The Public Life of Copyright Law.

This post is by Linda Roland Danil, who is one of our PhD associates. 

In a paper given as part of the first workshop in this series,  Anne Barron argued that there are two seemingly opposed forces currently shaping global copyright law and practice. Firstly, there is the internationalization of capitalism’s drive to accumulate through the mode of dispossession of formerly common resources, which in the context of Barron’s paper referred to intangible resources. This accrual through dispossession is enforced by the expansion of global copyright norms, and supplemented (and even supplanted) through the implementation of technological locks and licensing agreements that major firms create in order to further subject the intangible assets to regimes of control and the logic of profit-accumulation. These private regimes are further advantageous in that they are removed from public oversight and control. These tactics are led, Barron argued, by an agglomeration of corporations in the entertainment and software industries, and as she provided:

“All of this is producing a privatization of previously public goods that many commentators have compared to the forced enclosure of common lands with the transition from feudal to post-feudal forms of landholding.”

The drive to protect copyrighted material is presently effected not just by right-holders seeking to prevent the unauthorized use of copyrighted material: as Barron argued, “right-holders are now aiming to shape the networked environment itself so that traffic to and from suspect sites and users is disrupted, or blocked altogether”, through a ‘three-strikes’ regime enacted by Internet Service Providers (ISPs) towards infringing subscribers (a regime that begins with a warning letter, and culminates in the disconnection of the service if the subscriber ignores the ISP’s warnings). The strategy of controlling Internet-traffic, and by proxy, the connections made in cyberspace, Barron argued, is “[…] oriented towards enclosing and propertising the digital networked environment itself.”

The second force that is presently shaping global copyright law and practice is that of the counter-movement that has arisen in response to the corporate control of intangible assets, within the shift from the Fordist to a post-Fordist capitalist context. This movement is collective in nature, and based on the premise of communal ownership of knowledge and cultural resources, and thus governed by the overarching principle of free and open source software (FOSS). Barron was concerned, however, by the paradox that underlies FOSS, which is that FOSS developers institute the principle of accessibility through the same legal mechanisms that allow for the source code to remain exclusive in other software programs (and thus subject to proprietary control). As Barron argued, such developers forego the option of placing codes in the public domain and renouncing their copyrights in them, and instead, license their copyrights in a variety of subversive ways, such as primarily by recognizing a greater range of user freedoms that those allowed for with proprietary copyright licenses (consider the most popular example of this initiative, Creative Commons1).

It is within this context that Barron’s paper introduced the public (or the political) into the sphere of the private (i.e. copyright law), and highlighted the important fact that the issue of copyright law, although it may at first strike one as being essentially a private law issue, is actually incredibly political (and thus public) in nature. The inherently capitalist, profit-driven motives of copyright laws are subverted in favour of anti-capitalist, and at their most radical, mandated anti-exclusionary copyleft practices. Further, copyleft licensing practices as political tools rely on intellectual property rights for the efficacy; copyleft practices do not abolish copyrights, but rather, re-appropriate and re-work them, and thus, the private remains inherent within the communal. Copyleft licensing practices also impose obligations onto others that the terms of licences must be unequivocally perpetuated in modified versions of the work, and in this way, impose obligations in the same manner that copyright end-user licensing agreements do. In addition, and conflictingly, rather than largely destabilizing copyrights, the FOSS movement has actually further enabled them. As Barron argued:

“The expansion of this space has arguably enabled copyright norms and practices to penetrate deeper into the quotidian processes of cultural production than would otherwise have been the case, thereby strengthening the grip of the notion that informally organized domains of communication can be sorted into objects of property and allocated to individuals.”

Barron introduced doubt into the idea that through initiatives such as FOSS or a copyleft clause, capitalism could in some way be radically undermined. On the contrary, capitalism has turned the tables and turned even that which potentially threatened it into a profit-making opportunity, by cannibalizing the techniques forged by FOSS developers and utilizing it for its own ends. Capitalism and autonomous Marxist arguments emerging from thinkers such as Hardt and Negri therefore paradoxically find themselves on common ground, championing the same causes of openness and sharing. It is this paradox, alongside the FOSS movement’s tendency to problematize, and subject to public debate and remaking the technical infrastructures that govern communal digitally-mediated arenas, that has concerned Barron’s recent and current work in the field. The question of whether copyleft licensing is therefore a challenge or an abettor to capitalism led into a more in-depth discussion of Hardt and Negri, Gunther Teubner and his work as inspired by Luhmann’s systems theory, and the similarities and differences between them.

Barron also provided an incredibly thought-provoking assessment as to the consequences of the infiltration of (capitalist) economic rationality into cyberspace (which amounts to nothing short of the violation of the rule of law and effectively constitutes totalitarianism):

“Oriented towards enabling every online exchange to be monetised, it must permit individual users to be identified, their movements to be tracked and every use of content to be controlled. It tends towards a level and intensity of behavioural regulation impossible to achieve in the offline world, and in so doing it compromises rights of free movement, association, expression and privacy that are guaranteed in that world. Further, the rules embedded in this code are so rigid and formal that they allow no room for argument in the process of application, and make no space for the ‘reasonable illegality’ that is an abiding feature of traditional legal orders; they are also self-enforcing. In effect, the code that now controls much of the Internet represents a fusion of law-making, law-application and law-enforcement, and thus the negation of the principle mandating the separation of these functions.”

In conclusion, Barron’s paper not only provided a fascinating introduction into the nature of contemporary copyright laws, but also introduced anti-capitalist free software counter-movements (and the paradoxical nature inherent to them) and allowed for the potential to explore different ideas as to how best conceptualize these counter-movements and their potential governance, such as through autonomous Marxist arguments emerging from Hardt and Negri, and as inspired by Teubner.

1 http://www.creativecommons.org

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