(working through a massive headache this morning, so apologies for any weirdness)

E. Gabriella Coleman's Coding Freedom (2013) provides an ethnography of hacker life that details the intricacies of hackers' relationship to various components of (neo)liberalism. She argues that in order to work against the expansion of intellectual property law, F/OSS programmers use the liberal notion of free speech, thus revealing the tensions in our own political/ethical institutions and supposedly cherished values of the right to protection of private property and thee free expression of ideas.

Two elements of this argument in particular allowed me to have something of a cohesive understanding of how hackers are able to maintain this kind of ethical standard. The first element is the breakdown of hackers' understanding of code as speech. Coleman demonstrates how hackers define "free" in various ways -- from the "free to consume" sort of free (free beer) to "free to edit and share" (free speech). According to Coleman, hackers consider code to be speech because of the "difficulty of drawing a sharp line between functionality and expression in software” (174). She quotes extensively from Seth Schoen's decryption poem (which serves as a translation or "re-creation of the original DeCSS decryption software programmed by Johansen) to show his understanding of exactly how code is speech:

Asserting both that "all is number" and that "mathematics is full of stories," Schoen asserts through this work that code, while functional as mathematical formulae, also works to form an expressive narrative, though laypeople often don't visualize it that way. Schoen and other hackers logically argue that if code is expressive, and speech is expressive, then code is speech and should be protected under the law. Further, this protection should take precedence over intellectual property law.

Another element that I found intriguing is how hackers attempt on some level to circumvent the notion of the romantic author. Coleman argues that hackers, in addition to experiencing the daily frustrations of programming code, often experience what she labels the jouissance of "Deep Hack Mode" (13). Hackers experience a pleasure in hacking so intense that they tend to lose any sense of self. This loss of self then seems to allow the hacker to let go of the notion of individual ownership of the idea and thus ensuring that hackers as a group do not feel the need to insist on economic incentives to create/share knowledge nor possibly even credit for their code. I am not sure whether I am interpreting this process correctly, which is something we could discuss. But Coleman says,

In particular, how does this notion of hacker jouissance and the loss of autonomy square with hackers' apparent commitment to "the organizational ideal of meritocracy, a performance-based system that applauds individual skill, encourages respectful competition between peers, and sanctions hierarchies between developers” (120-1)?

With thanks to Kim's helpful links, I also wanted to consider the notion of Creative Commons licensing and how that might be thought of from a hacker point of view. From the Creative Commons website:

So, two things here. First, authorship is preserved through credit of the work. Second, the license cannot be used to make money from an expressive endeavor that uses this licensed work. One can create works with other people’s work and distribute that work for free, but only the “author” has the right to make money from the original product (if I understand this correctly). Where would hackers stand on this?

Finally, with regard to traditional knowledge circulation: if hackers value the free exchange and expansion of knowledge, would they then support a system of traditional knowledge circulation that places protections (i.e. exclusions) on how that knowledge circulates online, even if such protections are for the benefit of indigenous communities who have little protection otherwise?

Rachel and I are the facilitators for this week’s reading. Since I will be focusing my facilitation on the introduction and Part I of the book, my analysis and discussion questions engage primarily with these sections. I plan on actually using these discussion questions in class, so feel free to comment on or revise them.

In Coding Freedom: The Ethics and Aesthetics of Hacking (2013) E. Gabriella Coleman presents an ethnography of hacking as a community activity and material practice. Based on field work conducted in San Francisco in the early 2000s, Coleman investigates the “material, affective, and aesthetic dimensions of hacking,” particularly how these dimensions relate to issues of intellectual property. Based on her anthropological analysis, she shows how hackers have cultivated a legal consciousness and participated in the negotiation of intellectual property rights. Ultimately she argues that,

Coleman reveals and celebrates F/OSS hacking practices, which in her conclusion she suggests “challenge economic incentive theory” and “work as a form of cultural critique” (p. 200). It seems that her sympathies lie with the commons movement and academics like Lawrence Lessig, who advocate for the easing of intellectual property restrictions to protect the public domain. After reading the more nuanced examinations of IP issues in Boyle and Coombe (who both steered away from making broad claims about whether the IP regulation should be either strengthened or loosened), I find that I am suspicious of Coleman’s assumption that increasing the public domain is automatically and always desireable.

The first section of Coding Freedom seeks to situate the material practice of hacking historically. The first chapter paints a general sociological portrait of the free software hackers Coleman studies firsthand, focusing on the community interaction online and at face-to-face gatherings like the Debian developer conference. The second chapter offers a history of hacking that is drawn from important documents, legal rulings, and the actions of a few key players like Richard Stallman.

While I felt that the second chapter on historical context was an important foundation for Coleman’s later arguments, the first chapter struck me as problematic in its representation of the “typical” hacker. I know that many of you are much more familiar with anthropology than I am, but it seemed to me that despite Coleman’s disclaimers, the first chapter was nothing more than a compendium of popular stereotypes about hackers (see p. 25-27). Hackers are male. Hackers come from wealthy families. Hackers start hacking early in life. Hackers eventually come to believe that “access facilitates production.” While acknowledging that this representation of hackers is a “narrative,” Coleman fails provide a critical reading of or critical distance to that narrative. For instance, her explanation of why she makes the typical hacker in this narrative male consists of a mere few words in parentheses: “and I use ‘he’ because most hackers are male” (p. 26). Her failure to provide an analysis of this narrative leads her representation to perpetuate what Lyotard has called a grand narrative.

 Discussion questions:

1.    Since we are at the point in the semester when we need to start planning our projects and thinking about potential research questions and methodologies, I thought it would be an interesting exercise to “revise” parts of Coleman’s book. So far, it seems to me that this book in its structure and methodology is more similar to what Dr. Christen is looking for in our seminar papers (on a much smaller scale of course). So the question is this: how might you revise Coleman’s ethnographic account of hacking? For instance, how might you represent a sociological portrait of hacking through a series of little narratives rather than a single and uncritical grand narrative?

2.   Coleman, Bolye, and Coombe end up setting together for lunch at a conference and having a conversation about the politics of intellectual property. What would they say to one another? Where would they establish common ground? Where would their views come into conflict?   

Rosemary J. Coombe's The Cultural Life of Intellectual Properties (1998) addresses the connections between hegemonic Western legal discourse surrounding intellectual property and the cultures of commodified images. As law is thought of as neutral and abstract (disembodied) and when cultural scholars were (are?) ignoring the impact of law on daily embodied lives, Coombe argues that law and culture are not discrete, bounded entities, that they shape each other and affect how subaltern communities attempt to produce agency.

One of Coombe's goals is to use examples to disrupt the notion that law is a neutral agent and emphasize its structure as rooted in European Enlightenment ideals, which include the notion of the Romantic author and an object in the public realm being considered as private property. She also uses these examples to show how some meaning-makers are able to use the forms embedded in intellectual property law to produce a kind of “counterpublicity,” which involves “articulations that deploy consumer imagery and the bodily impact of the trademark to make the claims of alternative publics and other(ed) national allegiances (184).

Among the various components of this necessarily complicated argument, Coombe brings up points of contention that anthropologists and cultural studies scholars (and, since I’m a folklorist, folklorists) have been arguing for decades: authenticity, tradition, liminality. Coombe works to break down the notion of authenticity, claiming (as other contemporary anthropologists/cultural studies scholars/folklorists are doing) arguing that claims to authenticity “embody contingent concepts integral to Western histories of colonialism and imperialism” (215). In Chapter Five’s discussion of the debate over the ability of white authors in Canada to “create” Native (or other subaltern) characters in fictional works, the arguments against “censorship” and “free expression” on one side come up against arguments about lack of authenticity on the other. But both, Coombe argues, perpetuate the notion of culture as a unitary concept as well as of ideas (or expressions of ideas) that can be “possessed.”

Also with regard to authenticity, Coombe notes that arguments within legal constructs that revolve around the notion of authenticity both essentialize and erase living Native peoples (a practice with a long history in American myth making). Thinking in particular about the Washington Redskins and other professional sports teams, the logos and behaviors of spectators perpetuate a unitary notion of “Indian” that effaces not only the issues Native communities efface but their very bodies. While the battle over sports team logos has been going on for some time now, Coombe notes that, on the professional level, not much real progress has been made, despite the notion of counterpublicity that could potentially produce negative publicity for sports teams owners as well as keep the discussion of racism against Native peoples in the public eye (199).

For Discussion:

How can we connect Coombe’s ideas about authorship to Boyle? Specifically, are there differences in how they conceive of romantic authorship historically? How does Coombe’s use of ethnography complicate or expand upon the critical theory of culture and law that she discusses?

Coombe discusses the conflict behind the methodology of using “proprietary counterclaims” (204) as a way of attaining some form of agency in dealing with the hegemonic Western legal system. Framing these counterclaims as theft of cultural property rather than “assertions of harm” (204) becomes a case of trying to tear down the master’s house with the master’s tools. Coombe notes Handler as saying that such a strategy of using “a language that power understands” is a necessity in order to gain any political power (or even presence) at all (242). Considering her last discussion of free speech/free expression, is an ethics of contingency feasible?

In looking at cases such as the Washington Redskins and others, what is the “usefulness” of counterpublicity as a tactic for transformative social change?

"That's not fair!" -- Sarah
"You say that so often. I wonder what your basis for comparison is." -- Jareth
(from Labyrinth)

In Shamans, Software, and Spleens (1996), James Boyle works to create a social theory of the information society – how we think about the production and transmission of information and how it relates to our ideas about property as well as private and public space. Boyle talks about information as a main source and form of wealth in Western societies and notes that people tend to think about information in terms of classic liberalism: as individual, as free, as a right. In this way, information lends itself well to being thought of as property, since property is often thought of in the same classically liberal way.

Boyle teases out some of the ideological tensions present in the idea of intellectual property One of those tensions involves roles and goals in the public and private realms, where he notes that private (or civil) law involves the restoration and maintenance of the status quo (and all its inequalities therein), while public (or criminal) law aims for equality (27). But is intellectual property considered public or private? On some level it is both, leading to many sticky issues of who is entitled to the ownership (and its benefits) of a particular piece of intellectual property. Boyle says that in some ways this problem seems to be resolved through the development of the idea of a romantic author, one whose originality is a private thing and as such can be seen as exclusive (and worthy of being called property).  

The idea of the romantic author – one who is seen to have the closest connection to a particular piece of intellectual property in terms of original contribution – is problematic for Boyle because that conceptions leads to an overabundance of intellectual property laws that ignore both the sources of the author’s work as well as the audiences. Whether the “work” is a literary creation or the management/manipulation of genetic data in the health and medical industries, the “author” is seen as the owner of an intangible property who then deserves all of the “rights” of management and profit associated with that property. However, this way of looking at intellectual property, since it does not acknowledge the sources as being part of the production of information, limits who can benefit from the transfer of information through society. Further, the more the idea of intellectual property is expanded – through copyright law and other means – the more it can limit the actual production of information, even though legal protections of intellectual property are seen as expanding that production.

My own critical analysis of Boyle’s argument centers around the idea of “production of information,” which he refers to frequently but does not cover in depth. In discussing information as part of a capitalist enterprise, it would seem to make sense to talk more about information as produced through labor. Boyle does mention labor sporadically, primarily to reference it as a question of an alternative way of thinking about how to compensate information producers (rather than conferring on them property rights). In a small paragraph in Chapter 6, he notes that a labor theory of property is limited by the idea/expression division that is contained in the notion of the romantic author (57). But who is conceiving of the author in terms of “original expression” without any sense of labor? Authors of all sorts today would likely argue that authorship is a “craft” (much as it was thought of in the 18th century and previous) and that the production, the labor, is what needs to be protected, not necessarily the sources.

Boyle does say that “information is costly to obtain” and that if “prices reflect available information, with no part of the price going to the producer of the information, then there is no incentive to produce more information” (37). I question the use of the word “incentive” in this statement, which seems to imply that any profit that comes from information production is a reward rather than compensation that has been earned through labor that might or might not have taken place anyway.

Questions

1) Is it possible to include information production in the broader system of labor as understood by modern capitalism? How could information producers be compensated for that labor without creating disadvantages for their sources or audiences (if such is possible)?

2) The discussion of John Moore made me think about Henrietta Lacks, the protagonist of this year’s Common Reading Book and from whose cancerous cervix came the first “immortal” cell line. Lacks’ story is somewhat similar to Moore’s in that she never received full disclosure and thus was not able to give informed consent for the use of her cells. Further, neither she nor any of her family received any of the profits that resulted from the use of the HeLa cells (which, among many other things, were instrumental in developing a polio vaccine). I’m wondering whether, for any of these kinds of cases, it would be possible to think of these “sources” as part of the labor of creation of information? Or is that going too far?

3)  I will fully admit to being a bit confoozled at present by the intricacies of information economics (Chapter Four). I don’t have a specific question as yet, but I’m hoping we can tease out how Boyle’s argument in this chapter plays out.

Quote at top was what I thought of while reading the chapter on insider trading. :)

I am glad that we decided to start the semester with Boyle. Amst 507 is a the first course I am taking outside of my department as a masters student, so it is nice to jump in with an issue that I know a little about. My thesis partly deals with issues of intellectual property and I also chose IP as the theme of one of my intro to writing courses last semester. I am looking forward to class discussion on Tuesday!

In Shamans, Software, and Spleens (1996) James Boyle offers a critical social theory of intellectual property. Coming from a background in law, Boyle argues that discourses of entitlement in our information society have largely gone untheorized, and that current approaches to intellectual property are almost exclusively based in microeconomics. Mainstream economic analyses, he argues, are insufficient because they take up a “commodity perspective” that narrowly focuses on the “optimal level of production” (p. 37). Because of this narrow focus on profit, economic analyses tend to obscure or ignore entirely the social and political aspects of intellectual property issues. Boyle sets out to offer an alternative, political economy approach to intellectual property. Throughout the book he reveals the ideological tensions within our current understandings of information regulation and the public domain, and investigates how the romantic conception of authorship has been used to reconcile these tensions.

Boyle’s project, then, is to map out a political economy approach to IP. His ultimate argument is that when seen through a political economy perspective, the framing of IP issues through a romantic notion of authorship not only leads to a less productive system, but is also unfair ethically because it tends to privilege certain groups over others. In Boyle’s words, 

What I found most interesting about Boyle’s argument was the ways in which our author-centered IP system tends to privilege certain groups over others, reproducing existing power inequalities. In chapter nine Boyle provides the example of the Moore case, where doctors use John Moore’s spleen and bodily fluids to create a genetically engineered cell line. The court grants the doctors intellectual ownership of the cell line because the court identifies the doctors’ work as fitting the romantic notion of the author, who works creatively to make something original out of “nothing.” John Moore, on the other hand, is deemed to be merely the “source” of the genetic information rather than its author, and is therefore denied ownership/economic gain from the use of his genetic information. We see the same distinction between “author” and “source” in the example of the Amazon shamans, whose knowledge of plants is deemed as a “source” while the corporations who use the shamans’ knowledge to create and sell pharmaceutical drugs are granted authorship status and become the sole economic beneficiaries.

I would add to these examples Kevin Greene’s (2010) analysis of the ways in which black American musicians—particularly women—have been systematically denied IP rights to their work. Their cultural products were routinely categorized as “sources” for white author/musicians.   

I agree with Boyle that deciding what constitutes either “author” or “source” is deeply ideological, and this process of defining tends to give financial reward those who are already in positions of race, gender, or class privilege. Using authorship as the dominant frame for IP is problematic because the legal system often fails to recognize and interrogate the ideological values behind our conception of authorship.

So I think I spent too much time summarizing and not enough doing analysis, but I feel like it is time to wrap this post up.

Discussion questions:

1. Boyle’s book provides a “road map” for analyzing the social and political aspects of information regulation. He discusses some of the ways he would like to see our system change, but points the reader to the Bellagio Declaration as an example of how the current approach to IP might be revised. What did you make of this document (p. 192-200)? Do you think that its suggestions for change are consistent with Boyle’s analysis? 

2. Our information society has changed since 1996. I think about big data, SOPA/PIPA, and the debate over who owns the online user information harvested by corporations like Facebook and Google. Boyle’s fear of “information overload” (p. 179-180) baffles me, but generally I find his book useful to thinking about current IP issues. In what ways, if at all, has Boyle’s “road map” helped you to rethink your understanding of current information issues?