Random thoughts: I had no idea that Unix got its name from “eunuchs,” describing that it had been “cut down” from a previous OS, Multics. I was struck by the commonality of fannish language/commitments, such as the deep enjoyment of conventions that bring together people who usually only communicate online, or the developer who said:
What really grabbed me was the community. That was what really grabbed me, and you have to understand at the time, it was a completely foreign notion. [ . . . ] I had stumbled on this group of people that were interested in the same things that I was interested in that had, basically for no particular reason, built this thing, this operating system, and it actually worked, and I could do my work in it and I had not paid a dime for it; they did not ask anything of me when I downloaded it or used it.Coleman also discusses the different political orientations at work, comparing Eric Raymond’s desire to make open source compatible with the business world to Richard Stallman’s anticapitalism. Raymond argued that economic success would “allow [hackers] to reap enough social capital so that they could escape a cultural ghetto of marginalized nerdiness.” Meanwhile, a conflict with copyright as it had been understood was brewing, and open source partisans had to learn how to articulate legal arguments as they attacked copyright control, wrote their own licenses, and turned copyright back on itself to preserve the openness of their work through open source licensing. Here Coleman posits a particular orientation towards legal interpretation, arguing that
the skills, mental dispositions, and forms of reasoning necessary to read and analyze a formal, rule-based system like the law parallel the operations necessary to code software. Both, for example, are logic oriented, internally consistent textual practices that require great attention to detail. Small mistakes in both law and software— a missing comma in a contract or a missing semicolon in code— can jeopardize the system’s integrity and compromise the author’s intention.But this is not nearly as true in law as it is in software—computers are so dumb that they only do what you tell them, but humans, including judges and other legal actors, have intentionality. They are capable of doing what you meant them to do, especially if that’s consistent with other commitments they have. And in DMCA cases, one of Coleman’s case studies, several courts have done exactly that, refusing to apply the DMCA to attempts to control markets for garage door openers and printer toner cartridges even though the language of the law on its face would cover them because they contain copyrighted works. Nor do many laws—say, for example, what constitutes a derivative work or even boundary cases of fair use—have the clean edges of things like copyright duration, where there is in fact a right answer independent of one’s other commitments (albeit an answer that’s often aggravatingly hard to come by).
What’s interesting about Coleman’s explanation, though I have no doubt she’s accurately reporting how hackers experienced the legal encounter, is that they were working not in a right-answer area but, in wording licenses, regularly confronted the legal ambiguities that are also bog-standard in law. For example, the popular Creative Commons Noncommercial license doesn’t define “noncommercial,” and it turns out that its users are deeply divided on what that might mean; e pur se muove.
Thus, I’m even more struck by Coleman’s observation that, while learning the law often leads to cynicism among hackers and non-hackers, hackers weren’t frustrated by the process of learning in the way non-hackers often are. I take it that they felt that the apparent arcana weren’t all that different from the specialized language and language-rules they already learned. But taken too seriously, that treatment of law as code in the sense of computer code leads to people deciding that the income tax is unconstitutional, or that they can’t be tried in courts that display flags with fringes on them, or that they can copyright their own names. Still, most people end up understanding that there’s more than one way to do things in law, and that input and output are not solely determined by the language of a statute or contract.
Coleman addresses the spread of F/OSS, which she argues was enabled by hackers’ refusal to engage with standard conservative or liberal ideologies, avoiding polarization and ghettoization. And yet that goes only so far. Of Larry Lessig, she says, “Part of [Lessig’s] success can be attributed to the fact that he, like F/OSS geeks, is reluctant to portray his work as political; instead, he prefers to articulate his position either in terms of a constitutionality that sits above the fray of politics or in terms of the importance of cultural preservation.” Except not really! Lessig recognized the severe limits of that strategy post-Eldred, when he made an explicitly political turn and proclaimed that there will be no real legal improvement, in copyright or otherwise, without reform of the process of buying elections.
Indeed, to me, Coleman’s discussion of Lessig skirts the trap she so clearly identifies: the idea that online production can happen without organization/institutions, which as she says was an attractive meme because it “perfectly meshes with, and thus supports, dominant understandings of freedom, agency, and individualism.” She specifically points to Clay Shirky’s Here Comes Everybody, with its subtitle The Power of Organizing without Organizations. “Although many of his observations about digital dynamics are illuminating, and many of the examples he draws on, such as meet-up groups, remain informal, many others that he discusses, such as Wikipedia and Linux, were by 2006, organized, and as such, some type of organization.”
I’d extend this to politics: at some point, if you want your organization to work, you have to get in the game, and that means showing up in political contexts, whether that’s before an administrative agency, in court, or before Congress. And open source organizations have done so—litigating in the US and other countries to enforce an open source license; participating in Brazil’s attempt to go officially open source, etc. (Obviously I have an agenda here too—not for nothing is it the “Organization for Transformative Works.”) Coleman explains how certain kinds of organizations can maintain that they don’t fit along the Right/Left axis, and thus that they aren’t political, but as she notes, the “and thus” is itself a political claim, and not ultimately a very convincing one (to me; she leaves this to the reader).