hope that you will view this 
article as a little machine' (AO: 4), itself something to be read 
slowly, or fast, so that you can take from it whatever comes 
your way. It does not ask the question of where code stops and 
the society starts, rather it forms a tracing of the code-society or 
the society -code. 

DB: Dystopian and Utopian, both can cling like Pincher Martin 
to code. Code has its own apocalyptic fictions; crashes and 
bugs, Y2K and corruption. It is a fiction that is becoming a 
literary fiction (Kermode). We wish to stop it becoming a myth, 
by questioning code and asking it uncomfortable questions. But 
by our questioning we do not wish to be considered experts or 
legislators, rather we want to ask again who are the 'Gods' of the 
information age (Heidegger). By drawing code out and 
stretching it out, we hope to make code less mysterious, less an 
'unconcealment that is concealed' (Heidegger). 

JP: Perhaps to ask code and coders to think again about the way 
in which they see the world, to move from objects to things, and 

57 



practice code as poetry (poeisis). Rather than code as ordering 
the world, fixing and overcoding. Code as a craft, 'bringing- 
forth' through a showing or reveahng that is not about turning 
the world into resources to be assembled, and reassembled 
forever. 

DB: And let us not forget the debt that code owes to war and 
government. It has a bloody history, formed from the special 
projects of the cold war, a technological race, that got mixed up 
with the counter-culture but still fights battles on our behalf. He 
laid aside his sabre. And with a smile he took my hand. 



Code as concept 

DB: A stab in the dark. To start neither at the beginning or the 
end, but in the middle: code is pure concept instantiated into the 
languages of machines. Coding is the art of forming, inventing 
and fabricating structures based on these languages. Structures 
that constrain use as well as free. The coder is the friend of the 
code, the potentiality of the code, not merely forming, inventing 
and fabricating code but also desiring. The electric hymn book 
that Happolati invented. With electric letters that shine in the 
dark? 

JP: And what of those non-coders who use code, or rather are 
used by code instead of forming it? Code can enable but it can 
also repress. Deleuze believes that we live in a society of 
control and that code is part 'of the numerical language of 
control' requiring of us passwords, user names, and the 
completion of form fields to either grant or deny access to 
information, goods and services (1990). 

DB: Yes, code becomes the unavoidable boundary around 
which no detour exists in order to participate fully in modern 
life. It is ubiquitous. Formatted by code, harmonised with the 
language of machines, our life history, tastes, preferences and 
personal details become profiles, mailing lists, data and 
ultimately markets. Societies of control regulate their population 
by ensuring their knowing and unknowing participation in the 
marketplace through enforced compatibility with code. Watch 
over this code! Let me see some code! 



JP: But there is no simple code. Code is production and as such 
is a machine. Every piece of code has components and is 
defined by them. It is a multiphcity aUhough not every 
muUiphcity is code. No code is a single component because 
even the first piece of code draws on others. Neither is there 
code possessing all components as this would be chaos. Every 
piece of code has a regular contour defined by the sum of its 
components. The code is whole because it totalises the 
components, but it remains a fragmentary whole. 

DB: Code aborescent. Plato's building agile, object-oriented and 
postmodern codes under the spreading chestnut tree. 

JP: But computers are not the only machines that use code. 
Deleuze believes that everything is a machine, or to be more 
precise every machine is a machine of a machine. By this he 
means that every machine is connected to another by a flow, 
whether this flow is air, information, water, desire etc. which it 
interrupts, uses, converts and then connects with another 
machine. 

DB: I agree that human beings are nothing more than an 
assemblage of several machines linked to other machines, 
though century's worth of history have us duped into thinking 
otherwise. 

JP: But, does every machine have a code built into it which 
determines the nature of its relations with other machines and 
their outputs? How else would we know whether to swallow air, 
suffocate on food or drink sound waves? There is even a social 
machine, whose task it is to code the flows that circulate within 
it. To apportion wealth, to organise production and to record the 
particular constellation of linked up flows that define its mode 
of being. 

DB: Up to this point, code is verging towards the deterministic 
or the programmatic, dependent upon some form of Ur-coder 
who might be synonymous with God, with the Despot, with 
Nature, depending on to whom you attribute the first and last 
words. 

JP: But Deleuze delimits a way of scrambling the codes, of 
flouting the key, which enables a different kind of de/en-coding 
to take place and frees us from a pre -determined input-output, 

59 



a=b matrix. Enter Desire. Enter Creativity. Enter the Schizo. 
Enter capitalism? You show them you have something that is 
really profitable, and then there will be no limits to the 
recognition of your ability. 
Code as Schizo 

DB: Deleuze and Guattari warned us that the Schizo ethic was 
not a revolutionary one, but a way of surviving under capitalism 
by producing fresh desires within the structural limits of 
capitalism. Where will the revolution come from? 

JP: It will be a decoded flow, a 'deterritorialised flow that runs 
too far and cuts too sharply'. D and G hold that art and science 
have a revolutionary potential. Code, like art and science, 
causes increasingly decoded and deterritorialised flows to 
circulate in the socius. To become more complicated, more 
saturated. A few steps away a policeman is observing me; he 
stands in the middle of the street and doesn't pay attention to 
anything else. 

DB: But, code is bifurcated between a conceptual and a 
functional schema, an 'all encompassing wisdom [=code]'. 
Concepts and functions appear as two types of multiplicities or 
varieties whose natures are different. Using the Deluezean 
concept of Demon which indicates, in philosophy as well as 
science, not something that exceeds our possibilities but a 
common kind of these necessary intercessors as respective 
'subjects' of enunciation: the philosophical friend, the rival, the 
idiot, the overman are no less demons that Maxwell's demon or 
than Einstein's or Heisenberg's observers. (WIP: 129). Our eyes 
meet as I lift my head; maybe he had been standing there for 
quite a while just watching me. 

JP: Do you know what time it is? 

HE: Time? Simple Time?... Great time, mad time, quite 
bedeviled time, in which the fun waxes fast and furious, with 
heaven-high leaping and springing and again, of course, a bit 
miserable, very miserable indeed, I not only admit that, I even 
emphasise it, with pride, for it is sitting and fit, such is artist- 
way and artist-nature. 



60 



Code and sense perception 

DB: In code the role of the partial coder is to perceive and to 
experience, although these perceptions and affections might not 
be those of the coder, in the currently accepted sense, but belong 
to the code. Does code interpolate the coder, or only the user? 
Ideal partial observers are the perceptions or sensory affections 
of code itself manifested in functions and 'functives', the code 
crystallised affect. 

JP: Maybe the function in code determines a state of affairs, 
thing or body that actualises the virtual on a plane of reference 
and in a system of co-ordinates, a dimensional classification; the 
concept in code expresses an event that gives consistency to the 
virtual on a plane of immanence and in an ordered form. 

DB: Well, in each case the respective fields of coding find 
themselves marked out by very different entities but that 
nonetheless exhibit a certain analogy in their task: a problem. Is 
this a world-directed perspective'code as an action facing the 
world? 

JP: Does that not consisting in failing to answer a question? In 
adapting, in co-adapting, with a higher taste as problematic 
faculty, are corresponding elements in the process being 
determined? Do we not replicate the chains of equivalence, 
allowing the code, to code, so to speak, how we might 
understand it? 

DB: Coders are writers, and every writer is a sellout. But an 
honest joy /Does itself destroy /For a harlot coy. 

JP: We might ask ourselves the following question: is the 
software coder a scientist? A philosopher? Or an artist? Or a 
schizophrenic? 

AL: For me the only code is that which places an explosive 
device in its package, fabricating a counterfeit currency. Which 
in part the knowing children sang to me. 

Dr. K: This man is mad. There has been for a long time no 
doubt of it, and it is most regrettable that in our circle the 
profession of alienist is not represented. I, as a numismatist, 
feel myself entirely incompetent in this situation. 

61 



DB: For Deleuze, the ascription of these titles exceeds 
determining whether the tools of the trade in question are 
microscopes and test- tubes, cafes and cigarettes, or easels and 
oil-paints. Rather they identify the kind of thinking that each 
group practices. Latour claimed that if you gave him a 
laboratory he could move the world. Maybe prosopopoeia is 
part of the answer, he should ask code what it thinks. 

JP: But not just the kind of thinking, but the kind of problems 
which this thought presupposes, and the nature of the solutions 
that it can provide. To ask under which category the coder 
clicks her mouse is to question whether she is creating concepts 
as opposed to dealing in functives like a scientist, or generating 
percepts and affects like an artist. 

DB: If you're actually going to love technology, you have to 
give up sentimental slop, novels sprinkled with rose water. All 
these stories of efficient, profitable, optimal, functional 
technologies. 

JP: Who said I wanted to love technology? 

DB: The philosopher loves the concept. The artist, the affect. 
Do the coders love the code? 

JP: If we say that code is a concept, summoning into being or 
releasing free software as an event, the coder is cast first and 
foremost as a philosopher. The coder, as philosopher, could 
neither love nor covet her code prior to its arrival. It must take 
her by surprise. For the philosopher, or more specifically the 
conceptual personae through whom concepts come to pass and 
are given voice, (Deleuze does not strictly believe in the 
creativity of an individual ego), Deleuze reserves a privileged 
role in the modern world which is so woefully lacking in 
creation and in resistance to the present. He writes: 'The creation 
of concepts in itself calls for a future form, for a new earth and 
people that do not yet exist' (1994, 108). Deleuze would hope 
this future form would be recognizable by virtue of its 
dislocation from the present. 

DB: If the software coder really is a philosopher, what kind of a 
future is free software summoning and who are the new people 
who might later exist? 

62 



JP: Thanks to computers, we now know that there are only 
differences of degree between matter and texts. In fact, ever 
since a literary happy few started talking about 'textual 
machines' in connection with novels, it has been perfectly 
natural for machines to become texts written by novelists who 
are as brilliant as they are anonymous (Latour). But then is there 
no longer any difference between humans and nonhumans. 

DB: No, but there is no difference between the spirit of 
machines and their matter, either; they are souls through and 
through (Latour). 

JP: But don't the stories tell us that machines are purported to 
be pure, separated from the messy world of the real? Their 
internal world floating in a platonic sphere, eternal and perfect. 
Is the basis of their functioning deep within the casing numbers 
ticking over numbers, overflowing logic registers and memory 
addresses? 

DB: I agree. Logic is often considered the base of code. Logic is 
reductionist not accidentally but essentially and necessarily; it 
wants to turn concepts into functions. In becoming 
propositional, the conceptual idea of code loses all the 
characteristics it possessed as a concept: its endoconsistency 
and its exoconsistency. This is because of a regime of 
independence that has replaced that of inseparability, the code 
has enframed the concept. 



Code as science 

DB: Do you think a real hatred inspires logic's rivalry with, or 
its will to supplant, the concept? Deleuze thought 'it kills the 
concept twice over'. 

JP: The concept is reborn not because it is a scientific function 
and not because it is a logical proposition: it does not belong to 
a discursive system and it does not have a reference. The 
concept shows itself and does nothing but show itself. Concepts 
are really monsters that are reborn from their fragments. 



63 



DB: But how does this relate to the code, and more specificahy 
to free software and free cuUure? Can we say that this is that 
summoning? Can the code save us? 

JP: Free software knows only relations of movement and rest, 
of speed and slowness, between unformed, or relatively 
unformed, elements, molecules or particles borne away by 
tluxes. It knows nothing of subjects but rather singularities 
called events or haecceities. Free software is a machine but a 
machine that has no beginning and no end. It is always in the 
middle, between things. Free software is where things pick up 
speed, a transversal movement, that undermines its banks and 
accelerates in the middle. But that is not to say that capital does 
not attempt to recode it, reterritorialising its flows within the 
circuits of capital. 

DB: A project or a person is here only definable by movements 
and rests, speeds and slowness (longitude) and by affects, 
intensities (latitude). There are no more forms, but cinematic 
relations between unformed elements; there are no more 
subjects but dynamic individuations without subjects, which 
constitute collective assemblages. Nothing develops, but things 
arrive late or in advance, and enter into some assemblage 
according to their compositions of speed. Nothing becomes 
subjective but haecceities take shape according to the 
compositions of non-subjective powers and effects. Maps of 
speeds and intensities (e.g. Sourceforge). 

JP: We have all already encountered this business of speeds and 
slowness: their common quality is to grow from the middle, to 
be always in-between; they have a common imperceptible, like 
the vast slowness of massive Japanese wrestlers, and all of a 
sudden, a decisive gesture so swift that we didn't see it. 

DB: Good code. Bad code. Deleuze asks: For what do private 
property, wealth, commodities, and classes signify'? and 
answers: 'The breakdown of codes' (AO, 218). Capitalism is a 
generalized decoding of flows. It has decoded the worker in 
favour of abstract labour, it has decoded the family, as a means 
of consumption, in favour of interchangeable, faceless 
consumers and has decoded wealth in favour of abstract, 
speculative, merchant capital. In the face of this, it is difficult to 
know if we have too much code or too little and what the 
criteria might be by which we could make qualitative 

64 



distinctions between one type of code and another, such as code 
as concept and code as commodity. 

JP: We could suggest that the schizophrenic code (i.e. the 
schizophrenic coding as a radical politics of desire) could seek 
to de-normalise and de -individualise through a multiplicity of 
new, radical collective arrangements against power. Perhaps a 
radical hermeneutics of code, code as locality and place, a 
dwelling. 

DB: Not all code is a dwelling. Bank systems, facial recognition 
packages, military defense equipment and governmental 
monitoring software is code but not a dwelling. Even so, this 
code is in the domain of dwelling. That domain extends over 
this code and yet is not limited to the dwelling place. The bank 
clerk is at home on the bank network but does not have shelter 
there; the working woman is at home on the code but does not 
have a dwelling place there; the chief engineer is at home in the 
programming environment but does not dwell there. This code 
enframes her. She inhabits them and yet does not dwell in them. 



Code as art 

JP: You are right to distinguish between code as 'challenging- 
forth' (Heidegger) and code that is a 'bringing-forth'. The code 
that is reterritorialised is code that is proprietary and 
instrumental, has itself become a form of 'standing-reserve'. 

DB: So how are we to know when code is a 'bringing-forth'? 
How will we know if it is a tool for conviviality. How will we 
distinguish between the paranoiac and the schizophrenic? 

JP: We know, that the friend or lover of code, as claimant does 
not lack rivals. If each citizen lays claim to something then we 
need to judge the validity of claims. The coder lays claim to the 
code, and the corporation, and the law^yer, who all say, 'I am the 
friend of code'. First it was the computer scientists who 
exclaimed 'This is our concern, we are the scientists!'. Then it 
was the turn of the lawyers, the journalists and the state 
chanting 'Code must be domesticated and nationalised!' Finally 
the most shameful moment came when companies seized 
control of the code themselves 'We are the friends of code, we 
put it in our computers, and we sell it to anyone'. The only code 

65 



is functional and the only concepts are products to be sold. But 
even now we see the lawyers agreeing with the corporations, we 
must control the code, we must regulate the code, the code must 
be paranoiac. 

DB: This is perhaps the vision offered by William Gibson's 
Neuromancer, a dystopian realization of the unchecked power 
of multinational corporations which, despite the efforts of 
outlaw subcultures, monopolize code. Through their creation of 
AI entities code becomes autonomous, it exceeds human 
control. If indeed it makes sense to retain the term human, 
which Gibson pejoratively substitutes with 'meat'. The new 
human-machinic interfaces engendered by software and 
technological development demand the jettisoning of received 
categories of existence as they invent uncanny new ones. 

JP: This is the possibility of code. The code as a war machine. 
Nomadic thought. The code as outsider art, the gay science, 
code as desiring-production, making connections, to ever new 
connections. 

DB: Code can be formed into networks of singularities into 
machines of struggle. As Capital de -territorializes code there is 
the potential through machines to re-territorialize. Through 
transformative constitutive action and network sociality in other 
words the multitude-code can be deterritorializing, it is 
multiplicity and becoming, it is an event. Code is becoming 
nomadic. 

JP: This nomadic code upsets and exceeds the criteria of 
representational transparency. According to Jean Baudrillard, 
the omnipresence of code in the West — DNA, binary, digital — 
enables the production of copies for which there are no 
originals. Unsecured and cut adrift from the 'reality' which 
representation has for centuries prided itself on mirroring, we 
are now in the age of simulation. The depiction of code presents 
several difficulties for writers, who, in seeking to negotiate the 
new technological landscape, must somehow bend the 
representational medium of language and the linear process of 
reading to accommodate the proliferating ontological and 
spatio-temporal relations that code affords. 

DB: This tension is as palpable in Gibson's efforts to render 
cyberspace in prose (he first coined the term in Neuromancer) 

66 



as it is on the book cover, where the flat 2D picture struggles to 
convey the multi-dimensional possibilities of the matrix. The 
aesthetics of simulation, the poetics of cyberspace and of 
hyperreality are, we might say, still under construction. 

JP: Perhaps code precludes artistic production as we know it. 
Until the artist creates code and dispenses with representational 
media altogether, is it possible that her work will contribute 
only impoverished, obsolete versions of the age of simulation? 

DB: Artists have responded to 'code' as both form and content. 
As form, we might also think of code as 'genre', the parodying 
of which has become a staple in the postmodern canon. Films 
such as 'The Scream' series, 'The Simpsons', or 'Austin Powers'; 
tlaunt and then subvert the generic codes upon which the 
production and interpretation of meaning depends. More 
drastically, Paul Auster sets his "New York Trilogy' in an 
epistemo logical dystopia in which the world does not yield to 
rational comprehension, as the genre of detective fiction 
traditionally demands. If clues are totally indistinguishable from 
(co)incidental detail, how can the detective guarantee a 
resolution, how can order be restored? As Auster emphasizes, 
generic codes and aesthetic form underwrite ideological 
assumptions and can be described as the products of specific 
social relations. 

JP: And what of code as content? Like the 'Matrix'. Here is a 
film which has latched onto the concept of code and also its 
discussion in contemporary philosophy, almost smugly 
displaying its dexterity in handling both. 

DB: Or 'I V Huckabees' with its unfolding of a kind of 
existential code that underlies human reality. Are our 
interpretations shifting to an almost instrumental understanding 
of code as a form of weak structuralism? Philosophy as mere 
code, to be written, edited and improved, turned into myth so 
that our societies can run smoothly. 

JP: The hacker stands starkly here. If code can be hacked, then 
perhaps we should drop a monkey-wrench in the machine, or 
sugar in the petrol tank of code? Can the philosopher be a model 
for the hacker or the hacker for the philosopher? Or perhaps the 
hacker, with the concentrations on the smooth, efficient hacks, 
might not be the best model. Perhaps the cracker is a better 

67 



model for the philosophy of the future. Submerged, 
unpredictable and radically decentred. Outlaw and outlawed. 

DB: Perhaps. But then perhaps we must also be careful of the 
fictions that we both read and write. And keep the radical 
potentialities of code and philosophy free. 

Wet with fever and fatigue we can now look toward the shore 
and say goodbye to where the windows shone so brightly. 



Notes 

[1] We were, in fact, at least four, and we think you can guess who the others 
were. 



68 



9. The Politics of the Libre 
Commons 

— David M. Berry and Giles Moss 



Forward 

Interest and support for all things 'libre,' 'free,' 'remixed' or 
'open-source' continues to grow and deepen. Contestation over 
the direction and goals of libre culture has followed in the wake. 
Some people may not welcome this development, believing that 
things are best off left as they are. They fear that internal 
critique and contestation is a perilous force that might just 
fragment libre culture into so many lonely (if not war-like) 
factions. Be this as it may, we argue that contestation and the 
politicisation of libre culture is a positive development, a 
healthy by-product of a growing and maturing movement. 
Along with risks, we suggest, come possibilities. 

We will propose here a way to consolidate the power 
and realise the promise of libre culture through the creation of a 
radical democratic project (Laclau and Mouffe, 2001). Such a 
project is premised on the political as much as anything else, 
where the political is understood in its specificity, as a field of 
agonistic contestation and circuitous re-articulation. Radical 
democracy offers a positive vision for libre culture, and a 
constructive response to the question of how libre culture can 
deepen and extend itself. It is about a multiplicity of singular 
networks of struggle operating on the terrain of civil society 
who may seek strategic alliances and articulate as an active 
political subject under a 'common' radical democratic (counter- 
hegemonic) project. This stretches libre culture out in myriad 
directions, to form multiple points of passage with other 
singularities that are now struggling against various power 
asymmetries and injustices. 

In this chapter, then, we want to introduce libre culture 
to radical democracy[l]. We hope that a meeting between the 
two will lead to a mutually beneficial engagement. This hope 
and vision goes under the name of the libre commons to 
differentiate it from other groups and proposals (e.g. Creative 

69 



Commons, Free Culture). Libre culture is presently being 
reduced to economic, moral, technological or legal logics, all of 
which (albeit in different ways) claim to circumvent the political 
and move us along effortlessly in straight, non-political lines 
(Berry, 2004). In contrast, lihre commons makes room for 
plurality, dissensus and curvature — the very basis of the 
political. 

In our view, thinking about libre culture with radical 
democracy is long overdue. True, Micheal Hardt and Antonio 
Negri have recently penned: 'Our approach to understanding the 
democracy of the multitude ... is an open-source society, that 
is, a society whose source code is revealed so that we can all 
work collaboratively to solve its bugs and create new, better 
social programmes' (Hardt and Negri, 2004). We concur, 
needless to say, with the sentiment. Libre culture's democratic 
effects could be far-reaching. But we question the now 
prevalent idea that democracy is an essential part of libre culture 
and something that will automatically flow from it. Libre 
culture can be understood in myriad ways and move in various 
directions. Not all of these directions are particularly 
democratic. Insofar as libre culture eschews the political, we 
argue, it is not likely to be very democratic in its effects at all. 
In the light of this, it is unclear to us what Hardt and Negri 
actually mean when they invoke the term "open-source." For 
one thing, their delphic usage ignores a number of significant 
internal differences in libre culture between, say. Free Software, 
Open Source and the Creative Commons. And it is for this 
reason that we here wish to defend an alternative radical 
democratic position. This, in short, is the idea of the libre 
commons. 

We will differentiate between different parts of libre 
culture, beginning by discussing some pre-dominant discourses 
that now shape the movement: Creative Commons/Open-source 
movement (Section One) Free Software movement (and by 
proxy the Free Culture groups) (Section Two). We will then 
advocate our own position (Section Three), and outline what we 
call the 'the libre commons license' (Section Four). 



Section One: The Creative Commons 

By all accounts, the Creative Commons project has been a great 
success. It has generated interest in the issue of intellectual 
property and the erosion of the 'public domain,' and it has 

70 



contributed to re-thinking the role of the 'commons' in the 
'information age' (Lessig, 2005). It has provided institutional, 
practical and legal support for individuals and groups wishing to 
experiment and communicate with culture more freely, and a 
growing number of intellectual and artistic workers are now 
enrolling in the Creative Commons network and exercising the 
agency and freedom it has made available. 

Like others before him, Lawrence Lessig bemoans the 
loss of a realm of freely shared culture. He writes about the 
colonisation of the public domain brought about by extensions 
in intellectual property law and the closing down of the 
technical architecture of the Internet. He rightly identifies the 
way in which global media corporations have lobbied to extend 
the terms of copyright law so that they can continue to profit 
from their ownership of creative works. He also identifies the 
way in which private interests are simultaneously encoding and 
enrolling digital technologies in order to support their control of 
artistic and intellectual creativity. But whereas others who 
problematise these trends turn to the political, the legal 
professor's penchant is to turn to the field of law and lawyers. In 
the creation of the Creative Commons there is a technical 
attempt to (re-)introduce a commons by instituting a farrago of 
new legal licences in the existing system of exploitative 
copyright restrictions. This is the constructive moment of the 
so-called 'Creative' Commons. 

For us, Lessig' s particular understanding of the world, 
and his desire to strike a balanced bargain between the public 
and private that follows from this, appear naive and outmoded 
in the age of late capitalism. We follow the political economists 
instead, and trace the associations they draw. Capital is 
continually rendering culture and communication private, 
subject to property rights and the horror of commercial 
exploitation and beautification. When immaterial labour is 
hegemonic, the relationship codified in intellectual property 
between the 'public' and 'private,' between labour and capital, 
becomes a crucial locus of power and profit. And it is quite 
natural that private interests would want to protect and extend 
this profit base at all costs. Their existence depends on it. If 
libre culture or the Creative Commons threatens this profit base 
in any way, wars of manoeuvre and position will ensue, where 
corporations and the state will set out either to crush or co-opt. 

It has been argued that having no constitution-based 
limit, or clear set of values to guide the organisation. Creative 
Commons is able to expand and extend the definition of 'free 

71 



culture' beyond any reasonable criteria. This leads to an 
unchecked bureaucratic rationality that seeks to maximise its 
licensing schemes to all parts of creative endeavour, form 
partnerships with corporations without regard to their stance 
(e.g., Microsoft's recent US $25,000 donation to CC) and to 
happily manufacture new licences that increasingly look 
anachronistic to the free culture project (e.g. non-commercial 
clauses, sampling licenses and the balkanisation of the 
tricontinental countries in a 'developing nation' license). 

The paramount claim of Lessig's prognosis about the 
fate of culture is that we will be unable to create new culture 
when the resources of that culture are owned and controlled by a 
limited number of private corporations and individuals. As far 
as it goes, this argument has appeal. But it also comes packaged 
with a miserable, cramped view of culture. Culture is here 
viewed as a resource or, in Heidegger's terms, 'standing 
reserve.' Culture is valued only in terms of its worth for 
building something new. Lessig's recent move to the 
catchphrase 'Remix Culture' seems to confirm this outlook. 
Where culture is only standing reserve it can be owned and 
controlled and ethical questions over ownership can be sidelined 
by claims to leaving things to the 'invisible hand of the market.' 
The view of culture presented here is entirely consistent with 
the creative industry's continual transformation of the flow of 
culture, communication and meaning into decontextualised 
information and property. 

As a result, the Creative Commons network provides 
only a simulacrum of a commons. It is a commons without 
commonalty. Under the name of the commons, we actually have 
a privatised, individuated and dispersed collection of objects 
and resources that subsist in a technical-legal space of confusing 
and differential legal restrictions, ownership rights and 
permissions. The Creative Commons network might enable 
sharing of culture goods and resources amongst possessive 
individuals and groups. But these goods are neither really 
shared in common, nor owned in common, nor accountable to 
the common itself. It is left to the whims of private individuals 
and groups to permit reuse. They pick and choose to draw on 
the commons and the freedoms and agency it confers when and 
where they like. 

We might say, following Gilles Deleuze, that the 
Creative Commons licensing model acts as a 'plan(e) of 
organization.' It places a grid over culture, communication and 
creativity, cutting it into discrete pieces, each of which have 

72 



their own distinct licence, rights and permissions defined by the 
copyright holder who 'owns' the work. The complexity of 
licences and combinations of licences in works has therefore 
expanded exponentially. This plane of organisation ensure that 
legal licences and lawyers remain key nodal and obligatory 
passage points within the Creative Commons network, and 
thereby constitute blockages in the flow of creativity. But what 
is happening is that the ethical practice of sharing 
communication and culture is now being conflated with a legal 
regime that seeks bureaucratically to enforce the same result 
through comprehensively drafted and dense legalese. 

Through copyright the Creative Commons attempts to 
construct a commons within the realm of private ownership. 
The result is not, dare we say it, a commons at all. The 
commons are formed through commonalty and common rights, 
resistant to any mechanisms of privatisation, whether those of 
the Creative Commons or not. Without commonalty, without 
the common substrate through which singularities act, live and 
relate, there could be no commons at all. 



Section Two: The Free Commons 

At least Richard Stallman and his ingenious GNU General 
Public License (GPL) is honest in claiming to be an ethical 
rather than purely legal force. The GNU GPL has tenacity not 
due to its legal form alone. The GPL is based on a network of 
ethical practices that continually (re-)produce its meaning and 
form. The commons is always more than a formal legal 
construct; the commons is based on commonalty. 

Most of us share, despite our other differences, a hope 
that the project of libre culture will deepen and extend. But the 
salient question is how, by which machinery, and in which 
direction. In our view, the creative commons has widened itself 
out in such a way that it now bears little resemblance to the 
underlying arguments that should be made for libre culture. By 
opening itself up to a broad membership, especially by courting 
private industry and property, it is following an economic 
market logic that compromises libre culture and encourages 
multinational corporations to take centre stage. It has taken the 
same path as 'open-source.' (Eric Raymond, of course, 
distinguished the term 'open source' from that of 'free software' 
because the latter term was unappealing to private industry.) 



73 



This results in inevitable dilemmas for libre culture in terms of 
co-option and compromise. 

By what other means can libre culture deepen and 
extend itself^ Well, we were interested to read the intervention 
by Hill (2005). Thankfully, this chapter moved away from the 
narrow economic logic of the creative commons and open 
source. Hill has another agenda, but one that is no less familiar 
to those versed in debates over libre culture. For him, the 
creative commons had lost touch with a moral set of principles 
that allowed us to distinguish between (what he termed) 'right' 
and 'wrong.' Some of Hill's criticisms of the Creative 
Commons tally with our previous remarks. But we are 
nonetheless skeptical of his proposed alternative. What he does, 
in effect, is displace the problem with the creative commons to a 
different level. Rather than turn to law or economics, he turns to 
the order of morality. By an over-hasty fetishisation of 
technology, and the naive acceptance of human rights in a 
metaphysical sense, there is a lack of grounding in real concrete 
political action. His arguments are again anti -political. They 
attempt to close down the space for contestation, too, but this 
time in the name of an ultimate and invariable 'good' or 'right.' 

This indicates a more general problem with many of the 
arguments of the Free Software Movement: they are 
overwhelmingly made within a moral register. Claims to 
authority are made by reference to a priori human rights 
divorced from the political realm. Decisions are made between 
"right" and "wrong" (note the quite deliberate scare quotes) on 
the basis of a supposedly shared morality. There is then no 
ground for further discussion, as the terms of the decision have 
already been set a priori. This has dangerous consequences. It 
closes down possibilities; it prevents alternative articulations. 
They are all variously labeled dangerous, evil or wrong. 
Counter-arguments can be neatly ignored and an ostensible 
moral consensus within the free culture 'community' 
maintained. We have assertions made to a 'right to...,' not 
political claims to struggle to bring into effect these rights and 
liberties. The discourse of rights, used in such a way, does not 
encourage political thinking. Instead, it tends to close down 
debate to a simplistic friend/enemy binary. 



74 



Section Three: The Libre Commons 

The alternative we want to suggest to broadening and extending 
libre culture is the radical democratic project of the libre 
commons. We believe that a political approach should be sought 
that channels dissent within the movement of libre culture 
towards a vibrant political space of agonistic debate, rather than 
an antagonistic friend/enemy relation. Our position is that no 
movement can remain legitimate without a political component; 
that is, without realising the importance of the struggle of 
groups asserting and contesting their agonistic positions through 
a political process to reach a decision. This is not a decision to 
be taken by consensus. Moral consensus merely invalidates the 
political as it does not allow for opinions to fall outside of its 
boundaries (Mouffe, 2005). When they do, and they will do, 
they are illegitimate or ignored as 'foe.' We argue that the very 
rights that libre culture movements are calling for should be 
substantiated through political democratic means and agonistic 
debate. 

This offers a different way for libre culture to broaden 
itself out and deepen. But this approach is no less productive 
and constructive than any other. Indeed, we believe it to be 
more so. It is about a multiplicity of singular networks of 
struggle operating on the terrain of civil society. These networks 
can seek alliance and articulate as an active political subject 
under a 'common' and counter-hegemonic radical democratic 
project. The common that they articulate under is an 'empty 
place of power' and is therefore truly democratic. It is 
something to be articulated and re -articulated, made and re- 
made, by political means. It is not reduced to (possessive 
individualist) economic or (consensus-based) moral 
assumptions. It is vision where libre culture connects and finds 
points of passage with other singularities (machines of struggle) 
who are coming up against various other power asymmetries. 

Strategic alliances can here be drawn through political 
means against the unremitting exploitation of the 'common' 
pool of immaterial labour. Which is to say, it is about time that 
libre culture meaningfully engaged with various other struggles 
against the commodification of knowledge, as they are 
expressed, for example, in terms of the pirating of native 
knowledge, environmentalism, GM foods, welfare rights, drug 
patenting, and worker's rights and struggle more generally. This 
will require an articulation of the dangers and threats from 
commodification from knowledge expressed in terms that can 

75 



be valued and understood by a broader constituency. As libre 
culture becomes more inclusive, acquiring new members, allies 
and connections, it grows more political. It clarifies, with ever- 
greater sophistication, the various causes of the complaint, and 
what is needed to remedy it. It is no longer good enough to limit 
the demands to a technical concern for computer programming 
or the freedom to make music. Rather, these issues flow out 
across a number of different planes. There is a need to build 
alliances across these different struggles. This may well involve 
the uncomfortable truth that a cozy moral consensus is not 
reached. But political alliances can be drawn and partial 
closures fixed under the common, as a counter-hegemonic 
project (Laclau and Mouffe, 2001). 

Fragmentation and contestation, rather than being seen 
as a weakness, is a positive political moment. Through agonistic 
debate there is the possibility for the development of a multi- 
perspectival approach to instantiating a new form of commons 
for the twenty-first century. Debate is never closed absolutely, 
for there is never a full reconciliation. There is only a temporary 
hegemonic closure which can continue to be countered or 
rearticulated. One condition of this is through the development 
of 'the common' as the empty signifier and place of power 
around which numerous diverse groups can democratically 
mobilise. The common is to be articulated through the creation 
of alliances between individuals and groups (i.e., singular 
machines of struggle) formed through political dialogue and 
action. 



Libre Commons 'Licences ' 

Up to this point we have been oddly silent on law. Somehow or 
other we have got a fair way through a chapter on libre culture 
without really mentioning law directly. Throughout this chapter, 
we have argued along with radical democracy for a turn away 
from the anti -political language of economics, technology and 
morality. This means that legal rights understood as a priori 
human rights would fall foul, too, since they presuppose the (all 
too Western and imperialistic) idea of a universal moral 
consensus. We reject the ideas of a universal human nature, of a 
universal canon of rationality, as well as possibilities of a 
universal condition of truth. But rejecting the notion of human 
rights as given or universal does not mean that do not value 

76 



rights per se. Quite the contrary. They can be extremely useful 
strategic devices in the political field. 

We would also support other measures that pertain to 
legal rights. "Why not have a new legislative agenda for a 
'global commons'/Let's also prevent the world-wide drift to 
unitary (i.e., U.S.) intellectual property rights." Like you, we 
want all this and more from the law. But even so, we do not 
forget that it is only through political struggle that rights are 
constructed, invested with meaning and given any force. Yes, 
being political can be arduous and frustrating; politics often 
moves circuitously, rather than in a straight line. Be this as it 
may, rights are constructed not given, they are the result of 
political struggle, not assertions of moral orders. There is no 
way to bypass politics. There is no such thing as a priori human 
rights, just legal promises that we must continually ensure our 
fulfilled for ourselves and for our friends also. We need, in sum, 
to always re-articulate rights as democratic and political rights, 
rather than viewing them as given, universal or reducing them to 
an individualist framework. 

These are the grounds on which we have introduced the 
Libre Commons licences into the ether, including the res 
communes and the res divini juris licences. Let's be clear: these 
"licences" are politic -democratic devices. We do not claim that 
they have legal authority. Indeed, our non-legal usage of the 
term licence has upset some law^yers and the like. They have 
lectured to us that our use of the term "licence" is 'wrong,' 
'incorrect' and 'contradictory.' It is not surprising that those, 
who retain power and status by claiming to speak 'correctly' 
and with 'rectitude' on other's behalf, would fear polysemy and 
tlat-out deny our capacity to think or speak otherwise. It is not 
surprising that those who move in anti-political worlds of 
straight lines would want to deny our political capacity to 
contest and multiply meanings. 

We want, in contrast, to here be a little more licentious 
with the word licence than the lawyers allow. For those wonks 
and purists of etymology, with an Oxford English Dictionary at 
the ready, let us say that for the purposes of the libre commons 
we are drawing on other connotations of the term. We don't 
take licence to mean legal permission. Closer to our meaning of 
'licence' would be 'to license' as in 'poetic license,' as in a 
poetics of knowledge and politics. The meanings proliferate 
further: 'liberty of action,' 'abuse of freedom,' 'licentiousness,' 
'disregard of proprietary,' 'irregularity,' 'deviation from the 



77 



norm' and so on. In any case, let us turn to consider the poetic 
license of the hbre commons more directly. 



Libre Commons Res Communes Licence 

The commons is that which is shared in common with others 
and the Libre Commons Res Communes Licence seeks to 
underline that definition. A commons can be a resource, such as 
land or water, that members of a "community" own and share. 
The commons has traditionally been limited to a local 
community right and to a physical resource such as a forest. But 
it has also been used to refer to the space of intellectual thought 
-an 'ideas commons,' an 'innovation commons,' an 'intellectual 
commons,' a 'digital commons,' 'immaterial commons' and 
inevitably an 'e-commons,' 'the public domain' or 'Intellectual 
Space.' The Libre Commons Res Communes Licence commits 
work that is inscribed with it to a shared common that all can 
draw from and reuse. 

We are, to be clear, using the concept of the commons 
in an inclusive and positive sense. The commons is shared in 
common between us (i.e., positive in being 'owned' by us all) 
and inclusive in that we are all included in being able to use the 
commons (i.e., inclusive in as much as it includes the human 
race as a whole). This differs from negative conceptions of 
'community' relating to the commons, where the commons is an 
unowned space, ripe for appropriation and privatisation by 
anyone (i.e., the justification used by corporations for the 
appropriation of common land). 



Libre Commons Res Divini Juris Licence 

In this case, the Res Divini Juris commons is one that lies 
beyond a notion of human 'ownership.' Instead, due to its 
sacredness, there should be no attempt to commodify or 
privatise. We can think here of the sanctity of human life, the 
human genome or the great knowledge and literature passed 
onto us from previous thinkers. Of course, we are aware that 
Res Divini Juris might insinuate a theological justification for 
this position, however although inspired from Roman Law 
definitions of theological artifacts, we would like to link the 
concept to a radical democratic definition of positive 
community rights. That is, that at root is a humanist notion of a 

78 



shared human capacity for love, such that although we might 
exploit what we own, we will defend what we love. Through a 
constant politicisation, we would hope that this 'licence' would 
never become 'fixed,' instead it is always open to political 
contestation and debate. Indeed that is the very terms of its 
definition and through constitutive action it remains a strictly 
political space. 



Res Communes Licence 

The Res Communes license is designed to reject a state- 
centred legal construct of a commons (or commons without 
commonalty) in order to concentrate on creating a common 
which is shared between us in collective practices (a 
commons with commonalty). The 'Commune' or the 
'Commonalty' originally meant 'the people of the whole 
realm' or 'all the King's subjects' as opposed to the King, the 
Nobles or the 'Commons' in Parliament. We here refer to the 
commonalty to refer to the global multitude, the people of the 
whole world. 

1. This work is outside of all legal jurisdictions and 
takes its force and action from the constituent radical 
democratic practices of the global multitude against 
the logic of capital. 

2. All work that is so inscribed should bear the text '(L) 
<year> Libre Commons Res Communes License.' 

3. As a user of this license the work is available to be 
shared and used as part of a common creative 
substrate that is shared between us. 



79 



Res Divini Juris Licence 

The Res Divini Juris license is intended to raise awareness of 
the condition of possibihty for sacred spaces, and equally 
highlights the importance of contestation and debate where 
matters of public importance (i.e. the common things) are 
discussed as a political project. What is endangered under 
advanced capitalism is a source of resistance. Treating 
everything as resources makes possible endless 
disaggregation, redistribution, and re-aggregation for its own 
sake. This can be seen as a period of de-industrialisation and 
growth in the communicational and semiotic as generators of 
surplus value. 

1. By using this license you are agreeing to allow your 
work to be shared as a step on the path of revealing. 
Within the realm of the gods, the work will 
contribute to a shared new world of collective 
practices and networks of singularities operating 
within a non-instrumental and communal life. 

2. All work that is so inscribed should bear the text '(L) 
<year> Libre Commons Res Divini Juris License.' 

3. This license operates under a permanent state of 
exception. It is a result of radical democratic 
practices beyond the state. Users of the license are 
committed to political action and social struggle. 



Section Four: Coda 

As we've already suggested, the commons is an ethical and not 
just a legal matter. We underscore the point. The commons rests 
on commonalty, on ethical practices that emerge rhizomatically 
through the actions, experiences and relations of decentralised 
individuals and groups, such as the free/libre and open-source 
movement. For this reason, libre culture is far more than just a 
protest movement. It is not only reactive; it is productive. It 
creates new forms of life through its practices. It creates new 
possibilities. Yet, in our view, there has to be a political 
dimension to libre culture as well. This expresses itself through 
political imagining, action and a broader struggle for true 
democracy. And, as such, it is important to recognise the 
damage that could be done to libre culture by those 
spokespeople who seek to depoliticise it. In the world in which 
we find ourselves, political awareness, resistance and struggle 

80 



are essential in order to defend the idea and practice of a 
creative field of concepts and ideas that are free from ownership 
— to stand up, that is, for the commons and commonalty. It is to 
the political struggle of libre culture and the commons that we 
finally turn. 

We began by saying that we hoped a meeting between 
libre culture and radical democracy would lead to a mutually 
beneficial engagement. The struggle for the libre commons can, 
as we have argued throughout, form the basis for a 'common' 
radical democratic project. But to achieve this, radical 
democracy needs to engage with libre culture as much as the 
other way around. So what does thinking about radical 
democracy along with libre culture mean? Well, this is another 
topic, another intervention, for another time. A lot could be said, 
and needs to be said, but let us conclude with one thing that 
libre culture might say to radical democracy. 
As we have argued above, radical democracy underlines the 
centrality and specificity of the political: that is, agonistic 
debate and contestation. Relentlessly, radical democracy keeps 
saying to libre culture: "Don't forget the political by reducing 
everything to straight lines/the only way to protect our rights 
and liberties is by acting politically." But then libre culture 
might say, "Fair enough, I accept that I have to act politically 
and that democratic rights are important/But where does all this 
political contestation that you talk of take place?/lVIany of the 
old 'public places' have been privatised, have fallen into 
disrepair or were just plain miserable/ You' re just not being 
practical! /How are we to construct public-political spaces 
adequate to our time, or much better, how are we to construct 
untimely spaces, adequate for a possible time to come?" 

With radical democracy, we stress the need for plural 
passage points, for multiplying the forms and modes of 
democratic agency and subjectivity available in the present. We 
favor heterogeneity — multiple assemblages of humans and 
non-humans. We question, to be sure, the liberal idea of a 
single, homogenous public. This is for the same reason that we 
have questioned an overly singular and concrete sense of libre 
culture, and the idea that it can move in straight lines. 
Meanwhile, however, thinking about radical democracy along 
with libre culture, gives us reason to look at this through a 
different optic. This is an optic whose focus has been sharpened 
through the struggle against the intellectual property regime. 
Postmodern capitalism, whose chief expressions are the market 
and the commodification of immaterial labour through 



intellectual property, brings an endless spinning off and 
proliferation of the seductively 'new' or 'novel' (Lazzarato, 
1996). On the surface there seems to be the continuous 
reproduction and valorisation of multiple passage points and 
sites of power. But then as soon as they are produced these 
passage points are devalued with the next upgrade, the next 
conceit, the next chance for profit, by in-built obsolescence and 
patents that are in the danger running out. 

Hannah Arendt, in The Human Condition, was clear on 
the importance of the objectivity or thing -character of the world 
and particularly public space. Along with Arendt, we might say 
not only does libre culture provide the possibility for 
widespread experimentation with public socio-technical space, 
it also ensures that public spaces can (if we want them to) have 
a relative durability and stability. Common ownership is the 
basis from which socio-technical space can be protected, and 
the stability and durability necessary to democratic engagement 
and agency be ensured (Arendt, 1998). Libre culture, to put it 
bluntly, puts these decisions in public and democratic hands. 

Libre Commons licences carry the hope that they can be 
both a way of rethinking the commons, beyond narrow 
conceptions of public and private ownership, and also contribute 
to a stability of creativity, a place where things may be placed 
outside of the 'system of needs,' with its rampant exploitation 
and reduction of all to profit. That this space can become re- 
thought as a space of the 'common-wealth,' that is, that all may 
have access to use the 'common things' and productively 
contribute to the common good. This, of course, is but one more 
expression of libre culture's long overdue political calling. 

Where is the politics of libre culture to be found? The 
answer: at numerous levels. Political struggle will no doubt be 
orientated towards the nation state (for example, as O' Sullivan 
[2005] argues). For the time being at least, nation states are 
obligatory passage points that retain a privileged position in 
upholding and enforcing law. But it cannot remain there alone. 
The commonalty of creativity shows little regard for national 
boundaries and, of course, neither does the global reach of the 
profiteers from the creativity and media industry. Creativity is at 
once too small and too large. Political action and the struggle 
for true democracy will have to also be aimed simultaneously at 
local and global levels. For the latter, we might envisage a treaty 
obligation through measures such as preventing the 
commodification of human DNA and life itself. Or a UN 
protectorate to defend the sanctity of ideas and concepts. We 

82 



might picture something akin to Bruno Latour's 'Parhament of 
Things,' a space where not just the human is represented, but all 
of life has a defender, all of life has a voice (Latour, 1993). 

Law is a juridico -legal grid placed on social life. This 
grid is upheld and enforced by a network of states and other 
forces of governance and governmentality. Reliance on law and 
the state makes the legal licences of the Creative Commons (or 
other legal versions of the commons for that matter) vulnerable 
and precarious. We cannot be sure, as yet, how Creative 
Commons licences will stand up in legal practice for they have 
not been properly tested. But there is one thing of which we can 
be relatively sure. In principle, we might all be equal in the eyes 
of law. In principle, the ladder of the law might not have a top 
or a bottom. But, in practice, economic power matters. We 
know that law and the state are not immune to economic 
persuasion, to lobbying, to favours and so forth. And, because 
of this, the commons remains subject to the threat and 
corruption of privatisation and commodification. 

We do not want to suggest by this that all legal and 
public rights, including the protection of the commons by the 
state or global institutions such as the UN, are worthless. This 
would be a perversion of our position. What we would stress is 
that such rights originate with the people through political 
struggle, not with legislators or legal professors setting them 
down on pieces of paper. And if these rights are to be 
maintained, if a commons is to be instantiated and protected, 
there is a need for political awareness, for political action, for 
democracy. Which is to say, any attempt to impair commonalty 
and common rights for concepts and ideas must meet resistance. 
We need political awareness and struggle, not lawyers 
exercising their legal vernacular and skills on complicated 
licences, court cases and precedents. We hope therefore, that 
our intervention will open up the question of licences and the 
commons for greater debate and contestation, and encourage 
more critical reflection on the numerous licensing schemes that 
have emerged recently. 

Notes 

[1] Our understanding of radical democracy follows more-or-less the various 
writings of Eamesto Laclau and Chantel Mouffe: it is relational rather thmi 
essentialist, stresses the agonistic nature of the political and is radical as in far- 
reaching. 



83 



10. Free and Open-Source 
Software: Opening and 
Democratising e- 
Government's Black Box 



David M. Berry and Giles Moss 



Introduction 

E-government is at an embryonic stage of development where 
significant decisions over the apphcation of technology in 
government are being considered.^ One choice facing 
governments is whether they choose to adopt proprietary or 
non-proprietary software. The 'standard' approach to software 
development is 'proprietary' (or 'closed')," where intellectual 
property is enclosed and protected within well-defined 
organisational boundaries. But an open, 'non-proprietary' 
approach to software development has recently received public 
attention and a greater share of the software market, mainly due 
to the Free Software and Open Source movements. The 
increased availability of non-proprietary software has provided 



^ In this chapter, 'e-govemment' refers to the use of ICT to support 
government processes, which is something conventionally justified in relation 
to increased access and/or efficiency. 'e-Democracy' (i.e., online voting, 
consultation, and participation) brings an additional requirement to deepen 
and/or widen political participation. The thesis we introduce about the 
democratisation of e-government processes extends beyond the technical 
requirements of democratic processes into all aspects of government 
technology usage, from the use of transparent democratic processes to check 
tax assessments to auditing the code managing voting systems. 
" We use the term 'proprietary' analytically in this chapter. We include both 
( 1 ) computer software produced by private actors (e.g. individuals or 
corporations); and (2) code produced within public institutions (e.g., 
government departments). This is because in neither case is the source code 
released to the public or supported by open development processes. The term 
proprietary is used by the Free Software Foundation to describe software that 
is not 'free' software (i.e., lihre). They use the term to refer to all software not 
in the public domain. 
84 



a viable alternative for a number of organisations. This includes 
governments, who are now assessing the pros and cons of non- 
proprietary software and are considering policies to encourage 
or even mandate its use. 

Recent commentators, meanwhile, have suggested that 
the open and collaborative processes characteristic of free and 
open-source software development could contribute to 
democratising technology in public organisations (Chadwick 
2004; Scacchi 2002). Alongside methods of socio-technical and 
participatory design, non-proprietary software development may 
offer a way to increase public participation in technical design 
and contribute to the project of democratising technology 
(Feenberg 2002). In this chapter we assess this idea from a 
constructionist standpoint, informed by a social construction of 
technology perspective and discourse theory in political analysis 
(Hoff, 2000; Laclau and Mouffe, 2001). Through this optic, the 
democratic 'effects' of adopting non-proprietary software are 
not inherent to the software itself. They are contingent on how 
non-proprietary software development is discursively 
represented and constituted as it is 'translated' into e- 
govemment systems. 

This chapter first examines the discourses surrounding 
the production of computer code in the Free Software and Open 
Source movements. Section one locates a key discursive 
struggle over non-proprietary software production between 
discourses of ethics and freedom, on the one hand, and 
discourses of neo-liberalism and technical efficiency, on the 
other. Whereas the latter position depoliticises the production of 
code, the former holds the potential to open technical practice to 
public evaluation and participation. However, as we argue in 
section two, official government discourse over the merits of 
non-proprietary software has been pre-occupied with cost- 
effectiveness, technical efficiency and security. While 



^ Most of the software that does important things in government, such as 
computing taxes or working out child benefits, is owned and controlled by a 
public institution that would not generally publish the source code. There 
have, however, been recent moves to outsource the processing of data via 
commercial proprietary corporations such as EDS. Either way, we will M^gue 
that a democratisation via non-proprietary software might encourage greater 
accountability, with public institutions knowing that they might be subject to 
external review and challenge. 

"^ In contrast to conventional conceptions of knowledge transfer as a 
unidirectional process of 'diffusion', the concept of 'trmislation' depicts the 
introduction of a new object as an active and reciprocal process where both the 
new and the existing mutually constitute one another. 

85 



discourses of neo-liberalism and technical efficiency have been 
employed, discourses of ethics and freedom have not. The result 
is that the democratic ramifications that non-proprietary 
software production might be represented as having are 
downplayed and obscured. We conclude that the translation of 
non-proprietary software into government is unlikely to affect 
existing power relations and asymmetries significantly; in all 
possibility it will bring more 'politics as usual' rather than 
democratisation. 

None the less, we maintain that making available new 
forms of democratic subject position in the technologies and 
practices of e-government is a core objective for theorists and 
practitioners of democracy (Mouffe, 2001). We agree, 
moreover, with Andrew Chadwick's (2004) provisional claim 
that free and open source software might offer one path by 
which e-democracy can be brought back in to the e-government 
agenda. From the perspective of radical democracy, the final 
section of this chapter will tlesh out an alternative, value-based 
discourse surrounding non-proprietary software, and envisage 
circumstances in which non-proprietary software might 
contribute to opening up and democratising the e-government 
black box. In this alternative scenario non-proprietary software 
development plays a part in ensuring that transparency and 
accountability are maintained in emerging e-government 
systems and offers scope for public participation in technical 
development. Whereas e-government systems are in danger of 
interpolating a passive user, based on a standardised model of 
the consumer-producer, non-proprietary software development 
could contribute to the maintenance and development of 
democratic 'citizen-user' subject positions. 



1. Discourses of Non-Proprietary Software:^ Free/Libre and 



Open Source 



' Open source approaches are not intended just as a form of public 
consultation on technology decisions. They also open the code up to 
inspection. Whilst we support democratisation via consultative exercises, we 
are also concerned with the opening up of governmental processes using open- 
source as a pm^adigm for externalising the internal processing systems. 

Here, we concentrate on non-proprietary 'free software' and 'open source'. 
For a detailed overview of the vm^ieties of non-proprietary software see 
Straskontoret (2003: 9-18). 
86 



The Free Software Foundation (FSF) and Open Source 
Movement (OSM) are two Internet-based groups committed to 
the creation of computer software products that are open and 
freely shared. This means that after a piece of software is 
designed and written, its 'source code' , the only form readily 
readable by humans, is distributed with the released software, 
known as the 'binaries'. With the source code remaining in 
either the public domain or a commons, the programming public 
at large (not just the original developers) can subsequently read, 
share, and modify the software. To facilitate this, free and open 
source software is generally released using either an open- 
source license or the General Public License (GPL), both of 
which allow for authorised changes and uses. The GPL gives 
additional requirements that prevent a piece of software being 
converted into proprietary software, a process termed 'copyleft' 
(Stallman2003). 

The 'non-proprietary' approach differs from how most 
commercial software companies develop and release software. 
'Proprietary' software vendors only license the use of 'binaries'. 
They enforce contractual commitments not to disclose source 
code so as to prevent the use of the intellectual property that 
they identify as being located therein. The executable binary is 
then sold as a licensed software product to users who pay both 
to use and upgrade it. Whilst it is possible to reverse -engineer 
object code back to source code, it is a demanding, time- 
consuming, and (commonly) illegal exercise. In effect, 
proprietary software owners deliver a 'black-box' whose 
contents cannot be understood by the user and which only the 
owners can read and adapt. Against a collegiate academic 
tradition of sharing software in computer science, proprietary 
software vendors vehemently defend their right to protect their 
intellectual property (Microsoft 2004). 

Non-proprietary software licenses allow a broad 
exchange of knowledge amongst the programming community, 
both through the sharing of source code and through the textual 



Programs are written in text documents, which contain the logic of program 
operation and are known as 'source-code'. This includes the controlling 
algorithm, data structures and version history. For source code to be usable, it 
must be compiled into the machine -readable code that can be read and 
executed by the computer, known as the 'binary'. This process removes the 
need for the original source code files to use the program. A computer 
application when compiled into a binary may be sold without the underlying 
source-code but may not be modified. 

The provisions of copyleft are enforced by copyright law 

87 



artefacts that support it (e.g., programming commentaries, 
documentation, hypertext Web pages, and discussion forums). 
This makes an 'open' and collaborative process of software 
development possible, in which loose groupings of 
programmers (typically coordinated and communicating via the 
Internet) identify and fix errors in software, and submit thoughts 
and modifications to the overall development of a project. This 
peer-produced, commons-based model of software development 
is an increasingly prominent (some say, 'revolutionising') part 
of software development today (Moody 2002). The operating 
system GNU/Linux has attracted most public attention, and is 
steadily gaining users at the expense of proprietary products, 
like Microsoft's Windows. 

There have been recent attempts to theorise this "open- 
source revolution" and to explain the motivation of the 
volunteer 'hackers' who contribute to non-proprietary projects 
(Berry 2004; Berry and Moss 2005; Bezroukov 2003; DiBona, 
Ockman, and Stone 1999; Raymond 2001a; Weber 2004). What 
is clear from this is that, whilst members of both the FSF and 
OSM defend source code that is publicly accessible, the 
meaning attached to the practice differs. Indeed, interpretations 
of non-proprietary software development are hotly contested at 
the level of discourse (Berry 2004). Of most significance is a 
controversy between (1) a value-based discourse of 'ethics' and 
'individual freedom' and (2) an apolitical discourse of 
'technical efficiency' and 'neo -liberalism'. These two positions 
play themselves out in the essays and interviews of two key 
'founding fathers' within the Free Software and Open Source 
communities: Richard Stallman, of the Free Software 
Foundation (FSF), and Eric Raymond, of the Open-Source 
Initiative (OSI). We summarise their positions below, but we 
would direct the reader elsewhere for a fuller account (Berry 
2004). 

For Stallman (1992; 1993; 2002), access to source code 
is viewed as a basic human right and moral norm. Free software 
is integral not only to intellectual progress, by providing a legal 
framework for exchanging knowledge freely, but also to the 
freedom of the individual (viz., free assembly, speech and 
thought) (Pigdog 2004: 2). Software should be 'free as in 



GNU/Linux combined the labour of the programmers Richard Stallman and 
Linus Torvalds, and was released with its source code made available. 
GNU/Linux was (and is) incrementally developed by the input of 
programmers worldwide. 



freedom, not free as in free beer' (Stallman 2002). The 
transparency and malleability of free software gives all users, 
not just initial developers, the freedom to shape and modify 
software. This freedom is important for Stallman, whose 
conception of 'freedom' points to dangers to free expression if 
ideas have restrictions on usage. Non-proprietary software 
development has an ethical value, as much as a scientific and 
intellectual application. While Stallman recognises that non- 
proprietary development might have certain advantages in 
engineering terms, this is less significant than the ethical and 
political case (Stallman, 2003c). 

For Raymond (2001a; 2001b; 2003) of the OSM, access 
to source code is defended in terms of its practical benefits for 
effective and 'efficient' software development: 'Open source is 
not particularly a moral or legal issue. It's an engineering issue. 
I advocate Open Source, because very pragmatically, I think it 
lead to better engineering results and better economic results' 
(Raymond 2003a). For Raymond, when large numbers of 
hackers work simultaneously on a project, better technical 
solutions emerge than would in a bureaucratic control system. 
Access to source code is here a 'means to the end' of superior 
and secure software, rather than an end in itself. Whereas 
Stallman views non-proprietary software development in ethical 
terms, Raymond views it as an optimal software development 
methodology. 

For Stallman and the FSF, code, and the freedom to, 
read, modify and copy that code, is constructed as a public good 
as well as an individual one. This is reflected in the copyleft 
principle enshrined in the requirements of the GPL (Stallman 
2003). For Raymond, code is constructed as property owned by 
an individual programmer who has the right to control and 
develop it. Coding is based on the needs of a private individual 
(Raymond, 2001a). Raymond is most concerned with the 
freedom of the individual to work on a project that is of 
particular selfish interest. If this is useful to others, then it is the 
invisible hand of the free-market meeting needs (Raymond, 
1999a, 2001a, 2003a). 

This adumbrated contrast between two discourses of 
non-proprietary software can be mapped onto broader debates in 
the theory of technology. The discourse of Raymond and others 
of the OSM depoliticises technical development, balkanising the 



^^ The distinction is between free as libre, or freedom to use, as opposed to 
free as gratis, or free of charge. 

89 



technical sphere from pubhc debate. The value-based discourse 
of Stallman (2003d) recognises the connection between politics 
and technology. For Raymond, technologists' best practice is 
ethically neutral, apolitical and driven by egoism. As Raymond 
represents them, both technology and the 'free-market' (or 
'bazaar') are quasi-natural phenomena, developing outside, and 
in a way that is ultimately impervious to, the 'social' world of 
politics and values. 

It is probable that many engineers, typically trained in 
positivist, means-end rational approaches to solving problems, 
treat politics or values in the technical sphere with suspicion 
(Scoville 1999). Debates on prevalent discussion websites such 
as Slashdot suggest as much. Discourses of technical 
efficiency and neo-liberal economics may provide a 
'commonsense' and more convincing 'order of discourse' 
(Foucault 1989).^^ In addition, this discourse appears to be the 
chief stimulus for government concern with non-proprietary 
software (see below). There is a danger, therefore, that such a 
representation of non-proprietary software production will 
supplant other interpretations, achieving 'closure' or 'hegemony 
by fixing the elements within the discourses surrounding the 
production of code' (Berry 2004:82). 



2. Non-Proprietary Software in Government 

The increased availability of non-proprietary software has 
provided users with a viable alternative to proprietary software. 
This includes governments, who are currently initiating e- 
govemment and e-democracy programmes. Many governments, 
meanwhile, have been considering the merits of non-proprietary 
software and have been considering policies that encourage or 
mandate its use (CSIS 2004; Hahn 2002: 5-7; Scacchi 2002; 
Weber 2003). To avoid the dominance of US companies, 
countries like China, India, Mexico, Brazil and France support 



http://www.Slashdot.org . 
^^ Open-source can be interpreted as a rational response by economic interests 
to monopolistic tendencies in the software market. New or marginalised 
software companies can overcome barriers of entry into a saturated software 
m^^ket by becoming open source. They can change their profit-making 
strategy from the sale of licensed software to other aspects of their business, 
such as charging users for technical services mid customisation. This argument 
is sometimes favoured in the open-source community. 
90 



the use of non-proprietary software (Kesan and Shah 2002: 
167; Moody 2002: 317-318). However, more broadly, the 
implementation of open, non-proprietary systems in government 
is negligible compared to the use of proprietary 'solutions'. 

In line with other research (CSIS 2004; Kesan and Shah 
2002: 62-65, 84), an analysis of official government discourse 
suggests that discussion about the pros and cons of using non- 
proprietary software has so far been dominated by a concern 
with cost-effectiveness, technical superiority and security (e- 
Government_Unit 2004; Leigh 2003: Q1-Q22). Governments 
do on occasion mention the socio-political factors involved in 
implementing technology. But they remarks are generally 
negligible, parenthetical and delphic (CommitteeForTheFuture 
2004). Norway's government is not unique in aiming, '...to 
attain such vaguely defined goals as a higher quality of life, 
increased user participation' and to avoid '... the new 
technology being used in ways that reinforce, or even increase, 
social inequality' (Brosveet and S0rensen 2000: 271). But these 
concerns are outweighed by questions of cost-effectiveness, 
technical efficiency and security. Government attitudes to non- 
proprietary software show parallels with the discourses of 
technical efficiency and neo-liberal economics surrounding non- 
proprietary software, while the value-based discourse of non- 
proprietary software production is ignored (Section 1) (CSIS 
2004). 

Countless government technology projects have been 
plagued by costly implementation problems. It is not 
surprising, therefore, that governments would carefully consider 
the case that non-proprietary software reduces the cost of 
obtaining and maintaining software (Fitzgerald and Kenny 
2003; Lerner and Tirole 2002). One methodology for comparing 
costs of technology maintenance (the 'total cost of ownership' 
or TCO) suggests that open source software is on the whole 
cheaper than proprietary software (Wheeler 2003). Yet the 



^^ Realpolitik in international relations may come into play in government 
decisions to opt for non-proprietary software. For example, in China, Brazil, 
India mid elsewhere, there is the view that being dependent on America for 
such an important resource as software would be against the national interest 
(see CSIS 2004). 

In the UK, where government departments have over 100 ICT projects in 
progress with a total value of £10 billion, a number of projects have been 
classed as 'unsuccessful'. A survey in 2003 showed that only 13% of software 
projects were 'successful'; viz., on time, to specification and to cost (POST 
2003: 1). 

91 



'economic facts' of software are often malleable enough to suit 
the case in hand. There are conflicting reports, and dispute on 
the issue continues unabated (Giera 2004; Schmidt and 
Schnitzer 2002: 26). All that is clear is that proprietary 
companies charge a license fee for obtaining software, whereas 
free software and open-source groups provide the software for 
free, but will then usually charge for services. 

Governments also recognise that when the source code 
is freely available they are unlikely to be tied to any single 
vendor (Raymond 2001a: 152). " In choosing non-proprietary 
software, government may be opting for a low market-share 
product. This is a potentially very serious drawback in a 
software market that has notoriously tended towards monopoly 
and path-dependence (Arthur 1994). But governments can avoid 
the fate of 'lock-in', where it becomes difficult to move to 
another software package or vendor, due to costs incurred, 
incompatibility of software and hardware and the lack of 
suitable providers (Schmidt and Schnitzer 2002: 19-21; 
Statskontoret 2003: 63-68). Dependence on a single vendor may 
be costly when organisations are licensing the software directly 
from the providers and paying for software upgrades 
(Statskontoret 2003: 78). It is also possible to hire external 
support in the commercial market if the source code is available, 
thereby keeping prices competitive. For government 
departments struggling with over-running costs, this economic 
rationale of supporting non-proprietary software has had 
appeal. 

Data security is also a foremost government concern, 
particularly because of bugs, computer viruses and fears of 
technologically enabled terrorism and crime (Wiener 1993: 156- 
159. It has also, therefore, been central to government thinking 
about non-proprietary software (Leigh 2003: Q22). Many 
supporters of non-proprietary software argue that it is more 
secure than proprietary software (Statskontoret 2003: 57). When 
the source-code is available, the security of the software can be 
checked widely by a large number of programmers or 'eye- 



A localized version of Microsoft windows was not available in Ethiopia 
whereas computer users have been able to create their own version of 
GNU/Linux (Moody 2002: 317). Similarly, a Welsh version of GNU/Linux 
was instrumental in forcing Microsoft to produce a Welsh language version of 
the Windows operating system (ic Wales 2004). 

The UK government, for instance, hopes to save £100 million by re- 
negotiating software licenses and examining open-source software (Leigh 
2003: Ql). 
92 



balls' in Raymond's terms (Raymond 2001a: 33). But, once 
again, there is disagreement on the subject. Ken Thompson 
(1984) has outlined the worrying possibility of embedding a 
"back-door" into a non-proprietary compiler that would be 
undetectable and reproducible. In addition, even though the End 
User License Agreement (EULA) of proprietary software 
licenses usually excludes liability (Statskontoret 2003: 57-58), 
governments may feel more confident when they have a specific 
entity with responsibility for software security. (This is part of 
the reason why companies such as IBM and Red Hat have 
moved to supplying 'packaged' open-source solutions.) 

Our analysis of government technology policy suggests 
that economic and technical efficiency concerns dominate 
government thinking about the qualities of non-proprietary vis- 
a-vis proprietary software (CSIS 2004; Lerner and Tirole 2002; 
Mockus, Fieldmg, and Herbsleb 2002; OGC 2004). Given the 
controversy over these issues, it remains a moot question as to 
whether governments will implement non-proprietary on these 
grounds. 'Neutral' government procurement policies on the 
licensing model of software leave either option open (e- 
Government_Unit 2004). Whatever the 'rights' and 'wrongs' of 
the technical and economic efficiency of non-proprietary 
software (we have been deliberately unforthcoming and 
agnostic about these 'technical' questions), what has been 
generally ignored are other benefits that the non-proprietary 
software production and distribution processes have been 
interpreted as having (Chadwick 2004; Scacchi 2002). Whereas 
discourses of neo-liberalism and technical efficiency 
surrounding free and open source software have been drawn 
upon, discourses of ethics and freedom have not. This means 
that any democratic ramifications that non-proprietary software 
might have are overlooked. It also means, we can conclude, that 
the translation of non-proprietary software into government is 
unlikely to affect existing power relations significantly. It is 
likely to bring more 'politics as usual' rather than 
democratisation. 

None the less, the next and final section builds on the 
value-based discourse of non-proprietary software in order to 
consider a scenario in which non-proprietary software 
development contributes to certain key democratic values (viz., 
transparency, accountability and participation). We argue that 
non-proprietary software development, when represented as a 
collective, value-based practice, might contribute to opening 
and democratising newly emerging e-government systems. This 

93 



is the lineaments of a new radical and associational democratic 
project for an age of digitally mediated government and 
democracy. 



3. Opening and Democratising E-Govemment 

Transparency in government has long been viewed as a key 
democratic value. It contributes to the accountability of political 
decisions, as well as to public trust and the legitimacy of 
political systems. To the greatest extent possible, government 
procedures in a democracy should be open, so that governments 
(or those bodies given the responsibility to work on their behalf) 
and governmental processes can be publicly knowable, 
contested, or defended. 

From a democratic perspective, the openness of non- 
proprietary software development can contribute to ensuring 
that a level of openness in emergent e-government systems is 
maintained and extended. Lawrence Lessig's (1999) analogy 
between software code and legal code demonstrates the point. 
Briefly stated, Lessig argues that computer code constrains 
human action and shapes human agency, in a similar fashion to 
law. Like law, code can prescribe certain values back onto 
individual users, shaping, for instance, their level of freedom or 
privacy. Lessig further argues that this constraining power of 
code in the digital age should be subject to the same values of 
openness and transparency that serve in the production of law 
(Lessig 1999). For our purposes, the argument that computer 
code imposes some level of control on people as law does, and 
should therefore be similarly open and transparent, is a useful 
starting point. For a system of e-government where software 
code and its development is hidden from public view has 
parallels with an offline government in which laws and legal 
decisions affecting governmental processes are publicly 
unknowable. Neither system could be called democratic, at 
least, as we generally now understand that term. 

The need for software code transparency in e- 
govemment systems can be appreciated when we consider the 
computation of votes in public elections. The UK government, 
amongst others, has considered e-voting as part of its agenda to 
modernise its electoral system. Targeting this potential market, 
a number of private sector vendors now specialise in the 
development of proprietary e-voting systems, some of which are 
being implemented or considered by governments. In defending 

94 



a proprietary model of software development, these companies 
argue that secrecy of source code is a necessary requirement for 
keeping their e-voting systems secure. 

Not long ago source code that tallied very closely with a 
proprietary voting system developed by Diebold, which had 
earlier been employed in United States municipality elections, 
appeared on the Internet. This allowed Kohno, Stubblefield, 
Rubin and Wallach (2003) to conduct a third-party analysis of 
the voting system. They found that the voting system was below 
minimally acceptable standards applicable in other contexts. 
They saw a risk of individuals having multiple votes, an 
inadequate use of cryptography, and high \ailnerability to 
network threats (Kohno et al., 2003). The system fell short, in 
their view, of displaying the 'robustness' and 'security' required 
for a system usable in democratic public elections. 

Kohno et al. (2003) argue that the problems they 
located with the software resulted from the use of a closed, 
proprietary model of software development. They advocate the 
use of an open, non-proprietary model for the development of 
election technologies, instead: 

An open process would result in more careful 

development... [Those] who value their democracy 

would be paying attention to the quality of the 

software that was used in their elections (Kohno et al, 

2003:22). 

Whether or not non-proprietary software development is 

technically 'superior' or 'more secure' as Kohno et al. (2001) 

suggest (once again, we remain agnostic), their study illustrates 

the socio-political significance of source code transparency. 

Non-proprietary software development allows a number of 

individuals and groups to evaluate software development and to 

contest it. Whilst the source code became available in this 

instance, proprietary software vendors are quite capable of 

defending their intellectual property and keeping source code 

private. ^^ Accordingly, the software used for an e-voting, or 

other e-democracy or e-govemment systems, is fenced off from 

public visibility and thereby from public contestation, too. 

Kohno et al's (2003) case of the e-voting system is one 
example of why it might be necessary to ensure transparency in 
the code that structures relationships between governors and 
governed, representatives and represented. There are many 



^^ Besides, it does not seem at all feasible to rely on acts of intellectual 
property 'theft' to ensure transparency and openness. 

95 



conceivable examples, including those with a bearing on other 
core public concerns. The electronic calculation and collection 
of taxes is arguably a case where trust can be built into the 
system when the software code that runs these systems can be 
publicly viewed. Moreover, any e-government system that 
involves data storage and sharing raises concerns for individual 
privacy, which would better understood if their design was 
open. 

It should be recognised, of course, that a degree of technical 
competence is required to know what a particular piece of 
software code refers to, let alone appreciate the role it plays in a 
program. Unlike Kohno et al, few people currently have the 
technical competence to read and comprehend source code. The 
great majority of us are positioned in a relationship of passivity 
vis-a-vis technological development. But if most 'ordinary' 
citizens lack the capacity to decode code, does this not eradicate 
the democratic need to ensure that the software code in e- 
govemment systems is transparent? To a certain degree this 
objection to source code transparency also applies to the 
formalisation and transparency of law (Lessig, 1999). Beyond a 
general awareness, the legal system remains a bewildering and 
mysterious entity in the eyes of many. The public has to 
typically rely on representatives and legal experts to interpret 
the law and its consequences. 

Still, in the right democratic circumstances, the 
transparency of law and legal decisions can have some of the 
traits of Jeremy Bentham's 'panoptic tower'. Whilst law -makers 
do not know whether their conduct is being watched at any one 
moment, transparency of law also ensures that they can never be 
sure that they are not (Foucault 1977). Just the thought that they 
might be being watched, without necessarily the reality that they 
are , can mean that a subject-position is formed in which 
representatives and lawmakers in liberal political systems self- 
regulate their conduct. There is good reason to defend the 
transparency of software code as well as law on these grounds. 
Using proprietary code, a development group given the task of 
working on key aspects of e-government or e-democracy 
systems (i.e. a government department or those working on its 
behalf) are fenced off from public gaze or 'supervision' in 
Jiirgen Habermas's (1974, p54) sense. They can be relatively 
sure that they are not being watched. With non-proprietary 
software development the contents of the black box (i.e., 
knowledge, values, and the source code that instantiates these 
expressions) are open to public visibility. Although the group 

96 



would not know it was being watched, it can also never be sure 
that it was not. Technical activity is therefore placed in a 
subject-position and relationship vis-a-vis citizens that 
engenders a certain policing of conduct. 

Notwithstanding these panoptic effects, we appreciate 
that it is only through increased public awareness and citizen 
activity that the transparency of code would lead to appropriate 
accountability in the actions of technical designers and 
developers. But again, the same holds for law. Legal rights, 
whether referring to the transparency of legal or software code, 
might be necessary for an effective and functioning democracy. 
But they are not sufficient. Democracy requires not only formal 
legal rights, but also a political culture of public initiative and 
participation that brings these rights into play. So when it comes 
to the transparency of software code, there is need for an 
engaged public that questions technical design and development 
and brings it to account. 

Any such development depends, in no small part, on how 
the functioning of the technical sphere is discursively 
represented and constituted. Here, we restate the significance of 
the controversy over interpretations of the production of code in 
the free and open-source movements (section 1), and 
government interpretations of non-proprietary software (section 
2). If the technical sphere and the production of code are 
understood solely in terms of technical and economic efficiency, 
there is little space for public involvement. This discourse 
reinforces the barriers around the technical sphere, preventing 
participation by interlopers (the 'non-technical' public) who 
encumber the real business of 'running code'. 

But when the technical sphere and the production of code is 
politicised, a space is made for public participation (Feenberg 
2002; Lessig 1999; Sclove 1995). Understood as a value-based, 
politically significant and collective activity, the production of 
code encourages and facilitates a broader exchange of 
knowledge and values, not just in terms of source code, but also 
through supporting textual artefacts. There is some potential 
here in the alternative value-based discourse of some free and 
open source groups, not only of the Free Software Foundation 
itself, but also other software groups like the Appropriate 
Software Foundation. Moreover, with the increasing recognition 
of the digital mediation of our human conduct, it is possible that 
the politicisation of software code will develop correspondingly. 
Democratic movements of various stripes have worked in the 
past by rendering previously private and non-political things 

97 



(e.g., economy, gender, race, sexuality) public and political 
(Benhabib 1996). There is also possibility that the political 
implications of software development will extend beyond 
existing technology groups to be acknowledged and debated by 
the political-public at large. 

There are various ways to tlesh this suggestion out. 
Methods already exist for increasing public participation in 
technical design, including consensus conferences and scenario 
workshops. The literature in socio-technical and participatory 
design considers these issues in depth (Kesan and Shah 2002; 
Scacchi 2004; Sclove 1995). Parallel debates in participatory 
democratic theory are valuable, even if this literature might err 
on occasion by excluding the technical from democratic 
concern. We do not deal with all these considerations here. But 
we suggest that one possible route to inject public participation 
into non-proprietary software development is to be found in 
some form of associational democracy (Cohen and Arato 1992; 
Hirst 1994). 

A commitment to associational democracy in this context 
would first of all mean fostering and encouraging socio- 
technical associations in civil society. These democratically 
organised associations would evaluate and politicise emerging 
e-government systems and provide a mode of connection 
between citizens and the body legally responsible for 
developing these systems. These associations could place 
advocates of certain core public concerns into forums of 
technical and government decision-making. They could, 
furthermore, serve an educative function in bringing wider 
public understanding of the varying political implications of 
software code, and of the government processes involved in 
particular e-govemment systems. When injected into the 
technical design and development process, associations could 
contribute towards increasing public awareness and 
engagement. 

This is a wider possibility envisioned in Walt Scacchi's 
(2002: 3) imaginary of an 'open government': 

Open government seeks to open for public sharing, 
discussion, review, ongoing development and 
refinement, and unrestricted reproduction 
(replication and redistribution) the "source code" 
of the products and processes of the business of 
government. Open government represents a 
concept that seeks more than just the adoption and 
use of open source software systems by 



government agencies. This concept seeks to 
explore the potential and opportunities that can 
emerge when one views the purpose of digital 
government as also including how to empower and 
engage an interested public... (Scacchi 2002: 4) 

Public engagement with e-government processes, as Scacchi 
implies, need not be restricted to monitoring technical design 
and development. There is also the more radical opportunity for 
public involvement in the 'ongoing development and 
refinement' and 'reproduction' of the 'source code' of an e- 
govemment project. When source code is made available, and is 
surrounded by open processes of communication, it can be more 
easily modified to support different public concerns. Socio- 
technical associations of civil society are thus not only able to 
contribute to public debate about technology, but can develop 
modified versions of the technology that contribute to the 
overall development of a system. This associational democratic 
vision is far removed from the present: it is radical and far- 
reaching. But we can still outline some cases in which this 
associational socio-technical vision might be fostered and 
encouraged. 

(1): Movements in value -sensitive design have 
recognised the potential for modifying technology that open, 
non-proprietary software development offers. Their work begins 
by evaluating particular software implementations in terms of 
how they support core values like anonymity, privacy, 
autonomy, communicative and group rights. They then seek to 
rectify any deficiencies that the software might have. One 
example of value sensitive design is the re-designing of the 
cookie management system on the Mozilla Web browser. After 
an evaluation of existing cookie management systems, 
Nissenbaum and Howe (2003) located a urgent need to respect 
user's 'privacy' and right to give 'informed consent'. Making 
use of the availability of the source code for the non-proprietary 
Mozilla browser, they designed an implementation that 
supported these values. They thereby offered an alternative to 
available proprietary products that had used cookies to store 
user information covertly (this data has then be made available 
for commercial uses such as advertising and marketing). 
Furthermore, Nissenbaum and Howe also issued a detailed 
(socio-technical) rationale for their design choices, so 
contributing to public awareness and debate over software 
development. 

99 



(2): Software is being used to critically open up 
technology and expose its underlying structures (Fuller 2003). 
Sometimes referred to as 'critical software', this allows 
competing democratic values to be supported. One example is 
'I/O/D 4: The Web Stalker'. This is a project to produce 
software that rejects the standard 'browsing' models for using 
the Internet, understood as passive and consumerist, and 
develop a more active 'citizen-user' repertoire. Rather than 
present the user with a preformatted webpage, it offers the 
possibility to reconstruct and hack the underlying structures of 
web pages in real-time (Fuller 2003: 51-67). The recent launch 
of 'Flock', ^^ a web-browser that allows the dialogical use of 
web pages through built in blog, 'flickr' and 'del.ici.ous' 
functionality, is another example. Critical software could have 
applications in e-govemment systems, restructuring government 
web pages presented as 'finished' or 'rendered'. Specific 
examples include 'theyworkforyou.com'. This 'scrapes' UK 
Parliamentary websites and represents Hansard debates. Written 
Answers and Select Committee reports in a form that can be 
shaped and easily searched. The website 'thepublicwhip.com' 
performs a similar scraping method to locate the details of MP's 
voting records, their attendance in debates and so on, giving the 
user the opportunity to scrutinise or supervise their 
representative^^. Should government websites rely on 
proprietary or closed technologies, such as Flash, critical 
software would not be able to function. Democratic support of 
open and non-proprietary software development is also 
important in this context since it provides the basis for critical 
software skills to develop. 

(3): Hacklabs are socio-technical spaces that allow 
connections to be forged between hackers and other civil society 
groups. Hacklabs provide an alternative socio-political 
perspective on technology that challenges standard proprietary 
software products and aims to shape and subvert existing codes 
(Blicero 2002; Hacklab 2004). These groups are keen to reach 
out to those without technical 'skills' and are also active in 
reconstructing software tools to support political projects. 
Crucially it is non-proprietary software that allows these tools to 
be actively reconstructed. Hacklabs contribute to a commons of 
free and open-source code that provides a growing collection of 
applications that the citizen-user, non-governmental 



^^ http://www.flock.com 
http://www.theyworkforyou.com and http://www.pubHcwhip.org.uk 

100 



organisations and others may use and re-use freely (Blicero 
2002). It is not impossible to imagine that if governments were 
to actively use non-proprietary software then similar projects 
could form that encourages a citizen-user that is not merely 
consuming government information but participating more 
actively. 

There is some potential in these traces of socio- 
technical associational development in civil society for 
increasing public participation in technology design. They could 
prefigure the participation of a greater number of associations in 
e-government projects. But such a process of democratisation, 
as we have underscored throughout, implies a sea change in 
government approaches to technical design, development and 
deployment. The pre -occupation of governments with cost- 
effectiveness, technical efficiency and security would have to be 
met with a recognition of the socio-political implications of 
technical development and a willingness to forge a meaningful 
role for civil society associations. In emerging e-governments 
that address the citizen as user, the user is currently covertly 
defined and configured primarily by state administrators and 
private interests. By recognising the socio-political nature of 
'technical' decisions, space can be afforded for citizens and 
associations to have a more active role in the software design 
process. 

For one thing, increased public involvement in e- 
govemment design would avoid the temptation of creating 
simplified and standardised models of the 'citizen-user'. Most e- 
govemment models have what has been termed a 'crippled 
model', using a data flow that is unidirectional, from 
government to the individual (Richard 1999: 75-76). These 
'citizen-oriented' (Lenk 1999: 88) systems are on the whole 
consumer-orientated information retrieval systems, and thus fail 
to offer opportunities to increase participation in public life and 
decision-making. It is not surprising, then, that such systems 
typically fall short of realising the democratic 'potential' that 'e- 
democracy' advocates have for some time attributed to new 
media technologies. 

There is a danger that emergent e-government 
technology and the discourse that it instantiates will simply 
interpolate a passive political subject, based on this model of a 
consumer-producer relation. Yet, in democratic terms, it is 
important that the concept of the citizen be carefully transferred 
to that of a 'user' without reducing the activity of the former to 
the passivity of the latter. In our view, following Mouffe's 

101 



(2000:95) theory of radical democracy, the core democratic 
objective must be to multiply 'the institutions, the discourses, 
the forms of life that foster identification with democratic 
values'. When constructing the user position and repertoire of 
the citizen, it is necessary that citizens should help define and 
participate in their construction. This is something that 
associational democratic practices surrounding non-proprietary 
software production and development could facilitate and 
encourage. 



Conclusion 

Governments are in the process of transforming themselves into 
'e-govemments', and 'citizens' are being reconfigured as 
'users'. Now is a time when the application of new technologies 
in emerging e-government systems is being discursively 
constituted. On the whole this process is dominated by 
discourses of technical and economic efficiency. Governments 
have been relatively quick to recognise that non-proprietary 
software may be more cost-effective, technically efficient and 
secure than proprietary software. A number of governments are 
considering introducing (or already have introduced) non- 
proprietary software for these reasons. We have been agnostic 
about the 'truth' or 'falsity' of such an interpretation of non- 
proprietary software throughout. We have chosen to focus on 
the democratic implications of how these technologies and 
development processes are interpreted. We have argued that by 
interpreting non-proprietary software only as a question of 
economic and technical efficiency, democratic features of the 
software development model are at best downplayed, worse, 
overlooked and, worse still, endangered. 

However, we have also looked tentatively towards a 
value-based discourse surrounding the production of software 
code and to progressive movements monitoring and modifying 
values embedded within technology. We have done so in order 
to envisage a scenario where the discourse and practice of non- 
proprietary software prises open and democratises the e- 
govemment black-box. In these circumstances, non-proprietary 
software use in e-govemment contributes to core democratic 
values: transparency, accountability and participation. When the 
relationship between citizens and governments is digitally 
mediated, transparency of code is crucial in allowing the public 
to monitor and contest government processes. Whereas 

102 



proprietary software development typically offers a black box in 
which knowledge and values are enclosed, non-proprietary 
software development can expose technical activity to 
supervision. Non-proprietary software, we have also argued, can 
facilitate a broad exchange of knowledge, values (and source 
code) between government, representatives, software developers 
and citizen associations in terms of democratic institutions and 
procedures, and also of the technical processes that serve these 
functions in software code. 



103 



1 1 . On Byways and 
Backlanes: The Philosophy of 
Free Culture 

— David M. Berry 



We see before us a turning in free culture. This turning, lies 
between the claims of the ordinary against those of the 
extraordinary, and suggests that we need to carefully examine 
our current situation. The ordinary highlights the fact that even 
in the beginnings of free culture there existed its middle and its 
end, that its past invaded its present, and even the most extreme 
attention to the present is invaded by a concern for the future. 
Whereas the extraordinary highlights the possibility of thinking 
that brings us out of this life-world and instead opens out and 
unfolds the way in which we might reveal a different world. 
This world could be said to be both within capitalism and 
between capitalisms. Here we might think about the 
transformation of the economic base from an industrial fordist 
form of capitalism, to an economy founded on the valorisation 
of information and code, a postfordist capitalism. Free culture, 
then, could be said to lie in the interstices, and in so doing could 
be a rare chance to help to point the way from the lived to the 
desired. 

In this short chapter I attempt to follow Heidegger 
(2000) in suggesting that the work of a philosophy of free 
culture is to awaken us and undo what we take to be the 
ordinary; looking beyond what I shall call the ontic to uncover 
the ontological (Heidegger 2000: 28-35). In this respect we 
should look to free culture to allow us to think and act in an 
untimely manner, that is, to suggest alternative political 
imaginaries and ideas. For this then, I outline what I think are 
the ontological possibilities of free culture and defend them 
against being subsumed under more explicitly ontic struggles, 
such as copyright reform. That is not to say that the ontic can 
have no value whatsoever, indeed through its position within an 
easily graspable dimension of the political/technical the direct 
struggles over IPR, for example, could mitigate some of the 

104 



worst effects of an expansion of capital or of an instrumental 
reason immanent to the ontology of a technological culture. 
However, to look to a more primordial level, the ontological, we 
might find in free culture alternative possibilities available 
where we might develop free relations with our technologies 
and hence new ways of being-in-the-world. 

For Heidegger the ontic is at one step removed from the 
more fundamental level of analysis, the ontological. The ontic is 
the level of everyday existence and our thought, practices and 
knowledge with which we go about our normal lives. Within the 
bounds of the ontic lie our universe of perception and contain 
the formal and tacit rules and meanings by which we structure 
our understanding of the world, and indeed on which we rely in 
order to make the very possibility of action possible at all. 
Nonetheless, there are important boundaries to the ontic, 
manifested most clearly in the difficulty we have when 
confronted by radical difference, that which lies outside the 
categorical system of perception which structures existence; and 
hence why some have argued that the possibility of a radically 
original creativity is impossible. In some important sense, as 
Derrida observed, our categories are already constituted by their 
other, 'black,' for example is immanent to the concept of 
'white,' or 'in' to the concept of 'out.' This then presents an 
important starting point in our understanding of how free culture 
can act to shed light and open up that which is presently hidden 
so that we can penetrate through the ontic to the possibilities 
that are concealed. 

We might look at a fundamental level at how free 
culture relates to being-in-the-world in terms of being thrown 
into a world of meaning, in other words, how we as 'beings' 
engage with an already existing culture. Here the possibilities of 
culture within the philosophy of free culture are unfolded and 
geared to that of a gathering (Heidegger 2000: 355) — here I 
am including the sphere of technical as well as explicitly 
cultural production or techno-cultural works. In this way the 
artefact has a social role, it is itself a locale that can make space 
for a site and therefore express more than merely its own 
properties. We could look at the way in which free/libre and 
open source software (FLOSS) has revealed the social 
dimensions of technology in a profound manner and has been 
key to creating spaces of sociality through the freeing of 
something within a boundary (Stallman 1992, 1993; Hih 2005). 
Here, though, I do not mean boundary in terms of something 
which stops but rather as something which begins an essential 

105 



unfolding, an opening that is presented as a locale, a site which 
is in anticipation of dwelling by others. This dwelling can be 
conceptualised as a warm social space where we can share our 
experiences and welcome each other. This is the common space 
of free culture (see Berry and Moss 2006), a space of dwelling 
in which we can build, but importantly this is a commons that is 
revealed and through dwelling is lived through our being-in-the- 
world. 

Nonetheless, for free culture there is a danger that we 
will be distracted by the immediate concerns expressed over the 
current struggles in setting the boundaries of intellectual 
property rights. Again, to reiterate, that is not to say that these 
are not to be ignored, nor to be forgotten, but rather the question 
of free culture is whether it is explicitly concerned with the 
ontic question of copyright (and other intellectual property 
rights) or rather with the deeper question of the nature of 
culture, sharing and being-in-the -world at a more fundamental 
level? For a preliminary answer to this question we can look to 
the discourses and practices of the Free Software Foundation 
which appears manifestly concerned at a deeper level with the 
question of being and the threat that particular modes of relation 
(which are then solidified into particular legal/ontic discourses) 
present to the activity of dealings within the world, in this case 
hacking as a social activity. In contrast to this, we can examine 
the Creative Commons movement and its overwhelming lack of 
application to any question of being-in-the-world, rather it is 
more concerned with resources and functions, and indeed its 
approach is manifested through its desire to provide 
justifications for its ontic reforms, expressed through its creative 
commons licences. These are explicitly linked to the possibility 
of turning the outputs of creative licences into profit, or in more 
Heideggerian terms, maximising culture that is produced 
through these licences as standing-reserve [1] (Heidegger 2000: 
322). 

Creative Commons seeks not a dwelling, but a database 
or repository of artefacts. This repository is envisioned as a 
collection of works which are not organised in relation to one 
another but collected in a haphazard fashion, made more 
productive and efficient by an ordering through creative 
commons licences that allow the individual expression of 
ownership and authorship to be manifest, to be searched, 
combined and re-ordered indefinitely. The concept of sharing 
here, is not that of a social space or dwelling within which we 
can persist, rather it is the negation of a dwelling, it is a cold and 

106 



inhuman place, rather hke a multi-storey car-park which is a 
temporary location for the positioning and storage of an assorted 
array of vehicles but is not meant for human habitation or 
unfolding. The commons of the Creative Commons is therefore 
a simulacra of a commons (Berry and Moss 2006), a database 
that is constructed to reflect the bias of an economic system 
geared towards the maximisation of efficiency and productivity 
but promoted through a rhetorical veneer of community, 
friendship and social exchange. 

This then is the beginning on our way into rethinking 
free culture and preventing us from being blinded by the 
apparent ontic success of the Creative Commons. It would be 
more surprising if the Creative Commons movement should not 
be successful; after all it offers a highly flexible, low-cost 
ordered collection of resources for use by post-fordist capital. 
We can see with our own eyes the advantages of a 
deterritorialised form of fragmented database-stored culture for 
the vast new corporations that are profitable by virtue of their 
lucrative foundation in information ordering, reordering and 
searching. We can also see that we must be careful in 
differentiating the form of sharing that is loudly proclaimed by 
the Creative Commons movement with the more significant 
building and dwelling that is suggested within free culture. 

Now we must turn to the form of association under 
which free culture could be organised to realise this ontological 
possibility. To do this we must also understand that we must 
look beyond politics as enacted in the ontic realm of common 
sense to that which is the very condition of possibility for our 
shared life-world. This is the realm of the political, and it is here 
that the ultimate categories for drawing the boundaries of 
political and social life are lain contestable and open to the 
project of free culture. Here though is a danger as well as a 
salvation, as we must be careful to keep uppermost in our minds 
the difficulty of linking diverse political struggle to a common 
articulation so that the democratic equivalence between 
competing groups are transformed rather than lost (Berry and 
Moss 2006). This is the definition of reality that will provide for 
the form of political experience within free culture and it is here 
that the work of Mouffe (2005b) is suggestive in her discussion 
of a redeemed civic republicanism which draws on a radical 
pluralism ensuring the necessary conditions for avoiding 
coercion and servitude (Mouffe 2005b: 9-21). If we are to 
exercise civic virtue and serve the common good, we must 
balance the fact that we are multiple and contradictory subjects, 

107 



inhabitants of a wide range of different communities, structured 
by a number of dominant discourses and lying at the 
intersection of aUernative possibiHties for subject-hood. It is 
here that we see the outhnes of a pohtics that hes in linking the 
ontological possibilities of free culture with the democratic 
struggles that are presented in anti-racism, anti-sexism, anti- 
capitalism and ecological and green movements. As Mouffe 
argues this associational form could 'give us an insight into 
ways of overcoming the obstacles to democracy constituted by 
the two main forms of autocratic power, large corporations and 
centralized big governments, and show us how to enhance the 
pluralism of modern societies' (Mouffe 2005b: 99). However, 
these struggles will not naturally converge, and will require the 
free culture movement to engage in dialogue and shared 
meanings and understandings in order to develop a democratic 
framework that can articulate an alternative to our existing life- 
world. 

At this point, of course, it is impossible to suggest what 
a free culture or lihre society might look like, and it is never 
safe to write the recipes for the cook-shops of the future (Marx 
1990:99). However, in the dim outlines suggested by the early 
experiments within free culture, it suggests that we can begin 
the revolution along byways and backlanes on and in the 
periphery. Here and now and in little things, it seems that free 
culture fosters latent possibilities within an alternative to the 
post-fordist ontology of a connectionist capitalism (Chiapello 
and Fairclough 2002: 191). Possibilities that we may use in 
terms of their ability to uncover, to reflect, but also redirect the 
ontological self-understanding of the age. 

Notes 

[1] Everywhere everything is ordered to stand by, to be immediately on hand, 
indeed to stand there just so that it may be on call for a further ordering. Whatever 
is ordered about in this way has its own standing. We call it the standing-reserve 
[Bestand] (Heidegger 2000: 322). 



108 



Appendix I (translations of 
the Libre Culture Manifesto) 



French 

Manifeste pour une societe libre 

Auteur(s) : David Berry et Giles Moss 

Traduction : N. Jolly 
Date : 26 avril 2004 
Version: 1.5.2 

David M. Berry et Giles Moss sont deux juristes qui se penchent 
depuis quelques temps deja sur la problematique du mouvement 
libre en general, et sur ces eventuelles applications economiques 
et sociales en particulier. Dans Toptique de passer de T analyse 
theorique a la pratique, ils ont cree un site, Libre society, destine 
a devenir un lieu de collaboration et de production commune. 
L 'esprit de leur initiative s'exprime a travers ce manifeste 
politique et polemique qui ne manquera pas, nous Tesperons, de 
susciter le debat. 

Une galaxie d'interets accroit actuellement son appropriation et 
son controle de la creativite. Ils affirment avoir besoin de 
nouvelles lois et de nouveaux droits afin de controler idees et 
concepts et de les proteger de toute exploitation illicite. Ils 
disent que cela enrichira nos vies, creera de nouveaux produits 
et sauvegardera la possibilite d'un futur prospere. Mais c'est un 
desastre complet pour la creativite, dont la bonne sante depend 
d'un echange continuel, libre et ouvert d'idees entre le passe et 
le present. 

En reponse, nous souhaitons defendre I'idee d'un espace 
createur de concepts et d'idees libres de toute appropriation 
particuliere. 

1. Le profit s'est trouve un nouvel objet d'affection. En fait, les 
profiteurs proclament maintenant sans vergogne qu'ils sont les 
vrais amis de la creativite et des createurs. Partout, ils declarent 
: « nous soutenons et protegeons idees et concepts. La creativite 

109 



est notre metier et entre nos mains elle est en surete. Nous 
sommes les vrais amis de la creativite ! » 

2. Non contents de ces declarations d'amitie, ces profiteurs sont 
aussi desireux de mettre en pratique ces penchants pour la 
creation . « Les actes parlent plus que les mots » dans la culture 
capitaliste. Pour exprimer leur affection, des profiteurs utilisent 
la loi, comme celle sur la propriete des droits intellectuels, pour 
s'emparer des concepts et des idees et les proteger de ceux qui 
cherchent a en faire un mauvais usage. Alors que nous sommes 
morts au monde la nuit, ils pillent gaillardement la propriete 
intellectuelle a un degre effarant. De plus en plus Tespace 
intellectuel passe sous leur controle exclusif. 

3. Que les profiteurs soient maintenant si protecteurs de la 
creativite, cherchant jalousement a proteger concepts et idees, 
ne manque pas de susciter la suspicion. lis se proclament des 
amis mais nous savons que I'amitie, ce n'est pas la dependance. 
Ce n'est pas la meme chose de dire : « Je suis un veritable ami 
parce que j'ai besoin de toi » que de dire : « J'ai besoin de toi 
parce que je suis un veritable ami. ». Mais comment sortir de 
cette omiere ? Dans toute relation d'amitie nous devrions nous 
demander : « Les deux partenaires en profitent-ils mutuellement 
?». 

4. Les profiteurs tirent clairement benefice de leur amitie 
nouvelle avec la creation, lorsqu'elle est mesuree a Laune de 
leur insatiable soif de profit. Au contraire des objets materiels, 
concepts et idees peuvent etre partages, copies et reutilises sans 
diminution. Quel que soit le nombre de personnes qui utilisent 
et interpretent un concept particulier, Lapproche initiale de son 
createur n'est ni exclue, ni reduite. Mais a travers I'utilisation de 
la propriete intellectuelle par I'intermediaire du copyright, des 
licences et des marques commercials, concepts et idees 
peuvent etre transformes sous des formes qui sont controlees et 
appropriees. Une penurie artificielle de la creativite pent alors 
etre mise en place. On pent faire beaucoup d' argent quand les 
tlots creatifs de connaissance et d'idees deviennent des biens 
rares (difficiles d'acces) a distribuer sur les marches. Et d'une 
maniere croissante, la propriete intellectuelle permet aux 
profiteurs une ample accumulation de richesses. 

5. Pour beaucoup d'entre nous I'idee de la loi sur la propriete 
intellectuelle evoque encore les visions romanesques de I'artiste 

110 



ou de recrivain solitaire protegeant ses innovations. II n'est 
alors pas surprenant que nous tendions a considerer les lois sur 
la propriete intellectuelle comme quelque chose qui defend les 
droits et les interets du createur. Cela fut peut-etre le cas en des 
temps eloignes et revolus. Mais cette vision romanesque est 
maintenant bien malade avec T exploitation recente des oeuvres 
intellectuelles. Les createurs sont devenus des employes et 
chaque idee et concept qu'ils elaborent sont captes et appropries 
par leur employeur. Les profiteurs utilisent la propriete 
intellectuelle pour thesauriser T expression creative de leurs 
employes ou d'autres. Et qui plus est, ils exercent de 
continuelles pressions pour etendre I'application des lois sur la 
propriete intellectuelle sur des durees plus longues. 

6. La « multitude » est alors empechee d'utiliser et de 
reinterpreter des domaines entiers de concepts et d'idees. Les 
profiteurs utilisent les technologies numeriques pour renforcer 
la legislation sur le droit de copie et les licences grace au code 
qui fonctionne sur les ordinateurs et les reseaux. Reposant sur 
des logiciels de gestion numerique des droits [1], les oeuvres de 
creation sont verrouillees et seuls les profiteurs ont les cles. Ce 
qui interdit la reproduction, la modification ou le reemploi d'un 
nombre croissant d' oeuvres, qui se trouvent de cette maniere 
sous controle. La liberte d'utiliser ou de reinterpreter une oeuvre 
est restreinte par des barrieres fondees legalement mais 
renforcees technologiquement. En cette epoque de capitalisme 
technologique, les acces publics au flux des concepts et des 
idees et le mouvement de creation ont ete solidement 
verrouilles. 

7. Cette evolution est un desastre absolu pour la creation, dont la 
sante depend d'un dialogue constant et de la confrontation entre 
concepts et idees du passe et du present. II est honteux que la 
multitude creatrice soit exclue de Lutilisation des concepts et 
des idees. L' oeuvre de creation n'est pas seulement le produit 
d'un unique createur. La creation ne peut subsister dans un 
neant social. Elle doit toujours a 1' inspiration et a 1' oeuvre 
prealable d'autrui, penseurs, artistes, scientifiques, professeurs, 
amants/maitresses ou amis. Concepts et idees sont dependants 
de leur existence sociale et il ne peut en etre autrement. 

8. On peut faire une analogic avec le langage courant - le 
systeme de signes, symboles, gestes et signifiants utilises pour 
la comprehension mutuelle. Le langage parle est partage par 

111 



nous tous ; il n'est a personne en particulier et libre. Mais 
imaginez le desastre si cela n'etait plus vrai. La dystopie [2] de 
George Orwell, 1984 - et T agression faite a la pensee libre par 
la « novlangue » - permet de Tillustrer. De la meme maniere, le 
controle et T appropriation des idees et des concepts est un grave 
danger pour ce que nous appelons affectueusement notre libre- 
arbitre - c'est la tendance nouvelle de la pensee creatrice et de 
Texpression. 

9. La multitude creatrice pent decider soit de se conformer soit 
de se rebeller. En se conformant elle devient creativement 
inerte, incapable d'elaborer de nouvelles synergies et idees, 
seulement consommatrice de produits standardises qui saturent 
de plus en plus la vie culturelle. En se rebellant elle continue 
d'utiliser des concepts et des idees malgre la legislation sur la 
propriete intellectuelle, et ses membres sont alors taxes de 
pirates, de detrousseurs du bien d'autrui voire de terroristes. Ces 
membres sont traduits comme des criminels devant les 
tribunaux du pouvoir global d'etat. En d'autres termes, les 
profiteurs decretent un etat d' exception permanent qui est ainsi 
utilise pour justifier Lusage coercitif du pouvoir d'etat contre 
ceux qui se rebellent. Comme nous en discuterons plus tard, un 
nombre croissant de createurs repliquent aussi par une 
resistance active contre la situation actuelle grace a la mise en 
place d'un espace altematif de creation d'idees et de concepts. 

10. II y aura des objections immediates a tout ce que nous 
venons de dire. Les profiteurs se feront proselytes et diront : « 
S'il n'y a pas de propriete privee de la creation, il ne pent y 
avoir d'incitation a produire ! » L'idee que la propriete 
particuliere de la connaissance et des idees promeut la creation 
est un concept honteux, aussi credible qu'il puisse paraitre dans 
la vision reductrice des profiteurs. Affirmer que la creativite 
prosperera si la liberte d'utiliser idees et concepts est niee, c'est 
clairement depasser les bornes. Apres s'etre esclaffes 
brievement, nous devrions remettre tout cela dans le bon sens. 

11. Selon ce postulat « incitatif », il ne pent y avoir eu de 
creativite (p. ex. I'art, la musique, la litterature, le design, la 
technologic) avant que les profiteurs ne s'approprient et ne 
controlent nos concepts et nos idees. Ce n'est qu'une fiction. 
Mais nous pourrions dire que I'histoire est pleine d'inventions 
qui font naitre le doute a propos de precedentes incarnations de 
la creativite et de la creation. Le postulat « incitatif » implique 

112 



malgre tout aussi qu'il ne peut y avoir de creativite en marche 
actuellement en dehors du systeme de la propriete intellectuelle. 
Nous sommes heureusement ici les acteurs et temoins de notre 
propre histoire. Nous devons commencer a savoir ce que nous 
avons to uj ours su - la creativite n'est pas reductible a 
r exploitation de la propriete intellectuelle. 

12. Un nouveau mouvement global, constitue de groupes relies 
en reseau qui agissent grace a un ensemble varie de moyens de 
creation - musique, art, design, logiciel - apparait en ce moment. 
Ces groupes elaborent des concepts, des idees et de Tart qui 
existent en dehors du regime actuel de la propriete intellectuelle 
- par exemple, les travaux de la communaute Libre/Open Source 
qui peuvent etre examines, confrontes, modifies, experimentes. 
La, connaissances et idees sont partagees, contestees et 
reinterpretees entre createurs et entre des amis. Comme les 
symboles et les signes du langage, leurs concepts et leurs idees 
sont communs et sans proprietaire. Contre les machinations du 
profit, ces groupes sont en train de construire un modele 
altematif reel et credible d'une vie creative. 

13. Par les principes "d'attribution" et de "partage a 
ridentique", les idees et les travaux anterieurs sont livres a la 
reconnaissance de ces communautes. Ce qui signifie que, bien 
qu'un travail puisse etre copie, modifie et redefini en un 
nouveau projet, Toeuvre anterieure est reconnue pour sa 
contribution dans la globalite de la nouvelle creation. 
Attribution et "partage a Tidentique" sont le principe constitutif 
des mouvements Libre/Open source, les chromosomes d'un 
nouveau mode de creation induit par ces pratiques sociales. 

14. Ces mouvements adoptent un ingenieux mode de dispersion 
virale grace aux licences publiques connues sous le nom de 
copyleft. Ce qui evite que les concepts et les idees ne se voient 
appropriees, tout en garantissant que les futures synergies 
fondees sur ces concepts et idees soient egalement utilisables et 
modifiables par d'autres. Alors que les lois sur le copyright 
protegent contre la modification et la reutilisation des concepts 
et des idees, le copyleft assure qu'ils restent accessibles en 
evitant qu'ils ne soient de simples biens de consommation. 
Ainsi, le copyright (tout droit reserve) est freine par le copyleft 
(tout droit reverse). Ceci constitue dorenavant le meilleur 
chemin pour la creativite - on peut maintenant la regarder en 
face. 

113 



15. Nous pensons que la multitude creatrice devrait embrasser et 
defendre les idees et les pratiques de ces groupes et le modele 
creatif qu'ils representent. De meme, nous, qui sommes deja 
une multitude, devons defendre ces idees et ces pratiques. Car 
seule la multitude creatrice pourra determiner si cette mutation 
de notre temps est viable. 

16. Tout comme la violence des profiteurs de la propriete 
intellectuelle cherche a s'intensifier, un veritable contre-pouvoir 
commence a emerger. Car la vision et les pratiques de cette 
arborescence de groupes gagnent en puissance, a travers une 
grande variete de formes d' expression. Elles offrent a voir un 
champ creatif en formation qui s'appuie sur des concepts et des 
idees librement partages entre amis. Ces groupes agissent d'une 
maniere qui est comptable de notre epoque et, esperons-le, pour 
le benefice d'une possible epoque a venir. - la creativite cree de 
la resistance au present. 



[1] DRM ou Digital Right Management. Ndt. 

[2] La dystopie est I'oposee d'une utopie : la societe du futur n'est plus 
radieuse et idylique mais chaotique et desenchantee. Quelques romans 
dystopiques : Fareinheit 451 (R. Bradbury), Le meilleur des mondes (A. 
Huxley), Tous a Zanzibar (J. Brunner). Ndt. 

Short References 

Adomo, T. and Horkheimer, M. (1976) The Dialectic of Enlightenment 

Benjamin, W. (1935) The Work of Art in the Age of Mechanical Reproduction 

Deleuze, G, and Gautarri, F. (1999) What is Philosophy? 

Foucault, M. (1990) The History of Sexuality, Vols 1, 2 and 3 

Hardt, M. and Negri, A. (2000) Empire 

Feenberg, A. (1991) Critical Theory of Technology 

Mmlin, B. (2003) Against Intellectual Property (http://danny.oz.au/free- 

s oft WM^e/advocacy/againstlP. html) 

Marx, K.( 1976) Capital 

M^x, K. and Engels, F. (1974) The German Ideology 

Nietzsche, F. (1983) Untimely Mediations 

Rose, N. (1999) Powers of Freedom 

Schmidt, C. (1995) The Concept of the Political 

Stallman, R (2002) Free Software, Free Society 



114 



Finnish 

Libre Society -manifesti 

Kohti vapaata yhteisod 
David Berry ja Giles Moss 

Kddntdnyt: Paavo Parkkinen 2004-03-30 (l^ersion 1.5.3) 

Ryhmittyma erilaisia etupiireja pyrkii lisaamaan omistustaan ja 
kontrolliaan luovuudesta. Ne vaittavat tarvitsevansa uusia lakeja 
ja oikeuksia, jotka sallivat niiden kontrolloida ajatuksia ja 
ideoita, ja suojata niita hyvaksikaytolta. Ne sanovat, etta se 
rikastuttaa elamaamme, luo uusia tuotteita ja suojaa 
tulevaisuuden hyvinvoinnin mahdollisuudet. Mutta tama on 
taydellinen katastrofi luo\aiudelle, jonka terveys riippuu 
jatkuvasta vapaasta ja avoimesta keskustelusta menneiden ja 
nykyisten ideoiden valilla. 

- Vastauksena tahan, haluamme puolustaa omistuksesta 
vapaiden ajatusten ja ideoiden luo van alueen kasitetta. 

1. Liikevoitolla on uusi ihastuksen kohde. Todellakin, voiton 
tavoittelijat julistavat nyt hapeamattomasti olevansa luovuuden 
ja luovien tosi ystavia. Kaikkialla he vakuuttavat "Me tuemme 
ja suojaamme ajatuksia ja ideoita. Luovuus on meidan alaamme 
ja se on turvassa meidan kasissamme. Me olemme luo\aiuden 
tosi ystavia!" 

2. Ystavyyden julistuksiin tyytymattomina nama voiton 
tavoittelijat ovat innokkaita muuttamaan teoiksi mieltymyksensa 
luo\aiutta kohtaan. "Teot puhuvat enemman kuin sanat" 
kapitalistikulttuurissa. Osoittaakseen kiintymyksensa voiton 
tavoittelijat kayttavat lakia, kuten immateriaalioikeuksia, 
vahtiakseen ajatuksia ja ideoita ja suojellakseen niita niilta, 
jotka yrittavat vaarinkayttaa niita. Kun me olemme oiseen 
aikaan kuolleita maailmalle, voiton tavoittelijat ovat 
ke skittyneet immateriaaliomaisuuden keraamiseen 
hammastyttavalla vauhdilla. Yha suurempi osa luovasta alueesta 
joutuu niiden yksinomaiseen hallintaan. 

3. Sen pitaisi herattaa epailyksia, etta voiton tavoittelijat ovat 
nykyaan niin suojelevaisia luovuutta kohtaan, yrittaen 
mustasukkaisesti kontrolloida ajatuksia ja ideoita. Ne vaittavat 

115 



olevansa ystavia, mutta me tiedamme, etta ystavyys ei ole sama 
asia kuin riippuvuus. On taysin eri asia sanoa "Olen sinun tosi 
ystavasi, koska tarvitsen sinua", kuin "Tarvitsen sinua, koska 
olen sinun tosi ystavasi". Mutta miten voimme ratkaista taman? 
Miten voimme erottaa tosi ystavan vaarasta? Missa tahansa 
ystavien valisessa suhteessa pitaisi kysya "Hyotyvatko 
molemmat osapuolet tasapuolisesti?" 

4. Voiton tavoittelijoiden kyltymaton voitonjano selvastikin 
hyotyy ystavyydesta luovan kanssa. Immateriaalioikeuksien 
kayton kautta - tekijanoikeuksien, patenttien ja tavaramerkkien 
muodossa - ajatukset ja ideat voidaan muuttaa tavaroiksi, joita 
voidaan hallita ja jotka voidaan omistaa. Siten voidaan luoda 
keinotekoinen niukkuus. Mutta toisin kuin fyysisia objekteja, 
ajatuksia ja ideoita voidaan jakaa, kopioida ja kayttaa uudelleen 
niiden vahentymatta. Jonkin ajatuksen alkuperaisen keksijan 
mahdollisuus kayttaa ajatusta ei katoa tai vahene, vaikka samaa 
ajatusta hyodyntaisi kuinka moni muu tahansa. Kun luo vista 
tiedon ja ideoiden virroista tulee harvinaisia tuotteita, joilla 
kaydaan kauppaa markkinoilla, on niilla mahdollista ansaita 
paljon rahaa. Ja yha enenevassa maarin immateriaaliomaisuus 
luo voiton tavoittelijoille valtavia rikkauksia. Tosiaankin, 
immateriaalinen tyo (informaatioon, tietoon ja 
kommunikaatioon perustuva tyo) on korvannut teollisen 
tuotannon rikkauden paatuottajana teknologisen kapitalismin 
aikakautena. Immateriaalioikeuksiin koodattu luovuuden ja 
liikevoiton valinen suhde voidaan sellaisenaan nahda taman 
laajemman tuotantoprosessin rakennemuutoksen perustekijana. 

5. Monille meista immateriaalioikeudet herattavat yha 
romanttisia mielikuvia yksittaisista taiteilijoista ja kirjaililijoista 
suojelemassa hengentuotteitaan. Ei siis ole yllattavaa, etta 
naemme immateriaalioikeudet jonain, joka puolustaa luovien 
oikeuksia ja etuja. Ehkapa jonain erillisena ja kaukaisena aikana 
talla harhaanjohtavalla kasityksella oli hieman kunniallisuutta. 
Mutta tama romanttinen nakemys sopii huonosti yhteen 
kapitalistisen 'todellisuuden' kanssa. Luovista on tullut 
tyontekijoita ja heidan tyonantajansa anastaa ja muuttaa 
omaisuudekseen kaikki heidan ajatuksensa ja ideansa. Voiton 
tavoittelijat kayttavat immateriaalioikeuksia kootakseen 
tyontekijoidensa ja muiden luo vat tuotokset. Lisaksi ne 
jatkuvasti painostavat paattajia jatkaakseen 
immateriaalioikeuksien voimassaoloaikaa. 



116 



6. Luova moninaisuus on joutumassa tuottamiensa ajatusten ja 
ideoiden kayton ja uudelleentulkinnan ulkopuolelle. Lisaksi tata 
oikeudellista ulkopuolelle sulkemista tuetaan nykyaan 
teknologisin keinoin. Voiton tavoittelijat kayttavat teknologiaa 
toteuttaakseen immateriaalioikeuksia kayttaen hyvakseen 
koodia, joka ohjaa informaatiota, kommunikaatiota, 
tietoverkkoja ja tietokoneita. Digitaalisten oikeuksien 
hallintaohjelmien kaytto esimerkiksi lukitsee hengentuotteet, 
estaen kopioinnin, muokkauksen ja uudelleenkayton. Nykyisena 
teknologisen kapitalismin aikana julkisia vaylia ajatusten ja 
ideoiden vapaalle virtaukselle tuhotaan tasaiseen tahtiin - 
vapautta kayttaa ja uudelleen tulkita toita rajoitetaan laillisin 
perustein, mutta teknologisia keinoja kayttaen. 

7. Tallainen kehitys on taydellinen katastrofi luovuudelle, jonka 
terveys riippuu jatkuvasta keskustelusta ja vastakkainasettelusta 
menneiden ja nykyisten ideoiden valilla. On hapeallista, etta 
luova moninaisuus suljetaan ajatusten ja ideoiden kayton 
ulkopuolelle. Luovuus ei ole koskaan yhden tekijan tai 
itsenaisen neron tuote. Se on aina velkaa muiden inspiraatiolle 
ja aikaisemmille toille, olivatpa niiden tekijat sitten ajattelijoita, 
taiteilijoita, tiedemiehia, opettajia, rakastajia tai ystavia. 
Luovuus, naiden singulariteettien yhteensulautumispisteena, ei 
voi sailya sosiaalisessa tyhjiossa. Ajatukset ja ideat ovat 
riippuvaisia sosiaalisesta elamastaan, eika voisikaan olla toisin. 

8. Vertauskuvana voidaan kayttaa jokapaivaista kielta, siis 
kommunikaation ymmartamisessa kaytettavien merkkien, 
symbolien, eleiden ja merkityksien jarjestelmaa. Puhuttu kieli 
on yhteista meille kaikille. Merkityksellinen lausahdus on 
mahdollinen vain hyodyntamalla puhujien ja kuuntelijoiden 
kielellisessa yhteisossa vapaasti kiertavia sanoja. Kielta ei siten 
omista kukaan ja se on vapaata. Kuvittele nyt tuhoisa tilanne 
missa nain ei olisikaan. George Orwellin dystopia 1984 - ja 
vapaalle ajattelulle uuskielella tehty vakivalta - auttaa 
havainnollistamaan tilanteen. Samalla tavalla ajatusten ja 
ideoiden hallitseminen ja omistaminen on uhka luovalle 
mielikuvitukselle ja ajattelulle, ja siten myos vakava vaara sille, 
mita me hellitellen kutsumme vapaudeksemme tai 
itseilmaisuksemme. 

9. Aiemmin luova moninaisuus on voinut paattaa joko 
mukautua tai kapinoida vastaan. Mukautuessaan heista tuli 
luovuudeltaan elottomia, kyvyttomia luomaan uusia 

117 



yhteisvaikutuksia ja ideoita, pelkkia niiden yhdenmukaistettujen 
tavaroiden kuluttajia, jotka yha enenevassa maarin kyllastavat 
kulttuurielamaa. Kapinoidessaan vastaan he jatkoivat ajatusten 
ja ideoiden kayttoa immateriaalioikeuksista huolimatta. Mutta 
silloin heidat leimattiin "piraateiksi", "varkaiksi" tai jopa 
"terroristeiksi", rikollisina vastuullisiksi globaalin valtiovallan 
oikeusistuimille. Toisin sanoen, voiton tavoittelijat julistavat 
pysyvan poikkeustilan, poliittisen hatatilan, jolla sitten 
oikeutetaan valtiovallan pakottava kaytto ja repressio vasta 
kriminalisoitua luovuuden kulttuuria vastaan. Kuten aiomme 
esittaa, kasvava joukko luovia on myos siirtymassa kapinoinnin 
ulkopuolelle aktiivisella vastarinnalla nykyista jarjestelmaa 
kohtaan, seka luomalla ajatuksien ja ideoiden virroille 
vaihtoehtoisia luovia alueita. 

10. Kaikelle mita sanomme tulee loytymaan valittomia 
vastalauseita. Voiton tavoittelijat muuttuvat kaannyttajiksi ja 
sanovat, "Jos ei ole luovuuden yksityisomistusta, niin ei ole 
myoskaan mitaan kannustinta tuottaa uutta!" Ajatus siita, etta 
omistusoikeus tietoon ja ideoihin edistaisi luovuutta on 
hapeallinen, vaikka se vaikuttaisi kuinka uskottavalta voiton 
tavoittelijoiden lyhytnakoisesta nakokulmasta. On selvasti 
nurinkurista vaittaa, etta luovuus kukoistaisi kun vapaus kayttaa 
ajatuksia ja ideoita puuttuu. Naureskeltuamme talle 
alyttomyydelle hieman, meidan taytyy kaantaa tallainen ajattelu 
oikein pain. 

11. Taman "kannustinvaitteen" mukaan luovuutta (eli taidetta, 
musiikkia, kirjallisuutta, suunnittelua ja teknologiaa) ei ole 
voinut olla ennen kuin voiton tavoittelijat omistivat ja 
kontrolloivat ajatuksiamme ja ideoitamme. Tama vaikuttaa 
puhtaalta kuvittelulta. Historioitsijat vaittavat yhtenaan, etta 
luo\aius oli hyvissa voimin esikapitalistisena aikana, ennen 
immateriaalioikeuksien keksimista. Mutta voimme silti 
myontaa, etta historia on nykyaan riittavan suurelta osin fiktiota, 
jotta luovuuden j a luovien aikaisempia ruumiillistumia voidaan 
epailla. Ehkapa omituisemmin se tosin merkitsee myos sita, etta 
tallakaan hetkella ei voi olla minkaanlaista luovaa toimintaa 
immateriaalioikeusjarjestelman ulkopuolella. Tama on 
ristiriidassa taman hetkisten kokemuksiemme kanssa 
historiallisina nayttelijoina ja todistajina. Voimme nyt olla 
varmoja sellaisesta minka olemme aina tienneet - luovuus ei ole 
pelkistettavissa immateriaalioikeuksien hyvaksikaytoksi. 



118 



12. Erilaisten luovien medio iden parissa - esim. musiikki, taide, 
suunnittelu, ohjelmistot - toimivien verkottuneiden ryhmien 
keskuudessa on syntymassa uusi globaali Hike. Nama ryhmat 
tuottavat ajatuksia, ideoita ja taidetta, jotka ovat olemassa 
nykyisen immateriaalioikeusjarjestelman ulkopuolella. Nain 
ollen esimerkiksi vapaiden ohjelmistojen liikkeen 
hengentuotteita voivat kaikkia tutkia, haastaa ja muokata. Tassa 
tieto ja ideat jaetaan, kilpailutetaan ja tulkitaan uudelleen 
luovien kesken ystavien tavoin. Kuten kielen merkit ja symbolit, 
heidan ideansa ovat julkisia, eika niita omista kukaan. Nama 
ryhmat ovat muodostamassa todellista vaihtoehtoa liikevoiton 
koneistoa vastaan - rakentamassa uudenlaista luovan elaman 
mallia, joka kuvastaa luovan moninaisuuden voimaa ja haluja. 

13. Tunnustuksen antamisen ja jakamisen periaatteiden myota 
aikaisemmat teokset ja ideat saavat naissa yhteisoissa 
tunnustuksen. Tama tarkoittaa, etta vaikka teoksia kopioidaan, 
muokataan ja yhdistellaan uusiksi teoksiksi, niin silti 
aikaisempia teoksia arvostetaan niiden antamasta panoksesta 
luo\aiuden kokonaisuuteen. Tunnustuksen antamisen ja 
jakamisen periaatteet ovat vapaiden ohjelmistojen liikkeen 
muodostava periaate, ja sen luovan elaman uuden mallin 
kromosomeja, jonka kanssa niiden sosiaaliset kaytannot ovat 
laheisia. 

14. Nama liikkeet ovat ottaneet kayttoon nerokkaan 
"virusmaisen" keinon nimeltaan copyleft, joka toteutetaan 
julkisten lisenssien avulla. Nain varmistetaan, etta ajatukset ja 
ideat eivat ole kenenkaan omaisuutta, ja samalla taataan, etta 
myos tulevaisuudessa naihin ajatuksiin ja ideoihin perustuvat 
yhdistelmat sailyvat yhtalailla avoimina kaikkien kaytettavaksi. 
Kun copyright toimii lain valityksella estaakseen ajatusten ja 
ideoiden muokkauksen ja uudelleenkayton, niin copyleft takaa 
etta ne pysyvat vapaasti saatavilla eika niita voi muuttaa 
tavaramuotoon. Talla tavalla copyright ('all rights reserved') 
kaannetaan jaloilleen copyleftissa ('all rights reversed'). Nyt se 
seisoo luovuuden kannalta oikein pain ja voi jalleen katsoa 
luo\aiutta silmiin. 

15. Uskomme, etta luovan moninaisuuden pitaisi omaksua ja 
puolustaa naiden ryhmien ideoita ja toimintatapoja seka sita 
tahan aikaan sopimatonta luovan elaman mallia, minka kanssa 
ne ovat laheisia. Todellakin, meidan, jotka olemme jo 
aikamoinen joukko, taytyy puolustaa naita ideoita ja kaytantoja. 

119 



Koska vain luova moninaisuus tulee maaraamaan toteutuuko 
tama aikakautemme mahdollinenmuodonmuutos. 

16. Juuri kun voitontavoittelijoiden 

immateriaalioikeusjarjestelman vakivalta pyrkii vahvistumaan, 
todellinen vastavoima alkaa nyt asettua vastatusten sen kanssa. 
Todellakin, naiden verko stomal sten ryhmlen nakemykset ja 
kaytannot volmlstuvat uhmakkaastl, syventyen ja laajentuen erl 
muotolsten medio Iden valltyksella. Ne tarjoavat nakemyksen 
muodostumassa olevasta luovasta alueesta, joka tukee ajatusten 
ja Ideolden vlrtoja, jotka jaetaan vapaastl ystavlen kesken. 
Nama ryhmat tolmlvat tavalla, joka on vastoln alkaamme ja, 
tolvottavastl, mahdolllsen tulevan ajan hyodyksl - luovims on 
vastiistiiksen luomista nykyisyydelle. 

Further Reading 

Adomo, T. Mid Horkheimer, M. (1976) The Dialectic of Enlightenment 

Benjamin, W. (1935) The Work of Art in the Age of Mechanical Reproduction 

Deleuze, G, and Gautarri, F. (1999) What is Philosophy? 

Foucault, M. (1990) The History of Sexuality, Vols 1, 2 and 3 

Hardt, M. and Negri, A. (2000) Empire 

Feenberg, A. (1991) Critical Theory of Technology 

M^in, B. (2003) Against Intellectual Property (http://dMiny.oz.au/free- 

s oft ware/advocacy/againstIP . html ) 

Marx, K.( 1976) Capital 

Marx, K. and Engels, F. (1974) The German Ideology 

Nietzsche, F. (1983) Untimely Mediations 

Rose, N. (1999) Powers of Freedom 

Schmidt, C. (1995) The Concept of the Political 

Stallman, R (2002) Free Software, Free Society 



120 



Norwegian 

Manifest for LibreSociety 

Version 1.5.2 (translation version 0.15b) 

David M. Berry og Giles Moss 

Oversatt avArne Andreassen & Trine B. Andreassen 

En konstellasjon av interesser S0ker na a 0ke eierskap og 
kontroll over kreativiteten. De forteller oss at de har behov for 
nye lover og rettigheter som vil gi dem tillatelse til a kontrollere 
konsepter og ideer, samt beskytte disse mot utnyttelse. De sier 
at dette vil berike vare liv, skape nye produkter og trygge 
muligheten for fremtidig velstand. Dette er imidlertid en 
katastrofe for kreativiteten, hvis sunnhet avhenger av en 
kontinuerlig, fri og apen konversasjon mellom tidligere og 
navaerende ideer. 

- Som svar pa dette, 0nsker vi a forsvare ideen om en kreativ 
sfsere av konsepter og ideer fri fra eierskap. 

1. Profitten har et nytt hengivenhetsobjekt. Profit0rer 
proklamerer na skaml0st at de er oppriktige venner av 
kreativitet og det kreative. Overalt erklserer de: "Vi st0tter og 
beskytter konsepter og ideer. Vi driver med kreativitet og det 
kreative er trygt i vare bender. Vi er kreativitetens sanne 
venner!" 

2. Ikke forn0yd med erklseringer om vennskap, er profit0rene i 
tillegg ivrige med a sette sin hengivenhet for kreaivitet ut i 
praksis. "Handlinger sier mer enn ord" i kapitalistisk kultur. For 
a vise sin hengivenhet, benytter profit0rene juridiske 
mekanismer, nemlig Loven om Opphavsrett til Andsverk, for a 
vokte over konsepter og ideer, og for a beskytte dem mot de 
som pr0ver a misbruke dem. Mens vi sover om natten, er de 
hektisk opptatt med a 0ke samlingene av intellektuel eiendom i 
en forbausende fart. Mer og mer er den kreative sfaere lagt under 
deres eksklusive kontroll. 

3. Det faktum at profit0rene na er sa beskyttende overfor 
kreativitet, og sjalu S0ker etter kontroll av konsepter og ideer, 
b0r skape mistenksomhet. Mens de pastar a vaere oppriktige 
venner av kreativitet, vet vi at vennskap ikke er det samme som 

121 



avhengighet. Det er svsert forskjellig a si: "Jeg er din sanne venn 
fordi jeg trenger deg", enn a si " Jeg trenger deg fordi jeg er din 
sanne venn". Hvordan skal vi l0se denne utfordringen? Hvordan 
kan vi skille en virkelig venn fra en falsk? I enhver relasjon 
mellom venner bor vi kunne sp0rre: " Har begge partnere 
gjensidig utbytte?". 

4. Profit0renes utilfredstilte t0rst etter profit tjener klart pa deres 
nye vennskap med det kreative. Gjennom bruk av 
andsverksloven - i form av copyright, patenter og varemerker - 
kan konsepter og ideer bli konvertert til varer og artikler som er 
kontrollert og eid. En kunstig ettersp0rsel kan saledes bli 
etablert. I motsetning til fysiske gjenstander, kan konsepter og 
ideer deles mellom tlere, kopieres og brukes om igjen uten 
forringelse. Uavhengig av hvor mange mennesker som bruker 
og tolker ett spesielt konsept, er oppfinnerens bruk av konseptet 
ikke overgitt eller redusert. Derimot, mye penger kan genereres 
nar kreative flyt av kunnskap og ideer blir gjort til etterspurte 
varer og produkter i markedet. Saledes gir andsverksloven i 
0kende grad profit0rer enorm akkummulert rikdom. Immatrielt 
arbeid (basert pa informasjon, kunnskap og kommunikasjon) 
har na erstattet den industrielle produksjon som samfunnets 
baerebjelke i den teknologisk kapitalistiske tidsalder. Som sadan 
kan forhold som er uttrykt i opphavsrettsloven mellom 
kreativitet og profitt, bli sett som et kjerneelement i en videre 
strukturell transformering av de produktive prosesser. 

5. For mange av oss gir tankene rundt andsverksloven fortsatt 
romantiske fremtoninger om en ensom artist eller forfatter som 
fors0ker a beskytte sitt kreative arbeid. Det er derfor ikke 
overraskende at vi tenderer til a mene at andsverksloven er noe 
som beskytter rettighetene og interressene til det kreative. 
Kanskje, i en tjern fortid, var der en beskjeden respekt for denne 
villedende fortolkning, men denne sentimentale visjonen om det 
kreative, er utvilsomt utilpass innenfor den kapitalistiske 
"realitet". Oppfinnere har blitt ansatte og etthvert konsept eller 
ide de produserer, er tilegnet og eiet av arbeidsgiveren. 
Profit0rer bruker andsverksloven til a h0ste fruktene av de 
kreative ardeider fra deres ansatte og andre. I tillegg driver de 
kontinuerlig lobby virksomhet for a utvide kontrollen over 
opphavsretten for lengre og lengre tidsperioder. 

6. Det kreative mangfold er i ferd med a bli juridisk ekskludert 
fra a bruke og igjentolke de konsepter og ideer de produserer. I 

122 



tillegg er denne juridiske ekskludering na st0ttet av teknologiske 
metoder. Profitorer bruker teknologi for a opprettholde kopi- og 
patentlover, gjennom den tekniske kode som konfigurerer 
informasjon, kommunikasjon, nettverk og maskiner. Bruken av 
Digital Rights Management (digitale opphavsrettsbeskyttelse), 
for eksempel, binder kreativt arbeid, og forhindrer kopiering, 
modifisering og gjenbruk. I den navserende epoke av den 
teknologiske kapitalisme, blir offentlige avenuer for fri flyt av 
konsepter og ideer, samt utvikling av kreatitiv aktivitet, konstant 
utsatt for forvitring - friheten til a bruke og tolke kreativt arbeid 
blir begrenset gjennom juridisk baserte men teknologisk 
opprettholdte innsnevringer. 

7. Denne utvikling er en absolutt katastrofe for kreativiteten, 
hvis helse avhenger av en kontinuerlig konversasjon og 
konfrontasjon mellon konsepter og ideer fra fortid og natid. Det 
er skammelig at det kreative mangfold blir ekskludert fra a 
benytte konsepter og ideer. Kreativiteten er aldri utelukkende et 
produkt av en enslig skaper eller individualisert geni. Den star 
alltid i gjeld til inspirasjonen og tidligere arbeid av andre, 
uansett om disse er tenkere, kunsnere, vitenskapskvinner, 
Iserere, elskere eller venner. Kreativitet, som et samlingspunkt 
for disse uensartede kilder, kan ikke eksistere i et sosialt 
tomrom. Konsepter og ideer avhenger av et sosialt liv, og det 
kan ikke vsere anderledes. 

8. En analogi kan trekkes med dagligtalen, det vil si, systemet 
av tegn, symboler, gestus og betydninger som vi benytter i 
kommunikativ forstaelse. Talespraket deles med andre. En 
meningsfull yttring er bare mulig ved a benytte ordene som 
tlyter fritt innenfor et linguistisk fellesskap av sendere og 
mottakere. Sprak, derfor, er n0dvendigvis ikke eiet men fritt. 
Forestill deg da en 0deleggende situasjon hvor dette ikke lenger 
var mulig. George Orwell's 1984-dystopia - og volden utovd 
over fri tenking gjennom "nytalen" - hjelper for a illustrere 
dette. Pa lignende vis, kontroll og eierskap av konsepter og 
ideer er en trussel mot kreativ fantasi og tanke, og dermed ogsa 
en alvorlig fare for det vi hengivent kaller var frihet og 
yttringsfrihet. 

9. Tidligere kunne det kreative mangfold velge enten a tilpasse 
seg eller gjore oppr0r. Ved tilpassing ble de lammet, ute av 
stand til a skape nye synergier og ideer, forbrukere av 
standardiserte varer som i stigende grad mettet det kulturelle liv. 

123 



Ved oppr0r, fortsatte de a benytte konspeter og ideer til tross for 
andsverksloven. Bare, da blir de kalt "pirater", "eiendoms 
tyver", tilogmed "terrorister", og som kriminelle trukket for 
retten av globale statsmakter. Med andre ord deklarerer 
profit0rene en permanent untakstilstand, en politisk 
n0dssituasjon, som sa blir anvendt for a rettferdiggi0re statlig 
maktbruk og undertrykkelse av en nylig kriminalisert skapende 
kultur. Som vi snart vil dr0fte, beveger et 0kende antall av de 
kreative seg na utover det a vsere i opposisjon gjennom en aktiv 
motstand mot det bestaende til oppbygging av en alternativ 
kreativ sfsere for fri flyt av konsepter og ideer. 

10. Det vil komme umiddelbare protester til alt vi har sagt. 
Profit0rene vil gi0re det til et politisk sp0rsmal og si: " hvis det 
ikke finnes et privat eierskap over kreativitet, vil det ikke vsere 
noe insitament for a produsere". Ideen om at eierskap til 
kunnskap og ideer fremmer kreativitet er skammelig, uansett 
hvor rimelig det kan synes fra det kortsiktige perspektivet til 
profit0rene. Det a si at kreativitet kan trives mens det mangier 
frihet for a benytte konsepter og ideer om igjen, er klart opp 
ned. Etter a ha smilt litt av denne absurditet, skal vi na snu 
denne tankegangen den riktige veien opp. 

1 1 . I f0lge denne "oppmuntrende" pastanden kan det ikke ha 
vsert noen kreativitet (for eksempel kunst, musikk, litteratur, 
design og teknologi) f0r profet0rene eide og kontrollerte vare 
konsepter og ideer. Dette virker som ren fantasi. Historikere 
erklserer ofte til oss at kreativitet levde og blomstret i f0r- 
kapitalistisk tid, f0r andsverksloven ble utformet. Likevel kan vi 
vedga at historien na er fiktiv nok til at vi kan reise tvil om 
tidligere inkarnasjon av kreativitet og de kreative. Kanskje enda 
mer bissarr, pastanden impliserer ogsa at det ikke kan vsere noen 
kreativitet som for tiden virker utenfor det intellektuelle 
eiendoms regimet, og slik motsi var eksisterende erfaring som 
historiske akt0rer og vitner. Vi kan derfor na vsere sikker pa noe 
som vi allerede alltid har visst - kreativitet er ikke reduserbart 
til utnyttelsen av opphavsrett. 

12. En ny global bevegelse av nettverksgrupper som opererer pa 
kryss av diverse kreative media - for eksempel musikk, kunst, 
design og programutvikling - er na i utvikling. Disse gruppene 
produserer en samling (gathering) av konsepter, ideer og kunst 
som eksisterer utenfor det etablerte andsverk regimet. Pa den 
maten kan det kreative arbeidet innen Fri/Libre og Open Source 

124 



(apen programvare) milJ0ene, for eksempel, bli unders0kt, 
utfordret og modifisert. Her er kunnskap og ideer delt, bestridt 
og tolket omigjen blant de kreative som i en vennskapsgruppe. 
Deres konsepter og ideer, som symboler og tegn innen spraket, 
er offentlige og ikke-eiet. Mot konspirasjonen for profitt er disse 
gruppene i en prosess for a etablere et virkelig altemativ - for a 
konstruere en model for kreativt liv som reflekterer styrken og 
0nsket i det kreative mangfold. 

13. Gjennom prinsippene om attribution og share-alike, blir 
eksisterende arbeider og ideer gitt anerkjennelse i disse 
milJ0ene. Dette betyr at selv om et arbeid kan kopieres, 
modifiseres og bindes sammen til nye arbeid, blir tidligere 
kreativt arbeid verdsatt og anerkjent for dets bidrag til 
kreativiteten som en helhet. Attribution og share-alike er 
grunnleggende prinsipper innen Fri/Libre og Open Source 
bevegelsene, og kromosomer i et nytt modus av kreativt liv, 
oppstar som deres sosiale praksis. 

14. Disse bevegelsene adopterer en oppfinnsom viral plan, 
implementert gjennom offentlig lisenser, kjent som Copy left. 
Denne lisensen forsikrer at konsepter og ideer er ikke-eiet, 
samtidig som de garanterer at fremtidige synergier basert pa 
disse konseptene og ideene er tilsvarende apen for andres bruk. 
Mens opphavsrett (Copyright) opptrer gjennom lowerket for a 
forhindre forandringer og gjenbruk av konsepter og ideer, 
forsikrer copy left at de forblir apent tilgjengelig og ikke 
delfabrikata til komersielle varer. Pa denne maten er copyright 
(all rights reserved) , satt tilbake pa beina av copy left (all rights 
reversed). Den star na rette veien opp for kreativiteten og kan 
igjen se den rakt inn i 0ynene. 

15. Vi mener at det kreative mangfold burde omfavne og 
forsvare ideene og praktisen til disse gruppene og den 
betimelige modellen for kreativt liv som de foreslar muligheten 
av. Selvf0lgelig, vi som allerede er mange, ma forsvare disse 
ideene og arbeidsmetoder. For det er bare det kreative mangfold 
som vil avgJ0re om denne mulige forvandling av var tid blir 
realisert. 

16. Samtidig som volden fra profit0renes opphavsretts-regime 
intensifiseres, har en virkelig motstandskraft na begynt a 
konfrontere den. Visjonen og praktisen til dette nettverk av 
undergrunnsgrupper vokser ulydig i styrke, bade i dybde og 

125 



bredde gjennom forskjellige typer media. De tilbyr et glimt av et 
kreativt felt under utvikling, som st0tter flyt av konsepter og 
ideer, og som er delt fritt mellom venner. De handler pa en mate 
som er motstr0ms til var tid og, la oss hape, for suksess i 
fremtiden - Kreativitet skaper motstand til natiden. 



Further Reading 

Adomo, T. and Horkheimer, M. (1976) The Dialectic of Enlightenment 

Benjamin, W. (1935) The Work of Art in the Age of Mechaiical Reproduction 

Deleuze, G, and Gautarri, F. (1999) What is Philosophy? 

Foucault, M. (1990) The History of Sexuality, Vols 1, 2 and 3 

Hardt, M. and Negri, A. (2000) Empire 

Feenberg, A. (1991) Critical Theory of Technology 

M^in, B. (2003) Against Intellectual Property (http://dMmy.oz.au/free- 

s oft ware/advocacy/againstIP . html ) 

Marx, K.( 1976) Capital 

Mm"x, K. and Engels, F. (1974) The German Ideology 

Nietzsche, F. (1983) Untimely Mediations 

Rose, N. (1999) Powers of Freedom 

Schmidt, C. (1995) The Concept of the Political 

Stallman, R (2002) Free Software, Free Society 



126 



Farsi 



Libre Society 






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132 



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Libre Society Manifesto. Written by David M. Berry and Giles Moss. Translated by ^ 
Kamran Matin. Version 1.5.2. 12-05-04. http://www.libresociety.org 



u^' 



133 



Further Reading 

Adorno, T. & Horkheimer, M, (1976) The Dialectic of Enlightenment 

Benjamin, W. (1935) The Work of Art In the Age of Mechanical Reproduction 

Deleuze, G, & Gautarri, F. (1999) What is Philosophy? 

Foucault, M. {1990) The History of Sexuality, Vols 1, 2 & 3 

Hardt, M. & Negri, A. (2000) Empire 

Feenberg, A. (1991) Critical Theory of Technology 

Heidegger, M. ( 1993 ) ' Building Dwelling Thinking ' . In Basic Writings . 

Machiavelli, N. (1958) The Prince 

Latour, B (1993) We Have Never Been Modern 

Martin, B. ( 2 003 ) Against Intellectual Property ( http: //danny.oz .au/f ree- 
software/advocacy/aqain5t_IP.html ) 

Marx, K. (1974) Capital 

Marx, K. ( 1974) Grundrisse 

Marx, K. & Engels, F. (1974) The German Ideology 

Nietzsche, F . ( 1983 ) Untimely Meditations 

Rose, N. (1999) Powers of Freedom 

Schmidt, C. (1995) The Concept of the Political 

Stallman, R (2002) Free Software, Free Society 



134 



Appendix II (Libre Commons 
Licences) 



Libre Commons 



Welcome to the Libre Commons Licenses. 

The Libre Commons project introduces non-legal licenses for 
common networks of creative production that are radically 
democratic in form. These licenses have been designed to resist 
the corruption of the intellectual property system and the 
symbolic and state violence that maintain it. They do so by 
locating the worldly significance and promise of shared 
creativity and innovation in the inter-subjective recognition and 
absolute democracy of commonalty. This offers glimpses of a 
time and place where we see in other being and things, not the 
limitation, but the realisation of our freedom. In this context, the 
Libre Commons licences project aims to contribute towards 
fostering desire for a more democratic present. 

We should note that these licenses have been written 
explicitly against the presuppositions and caveats of the 
Creative Commons licenses and other similar legal forms. We 
believe that these licenses (un)consciously seek to use culture as 
a mere resource, establishing only a simulacra of a commons 
instantiated in private property, contract and possessive 
individualism, rather than commonalty. Instead of heralding an 
alternative, the creative common movement is a continuation of 
the miserable process by which private property and a neo- 
liberal worldview colonizes all aspects of our life. 

In contrast, libre commons licenses are anti-licenses. 
They are ethical frameworks, chromosomes of social practices, 
laboratories for the future, machines of struggle, radical 
democratic assemblages, plexiform creative practices, rhizomes 
of autotelic afflatus, collections of promises, lines of flight... 
Rather than relying on law, these Libre Commons licenses are at 
route ethical and political. They aim to uncover and radicalise 
the commonalty of shared creative life and communication 



135 



which was always already irreducible to bloodless legal 
frameworks anyway. 

The Creative Commons is currently seeking 
representative status for libre culture. It is trying to establish 
itself as a nodal or obligatory passage point through which all 
libre culture must pass. The Libre Commons, in contrast, rejects 
and seeks to bypass bureaucratic attempts to overcode the 
ethical and political through law. As such, it is hoped that the 
Libre Commons licenses will help to circumvent the claims of 
legal 'experts' and organisations who claim to speak for us in the 
courts of global state power and to assist us in our production of 
creativity. 

We hope that you will use the Libre Commons licenses 
to contribute to widening and deepening practices of 
commonalty and to the network of both counter-power and 
possibility that is libre culture. 



Background 

The development of information and knowledge as important 
new economic resources differs from previous uses which were 
embedded within the commodity itself There has been a move 
away from the importance of material inputs (which previously 
were critical elements in production) to ideas and knowledge as 
contributing significant value to the product, often referred to as 
trade-related intellectual property. Immaterial Labour is based 
on things held in common being commodified in order to 
generate profit. Changes in capitalism mean that profit is 
increasingly reliant on intellectual property, dividing different 
forms of social relationship so capital can benefit. 

Intellectual property is a site of global struggle between 
those who wish to own what is currently free and held in 
common between us (libre culture), and those that wish to 
commodity all areas of our lives for the purposes of profit 
(capital). 

We are also developing a project around the concept of 
Copyhold. 



136 



Choosing a License 

Offering your work under a Libre Commons license does mean 
giving up your copyright. It's a promise to contribute the work 
to the commonalty and towards radical social practices. 

What conditions? That you together with your work 
contribute to a shared resource of radical democracy and 
collective social transformation through social production. 
There are currently two Libre Commons licenses to choose 
from. 

Note: These licenses reject state and international law 
and are predicating on ethical and political practices not on 
law^yers and state violence. 



Res Communes License 



This license declares your work to 
a common that is shared between 
us as human beings. It is therefore 
owned in common with others. 



Res Divini Juris License 



This license declares your work to 
the realm of the gods. Where as a 
moment of clearing it contributes 
to a permanent state of exception 
rejecting state law and liberal 
conceptions of the nation state. 



137 



Libre Commons Res Communes License 



The commons is usually defined as that which is shared 
communally with others. This can, for example, be a resource, 
such as land or water, which is owned by the members of the 
community. The commons has traditionally been limited to a 
local community right and to a physical resource, such as a 
forest. But it has also been used to refer to the space of 
intellectual thought, ideas and concepts (e.g., 'ideas commons', 
an 'innovation commons', an 'intellectual commons', a 'digital 
commons', an 'e-commons', 'the public domain', 'Intellectual 
Space' and so on). The Libre Commons i^e^ Communes Licence 
commits the work that is inscribed with this Res Communes 
license to the shared common that all can draw from and reuse. 



Licence text 

The Res Communes licence is designed to reject a state-centred 
legal construct of a commons (or commons without 
commonalty) in order to create a common which is shared 
between us in collective practices (a rightful commons with 
commonalty). 

The 'Commune' or the 'Commonalty' originally meant 'the 
people of the whole realm' or 'all the King's subjects' as opposed 
to the King, the Nobles or the 'Commons' in Parliament. We 
here refer to the commonalty to refer to the global multitude, the 
people of the whole world. 

1. This work is outside of all legal jurisdiction and takes its 
force and action from the constituent radical democratic 
practices of the global multitude against the logic of capital. 

2. All work that is so inscribed should bear the text '(L) 2005 
Libre Commons Res Communes License'. 

3. As a user of this license the work is available to be shared and 
used as part of a common substrate that is shared between us. 



138 



To Use This License 

Simply append the following statement to your work: 
(L) <year> Libre Commons Res Communes License 

Libre Commons Res Divini Juris License 



Temples, tombs, religious statues and places were considered to 
belong to no one because they were in the service of the gods, 
the impediment to being turned into property was not natural 
but divine. Following Heidegger's call that only a God can save 
us, the God in question is that that can produce a clearing, the 
possibility of another place, making a different world. Drawn 
from a concept of Species Being (i.e. commonalty), works that 
are contributed to the Res Divini Juris are commited to the 
human specis as a whole. Beyond Temporal Law and the liberal 
legal system, we could think of it as a space of the permanent 
state of exception. For the common heritage of mankind. 



License text 

The Res Divini Juris license is designed to so that sacred spaces 
can be opened up, and offer the possibility of contestation and 
debate which can discuss matters of public importance as a 
practical activity. What is endangered under modem capitalism 
is a source of resistance. Treating everything as resources makes 
possible endless disaggregation, redistribution, and 
reaggregation for its own sake. This can be seen as a period of 
deindustrialisation and growth in the communicational and 
semiotic as generators of surplus value in the period after the 
second world war, the informational economy has emerged as a 
moment where capitalism seeks to enclosure cultural texts to 
maximise profit, the shift from the consumption of goods to the 
consumption of experiences. 

Alternatively, background practices work by gathering 
and so bringing things into their own (i.e. uncovering). The 
gathering of local practices around things produces temporary, 
self-enclosed local worlds that can resist the totalising and 



139 



dispersing effects of the flexible and efficient ordering under 
capitalism. 

1 . By using this license you are agreeing to allow your work to 
be shared as a step on the path of revealing. Within the realm of 
the gods, the work will contribute to a shared new world of 
collective practices and networks of singularities operating 
within a non-instrumental and communal life. 

2. All work that is so inscribed should bear the text '(L) 2005 
Libre Commons Res Divini Juris License'. 

3. This license operates under a permanent state of exception. It 
is a result of radical democratic practices beyond the state. 

4. Users of the license are committed to political action and 
social struggle. 



To Use This License 

Simply append the following statement to your work: 
(L) <year> Libre Commons Res Divini Juris License 



140 



Appendix 



CON STE LLATION 




I 




fE 



\ii\iiw libreiaciBti/ ore 



VERSION 1.61 



DAVID M. BERRY & GILES MOSS 



141 



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142 



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This dcvclopmcniis an absoluLC 
ilisiister f()r t;rfiativity, whose hfaltli depKiiii' 
on a free and ongoing conversation and 
confrontation between concepts and ideas from die past 
and present. It is. shamefiil that the creative multitude is being 
frscludcd ffOiYi using the concepts and idea?, that they collectively 
produce, Creativity is never solely the product of a single creator or 
individuated genius. It ahvays owes debts to the inspiration and previouB 
work of others, whether these are thinkers, artists, scientists, 

paramours, listeners, machines or friends. Creativity, as a 
fusion point of these singularities, cannot subsist in a 
social nothingness. Concepts and idea.s ripjiend upon 
their social life — and it could not be otherwise. 



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;V(i analogs i.an be drawn with everyday language: 
thai is, the sys-lcm of signs, symbols, gestures and 
meanings used in communicadve understanding. 
Spoken language is shared between us. A meaningfiil 
utterance is only made possible by drawing on the 
words that freely tircwlate within a linguistic 
community of speakers and listen'^rs. Language, 
dien, is necessarily non-tjwned and free. But imagine 
a devastating situation where this ^-as no longer the 
case. Geoige Orwell's depiction of a 1984 dystopia 
— and the violence done here to freethinbing 
through ncwspcak — helps to iUustrate this. In a 
sitnilar way, the control and ownership of concepts 
and ideas is a grave threat to creative imagination 
and thought, and so also a danger to what we 
aOccti-onatdy call our freedom and sclf-cxprcssion. 



The vce tors and (Jieii lepi esctitjitives will make immediate objections 
to all we have said. The profiteers will turn proselytizers and exclaim, 
"IF THEFIE IS NO PRIVATE OWNERSHIP OF CREATIVITY THERE WILL 
BE NO INCENTIVE TO PRODUOEI" The suggestion that the ownership 
of kiiiiwlcdgp and ideas promotes creativity is a shameful one, 
however plausible it may seem from the myopic perspective 
of profit. To say that creativity can thrive while the creative 
lack the freedom to reuse concepts and ideas Is clearly 
upside-down. After gigg'ling a litflc at this. 
wc should now turn this thinking 
the right way ujj. 



4 



Until recentiy, the creative multitude 

cotild decide either to conform or whel. 

In conforming they became creatively 

inert, unable to create neiA' synergies and 

ideas, mere producers and consumers 

of the standardised commodities that 

increasingly saturate cultural fife. In 

mbelling, they continued to use concepts 

and ideas in spite of vcctoral law 

LaheLed "PIRATES", "PROPERTY 

THIEVES" and even ^TERRORISTS'', rliev 

were then answerable as criminals to 

the courts of global state power. In other 

words, a permanent state of exception^ 

a political emergencyj was declared, which, 

together with the disciplinary norms of a pRgjertised 

control iocietji, was then used to justify and extend the coercive 

use of state power and repression against an increasingly criminalised culture of crcatiidt;^ 

But as we wiU soon discuss, a growing number of the creative have now moved beyond both 

conformity and rebelion, through an active resistance to the present and the creation of an 

alternative creative field for flows of non-owned concepts and ideas. 



L I B Pv E 



A-/ 



XOCIET\f 



DQUID 



BERRy e EILc3 



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143 



^ 



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Actording to this ''INCENTIVE" daim, there cannut have 
been any creativity (i.e., art, iirasic, literature, design and 
tcchnolo^) be/ore the ownership and control of our conccpTs 
and ideas. This seems like fanlasy. Historians Trequently 

profess to us that ereativity was alive and well 
in pre-capitalist time?, iefau the ad^'ent of 
intellectuid property laws. But even so, 
we might concede that history is now 
enough of a fiction to raise sonic doubt 
about the fbrtn of previous incarnations 
of creativity and the creative. The 
incentive claim, however, is even more 
risible when it implies that there cannot 
be any creativity £utTenliy operating 
outside of the -wjctoral property regime. 
This of course contradicts our current 
espeiienccs as historical actors, and 
witnesses. Wc can now be siire of 
something that wc have always already 
known — creatKaty \%- irreducible to 
the exploitiitioii of intellectual property 



Through die principlcH of atinbutwrt and 
share-alikt, existing works and ideas are 
given recognidon in these coniniunities. 
This means that wJiile creative work 
may always be copied, modified and 
jynthesised into new works, previous 
creative ivork is \"alued and recognised 



b>' tlie communif>' for its contribution 
to creadvity as a whole (and rightly so). 
Attribution and share-alike are constitutive 
principles of the Free/Libre and Open 
Source movements, and chromosornes 
of the new mode of creative life that 
dieir social practice intuiiates. 



LIBRE 



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TkesK drcwics uf rxiuiitcr-powTT 
bring forth the soope for 
resistajicc, the capacity 
for agency and thns the hope 
and promise of future worids. 
When linked together, machines 
of struggje are able to tocfront 
and chaJlenge the vectoral regime 
aa a real force, collectively aj-med against 
ihc icrriLcirializing elTecis of vectoraJisl capiial. Circuiis of counlcr-povvcj' 
provide the conditions and capacity for transformative constitutive action. 
Such circuits are but one moment of the potential power of the creative 
niultitude as organised and effective transformative agents. 



^'='%. 

tiKlcrd, vn; — wliii air jilri"aiiy 
quite a crowd — must defend 
the idea and practice 
of non-owned creativity. Por it 
is only the creative nrultitude, when 
oiganiaed and enrolled into circuits 
of counter-power, who will determine whether a possible transformation 
of our times is realised. This is a movement tha-t is acting 'counter to our 
time and, let us hope, for the benefit of apo-ssibk time to come' ['S], 
— Creativity is creating resistance lo Ihe present. 



^ 



FURTHER READ me 



[1] Vlrpo.P.t Hardt 1199BJ 

\2] Vfrssmrilun^ IMeidegser 19ni 

{i:L}2tf04Tlie Libre5QCJet]r.Drghrf^nifestL}ianiade dvail^db 
undtrthe AXtributisn-share-alikecre-atiwecomman; 
Litense 1.5. f rem iviiiv.tr«ativewirrrons.i"rg. froviilin 

thi( no tree i^ intliid«dj thh m3nif«5tQ may b« freely 
distributed end published. 

Downlctailahl^PDFsand tr3n!lJtlon;3V3i!3b!»9t 



www.libresociety.org 



t^rnoQrjphii: design: 



lorno, T.I Horldififlisr, M. 

Benisntin, W. 

D9l4U!t.G. C Gautarri.F. 

FOUCJUlt, M. 

Hardt. U. I HCigri.A. 

F««nb^r^. A. 

Heidegger. M. 

NarhiaveMI. u. 

Latour. B. 



JieUMlie.F, 
Silimidt.C, 



11976J TWDlalffticofEnlightfrrnent 

[193EI Tti«VlDrliaf trtin theAgEdf MecnanicsllJEprodiictioii 

ligssi iMli3ti!PhilD!opliy! 

|1990|[ Tli«His1:ori/orEsnj3litj,Volil, 2<:3 

[20001 Empiro 

11993) critkal TheorKOf Tfclmorlogy 

[19931 'Biiiidin'gDiveiiingThinliing', in Basic ivritinas. 

[issei Tl^«pririi:« 

[1993) vreHavelNeifrBeenModern 

[2Q03I A.g^inat IntellcLLu^t PrDperty 

( li Mp; / / dann j.oi. au / f rte -s of [ n 3 ce / i dv tat y / a g s i n i t_l P . Ii t rt 

[19741 iiviinl 

[19 7 J) &ruikdri;:c 

[1974) TI>«Cerinjn [de-oiogj 

[1393) UntimsljUeditaliOr! 

[1999) Pou^r^ DrFrc«d»ni 

[199E) TliieConteptjf theDoliticai 



^taliman. R [2002) Frvv sntLwar?. Fr«« socmly 



4 of 4 



145 



L I ]8 1 E 

libr9JD[i9ti/Drc 5^ O E I ET\J 



We are told that these interests 
require new laws and rights that 
will allow them to control concepts 
and ideas and protect tlicm froni 
exploitation. 'I'hey say that this will enrich our 
lives, create new products and 
safeguard the possibility of future 
prosperity But this is a disaster for creati\at>' 
whose health depends on 
an ongoing, free and open 
conversation between ideas 
from the past and the present. 



DQUm n Eg^Ry l: Ei:g3 PnD33 



In response, we wish to 



DEFEND 



the idea of a creative field of 
concepts and ideas that are 

FREE 
FROM 

OWNERSHIP 



146 



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155 



Index 



Action, 15 
aesthetic, 18 
affect, 18 
Anti-Oedipus, 57 
Arendt 

Hannah, 12 

Hannah, 82 
art, 15 

artificial scarcity, 24 
artist, 15,61,66 
associational democracy, 98 
Attribution, 8 
autonomy, 21 

B 

being- in-the-world, 105 
Benjamin 

Walter, 20 
Benkler 

Yochai, 12 
Bentham 

Jeremy, 96 
binaries, 87 
black-box, 87 
blog, 16 
blogging, 16 
bourgeoisie, 26 
bureaucrats, 20 



capital, 30 

capitalism, 6, 56, 104 
capitalist, 5 
challenging-forth, 65 
Christianity, 36 
code, 13, 16,56,58,61,65,97 
coder, 62 
coders, 57, 61 
code-society, 57 
commodification, 19, 22 
commonalty, 30, 31, 32, 33, 80 
commons, 17, 22, 23, 28, 31, 80 



commons-based peer production, 12 

common-wealth, 82 

communication, 3 1 

communist, 29 

community, 36, 41 

computer code, 94 

concepts, 4, 23, 24, 26, 60 

connectionist capitalism, 108 

consumer society, 15 

control society, 27 

conviviality, 65 

copyfight', 37 

copying, 6 

copyleft, 9, 21,22, 35, 87 

copyright, 5,9, 13,21,31 

copyrights, 27 

counter-power, 9 

craft, 57 

craftsmanship, 15 

creative, 18, 29 

creative alliances, 9 

Creative Commons, 28, 29, 30, 31, 33, 

83, 107 
Creative Industries, 20, 32 
Creativity, 4, 6, 7, 10, 18, 21, 33, 82 
Critical Software, 16, 100 
cyberspace, 66 



D 



Data security, 92 
database, 106 
Deleuze 

GiUes, 27 
democracy, 34 
digital, 24 
Digital Millennium Copyright Act 

(DMCA), 26 
Digital rights management, 6, 25, 27 
disciplinary society, 27 
DNA,33 
docile bodies, 14 
dwelling, 65, 106 



E 

E-govemment, 84, 99 



enchantment, 30 

enclosure, 26 

enclosures, 6 

End User License Agreement (EULA), 

93 
Eric Raymond, 88 
e- voting, 95 
ex mhilo, 18 
exploitation, 4, 21 
expression, 24 



information, 30 
information age, 30 
intellectual property, 8, 19, 28 
intellectual property law, 5, 24, See 
internet, 12 



Jean Baudrillard, 66 
John Locke, 13 
journalists, 65 



Foucault 

Michel, 27 
Fox News, 26 
free culture, 16, 104 
Free software, 12, 16, 35, 64, 84 
Free Software Foundation, 87, 97 
Free/Libre and Open Source, 9, 25 
free/libre and open-source, 32 



gathering, 8, 105 

General Public License, 13, 31, 87 

genius, 6, 19 

GNU/Linux, 39, 88 

Gods, 57 

govemmentality, 33 



H 



Habermas 

Jiirgen, 97 
hacker, 67 
Hacker Ethic, 12 
hackers, 40, 88 
hacking, 27 
Hacklabs, 100 
haecceities, 64 
Hakim Bey, 16 
hermeneutics, 65 
hobby, 15 
Homer, 15 
humans, 63 
hyperreality, 66 



I 



ideas, 4, 23, 24, 26 
immaterial labour, 5, 30 
incentive, 8, 29 



Labor, 13 
laboring society, 1 5 
labour, 5, 30 
landlords, 5 
language, 7 
Law, 33, 56 
lawyers, 65 
Lessig 

Lawrence, 28, 29, 94 
libre, 69 

Libre Commons licences, 82 
Libre Commons Res Communes 

Licence, 78 
Libre Commons Res Divini Juris 

Licence, 78 
libre culture, 30, 32, 33, 82 
libre society, 108 
licences, 29 
life world, 12 
Linux, 16 

M 

machines, 58 

Machines of struggle, 9, 66 

market exchange, 21 

Marketing, 20, 32 

masses, 14 

Matrix 

Film, 56 
media corporations, 32 
media industries, 29 
microcode, 56 
monsters, 63 
multitude, 6. 7. 8. 10 



N 



nation state, 33 



necessity, 15 
network, 31, 33 
network firms, 9 
network states, 9 
network wars, 9 
networks, 9,21,22 
Nietszche 

Friedrich, 35 
Nomadic, 66 
nonhumans, 63 
non-proprietary software, 90 
novelty, 20 

o 

office-factory, 13 
ontic, 105 

open government, 98 
open source, 16, 21, 84 
Open Source Movement, 87 
open-source, 69, 97 
order of discourse, 90 
Orwell 

George, 7 



Parliament of Things, 33, 43, 83 

participatory design, 85 

patent, 13 

patents, 5, 27 

philosopher, 61, 67 

physical objects, 5 

piracy, 27 

pirates, 7 

plan(e) of organisation, 31 

Plato, 14, 59 

poeisis, 57 

poetry, 57 

Poiesis, 14 

political, 14 

postmodern, 21 

postmodemity, 56 

PR, 32 

precept, 18 

private, 30 

private ownership, 7 

privatisation, 19, 32, 33 

productivist ontology, 30 

Profit, 4 

profiteers, 4, 33 

programmers, 13 

property, 2 1 



Proprietary, 87 
public, 15,30 
public domain, 28, 29 
public licences, 9, 21 
public space, 82 

R 

radical democracy, 81 
rentier, 27 

res communes, 23, 31, 77 
res privatae, 23, 32, 39 
res puhlicae, 32 
res publicce, 23 
res umversitatis, 39 
resentiment', 36 
resistance, 1, 9 
reuse, 6 
rhizomatic, 57 
Richard Stallman, 88 
romanticism. 18 



scarcity, 5 

schizophrenic, 61, 64 

share-alike, 8 

simulacra, 107 

slaves, 14 

social factory, 5 

society-code, 57 

society-factory. See Social Factory 

software, 13 

software security, 93 

source code, 15, 87, 92, 96, 99 

Sourceforge, 64 

speech, 15 

Stallman 

Richard, 31 
standing reserve, 30 
standing-reserve, 106 
state of exception, 7 
state power, 7 
subjectivism, 18 



technical sphere, 97 
technological capitalism, 5 
technologies of the commons, 27 
technology, 6, 16, 62 
temporary autonomous zones, 16 
terrorists. 7 



Thomas Jefferson, 23 

Trade Related Intellectual Property 

agreements, 25 
trademarks, 5 
Transparency, 94 



Versammlung, 8 
violence, 15 
viral. 2 1 



w 



u 



ubermensch, 36 
unconcealment, 57 



war, 58 

war machine, 66 

work, 13 

World Trade Organisation, 26 



value -sensitive design, 99 
vectors. 5, 6 



About the Authors 



David M. Berry is a lecturer in the Department of Media and 
Communication at Swansea University. He writes widely on issues of 
code and media theory and his other works include: Copy, Rip, Burn: 
The Politics ofCopyleft and Open Source, 

Lee Evans is a doctoral student at the University of Sussex. He is 
interested in theories of civil society and civic republicanism in 
International Relations. 

Giles Moss is currently conducting research at New College and the 
Department of Politics and International Relations, University of 
Oxford. His research interests span the fields of social and political 
theory, but are focused, in particular, on contemporary theories and 
emergent practices of democracy. 

Joanna Pawlik has submitted her doctoral thesis at the University of 
Sussex, which examines the interaction of postwar French and 
American avant-gardes, with a particular emphasis on Artaud and 
Surrealism. 



About Pygmalion Books 



Pygmalion Books is a modest, non-profit publishing house that would 
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mode and instead attempt to transcend the hackneyed panache of co- 
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