Program

Introduction

The economy of drug trafficking holds up a mirror image to the official economy (Ruggieroand & South, 1997). It can therefore help us to catch sight of phenomena which have grown too familiar or is clouded behind euphemisms. For instance, the organisation of local drug trafficking in the Baltimor district in the US in the 1990s closely resembled an idealised notion of a ”cottage industry” (Eck & Gersh, 2000). Likewise, the wheeling-and-dealing pusher can be said to personify the entrepreneurial subject avant-la-lettre (South, 2004). This goes to suggest that one can learn much about how how officially recognised, white markets operate by studying illegal drug markets. In a similar vein, I call upon legal highs to throw a new light on a phenomenon that has variously been labelled ”open innovation” (Chesbrough, 2003), democratisation of innovation (von Hippel, 2005), or ”research in the wild” (Callon & Rabeharisoa, 2003). Although the scholars mentioned above belong to different intellectual traditions and their objectives diverge a great deal, they are all trying to encircle the same phenomenon. The object of study is an economy where the tools and know-how to innovate have been dispersed beyond the confines of firms and state institutions, and, subsequently, beyond the confines of experts and professionals. All the aforementioned scholars describe a trend which they consider on average to be benevolent. The relation between firm and user is assumed to be consensual and cooperative. As a consequence, with the exception of licensing regimes and intellectual property rights, questions about regulation and law enforcement have rarely been evoked in relation to ‘open innovation’ or lay expertise (cf. Söderberg, 2010). Moving away from mainstream academics writing to more activist thinking about the subject, such as, for instance, the idea about a peer-to-peer society, it remains the case that the role of the state and the law in this transition has been given little reflection. This lacuna is coherent with the underlying hope that the state will fall apart when users withdraw from it in autonomous practices, such as darknets, crypto-currences, etc.

A new light falls on these assumptions when the users in question are tweaking molecule structures for the sake of circumventing legal definitions. The state and the law are not absent, but constitutive, of these practices, even as the users seek to avoid its gravitational field. The purpose of this paper is to present an empirical case which compels us to adopt a more antagonistic perspective on the market economy, thus mandating a different theoretical apparatus than the ones now commonly drawn upon in studies of open innovation and/or user innovation. In order to foreground aspects of antagonism and contradiction in the regulation of (open) innovation processes, I point to Carl Schmitt, the infamous legal theorist in Nazi-Germany, and two of his contemporary critics, Franz Neumann and Otto Kirchheimer. The latter, associates of the Frankfurt School and emigrants, anchored their reflections over law and legal order in transformations of the economy. Like them, my inquiry into the regulation of legal highs fall back on an analysis of the economy. By making a comparison with activists and entrepreneurs developing filesharing tools, typically with the intent of violating copyright law, I hope to demonstrate that legal highs is not a stand-alone case. Rather, it gives indication of contradictions at the heart of an economy centred on fostering innovation and ‘creative destruction’.

Brief overview of legal highs

The defining trait of ‘legal highs’ is that the substance has not yet been defined in law as a controlled substance. Hence the production, possession and sale of the substance is not subject to law enforcement. Everything hinges on timing and novelty. When a substance has been prohibited, a small change of the molecule structure might suffice to circumvent the legal definition. What kind of changes are required depends on the legal procedures in the country in question. A recurrent finding in Innovation Studies is that lead users often are ahead of firms in discovering new products and emerging markets. Quite so, for decades, legal highs was a marginal phenomenon chiefly engaged in by a subculture of ”psychonauts”. Pioneers in underground chemistry like Nicholas Sand started in the 1960s to synthesise DMT and LSD, and they have since been followed by generations of aspiring chemist students. However, again confirming a wisdom from Innovation Studies, instances of on-off innovation by individuals for the sake of satisfying intellectual curiosity, personal consumption habits, or an urge to win recognition from ones peers, takes on a different significance when the market grows bigger. Some of the chemistry students decided at one point to become full-time entrepreneurs, producing drugs not primarily for use but for sale. A major inflow came with the rave scene in the UK in the 1980s and early 1990s (McKay, 1994). The clampdawn on ecstasy use triggered the quest for novel substances among a larger section of the population. Initially, information about how to synthesise or extract substances were first disseminated in fanzines such as Journal of Psychodelic Drugs, High Times and The Enthogen Review, to mention three of the most renowned, and reached an audience of a few thousands of readers. With the spread of the Internet in the 1990s, information about fungus and herbs from all the corners of the world could be broadcast to a global audience. Thanks to the legally uncertain status of legal highs, the products can be advertised and sold by webshops that are shiped internationally. According to a recent survey, more than half of the shops were registered in UK, and more that a third in the Netherlands (Hillebrand, Olszewski & Sedefov, 2010). In Ireland, drugs were sold in brick-and-mortar retail stores, so-called ‘head shops’, until a law was passed in 2010 banning this practice (Ryall & Butler, 2011). Globalisation has reshaped this market like any other. Most synthetic substances today are believed to have been produced in China, and, to a lesser extent, in India (Vardakou, Pistos, Spiliopoulou, 2011).

To provide an exhaustive taxonomy of something as ephemeral as legal highs is self-defeating from the start. To get a rough overview of the phenomenon under discussion, however, some highlights need to be given. A major group of legal highs classifies as synthetic cathinones. The source of inspiration comes from Khat, a plant traditionally used in East African countries. One derivative of this substance that has made it to the headlines is mephedrone. The first known instance of its use was in 2007 but it became widespread in 2009, in response to a new legislation in the UK that banned some other designer drugs. Subsequently, mephedrone was banned in UK in 2010, as well as in Netherlands and the Nordic countries (Winstock et al., 2010). Just a few months later, however, a new synthetic cathinone called Naphyrone took its place (Vardakou , et al., 2011). Another major class of drugs are synthetic cannabinoids. On the street they go under the name ”Spice” and are marketed as a legal alternative to marijuana. The synthetic extract of cannabis has been sprayed on herbal leaves. It took a long time for drug prevention authorities to realise that the active substance did not stem from the plant mixture but from added chemicals. In fact, it appears as some of the chemicals have been added to the compound simply to lead researchers astray and avoid detection (Griffiths, et al., 2010). Piperazines, finally, have effects that are said to mimic ecstacy. One version of this substance, 1-benzylpiperazine (BZP) became a celebrity cause after New Zealand recognised its legal status. From 2005 till 2008, it was permitted to sell BZP if some restrictions on advertisement and age limits were respected. The drug could be obtained from all kinds of outlets—corner shops, petrol stations and conveniences stores (Sheridan & Butler, 2010)

Drugs and definitions

Definitions were always key in discussions about drugs and addiction. The ambiguities start with the binary separation between legal drugs (tobacco, alcohol, pharmaceuticals) and illegal ones. It has often been commented on that the harm caused by a drug only in a remote way relates to the legal status of that substance. All the major drugs, opium, cocaine, cannabis and amphetamine, were initially considered to be therapeutic and still have some medical uses. Consequently, the intoxicating effects of a drug itself do not give an exhaustive answer to the question why it has been banned. Conventions, public perceptions and entrenched interests carry a heavy weight in defining what belongs to the right or the wrong side of the law. The centrality of definitions in this discussion is old hat among the scholars studying misuse and addiction (Klaue, 1999; Derrida, 2003). However, in the case of legal highs, the inherent limitations of definitions and language take on a heightened importance. For instance, to avoid health and safety regulations, the drugs are often labelled ‘research chemicals’ or ‘bath salt’ and the containers carries the warning ”not for human consumption”. The drawback with this strategy is that no instructions can be given on the container about dosages or how to minimise risks when administrating the drug.

Legal highs thrives on phony definitions that reflect an ambiguity in the law as such. Ultimately, what legal highs points to is the limits and contradictions of modern sovereignty in one of its incarnations, the rule of law. At the heart of the legal order lies a mismatch between, on the one hand, general and universal concepts of rights, and, on the other, the singularity in which those rights must be defined and enforced. Examples abound of how this gap can be exploited to turn the law against itself. Tax evasion and off-shore banking comes to mind as examples from an altogether different field. This is to say that the case with legal highs is not exceptional. Nor is it novel. Perhaps the urge to play out the letter against the spirit of the law and find loopholes is as old as the law’s origin in divine commandments. However, if the aim is to escape prosecution by the state, then the effectiveness of such practices presupposes a society bound by the rule of law. Rule-bending preys on the formalistic character of the law, which is specific to the secular, democratic and liberal society. Some core principles of the rule of law are as follows: The effects of a new law may only take place after the law has been passed. The law must be made known to the subjects that are ruled by it. What counts as a violation of the law must be clearly defined, as must the degree of enforcement and the punitive measures that is merited by a violation. In addition to the principles for how laws must be formulated, considerable time-lags are imposed by the recognised, democratic process for passing laws.

The original 1961 United Nation Single Convention on Narcotic Drugs laid down that unauthorized trade in a controlled substance should be made a criminal offence in signatory countries. It included a list of substances that were from now on to be held as illegal. Ten years later, more substances had been identified as problematic and were added to the list drawn up in the Convention on Psychotropic Substances. In the last years, however, the number of intoxicating and psychoactive substances is snowballing. According to the annual report by European Monitoring Centre for Drugs and Drug Addiction, there were almost one new substance discovered every week during 2011, and the trend is pointing steadily upward (ECNN, 2012). It has become untenable to proceed along the default option of classifying each new substance individually. There is a wide variation in European countries how long time it takes to make a drug controlled (from a few weeks to more than a year), depending on what legislative procedures are required. The time-lag in the different jurisdictions are made the most of by the web-shops selling legal highs to the ”EU common market”. Hence, pressure is building up for changing the procedures by which new substances are classified. The ordinary, parliamentary route of passing laws needs to be sidestepped if legislators are to keep pace with developments on the field. Already in 1986, United States introduced an analogue clause that by default includes substances said to be structurally similar to classified substances (Kau, 2008). Everything hinges on what is meant with ”similar”, an ambiguity that has never found an adequate answer. A middle road between individually listed substances and the unspecified definitions in the US analogue act was pioneered by UK, and has as of late been followed in many other countries, where control measures are extended to a clusters of modifications of a classified molecule. Other countries have hesitated to follow suit, out of fear of introducing too much ambiguity in a law which carry heavy penalties and extensive, investigative powers (EMCCDA, 2009). An alternative route has been to introduce fast-track systems whereby individual substances can be temporarily listed in a few weeks only, without requiring advice from a scientific board, as has typically been required in normal listing procedures. Another practice that has developed more or less spontaneously is that middle-range public authorities use consumer safety and/or medicine regulation in creative ways to prevent the sale of drugs that have not yet been listed (Hughes & Winstock, 2011).

The fact that legal highs are not prohibited in law might give the impression that such drugs are less dangerous than known and illegal substances. The case is often the opposite. The toxicity of amphetamine, cocaine etc. are well known to medical experts. One doctor specialised in aesthetics told me that he receives almost one patient a week at his hospital in Göteborg, Sweden, unconscious from the intake of a novel substance. It is hard to treat those cases as the chemical content is unknown to the medical expertise. In 2012, for instance, it was reported in Swedish media that 14 people had died from just one drug, called 5-IT. There is a tendency that less dangerous, hence, more popular, old and novel substances, are banned, as they quickly come to the attention of public authorities, pushing users to take ever newer and more risky, but unclassified, substances.

A theoretical excursion: the sovereign and law

While the medical risks of legal highs are easy enough to appreciate, other kinds of risk stem from the responses by legislators and law enforcement agencies. The collateral damage of international drug prevention have been thoroughly documented by scholars in the field. Especially in developing countries, the war on drugs have contributed to human rights abuses, corruption, political instability, and the list goes on and on (Barrett, 2010). Given this shoddy history, it is merited to ask what negative consequences a ‘war on legal highs’ might bring. Almost every country in the European Union have revised their laws on drug prevention in the last couple of years, or are in the process of doing so, in direct response to the surge of legal highs. The laws need to be made more agile to keep pace with the innovativeness of users and organised crime. Otherwise, law enforcement will be rendered toothless. Such flexibility is bought at a high price though. The constraints and time-lags are part and parcel of the rule of law of liberal societies, which, however imperfectly they are upheld, are arguably preferable to the arbitrariness of law enforcement in a police state.

It is in this light that it becomes relevant to recall Carl Schmitt’s reflections over the sovereign, alluded to in the introduction of the paper. Schmitt identified the punitive system as the nexus where the self-image of pluralistic, liberal democracy has to face its own contradictions. Thus he called attention to the fact that peaceful deliberation always presupposes the violent suppression of hostile elements. The delimitation of the violence monopoly of the state laid down by the rule of law is, at the end of the day, limits that the sovereign chooses to impose on himself (or not) (Schmitt, 2007; Zizek, 1999). Carl Schmitt’s radical challenge to the liberal and formalist legal tradition has been extensively commented on in recent years. Many thinkers on the left are attracted to his ideas as an antidote to what they consider to be an appeasing, post-political self-understanding in liberal societies (Mouffe, 2005).

Here I am less interested in present-day appropriations of Carl Schmitt’s thinking, than to use him as an entry point to discuss the works of two of his contemporary critics, Franz Neumann and Otto Kirchheimer, both associates of the Frankfurth School. They lived through the same convulsions of the Weimar Republic as Carl Schmitt did, but drew very different conclusions from that experience. Before saying anything more, let me first make clear that I am not comparing the historical situation in Germany during the 1930s and the current one, a claim that would be hyperbolic and gravely misleading. What interests me with their writings is that they anchored the rule of law in a transformation of the capitalist economy. In a ground-breaking essay, Franz Neumann argued that formalistic modes of law and legal reasoning had enjoyed broad support from privileged business interests in an era of competitive capitalism, epitomised by nineteenth century Britain. Competing firms wanted the state to act as an honest broker. Neumann did not take the self-descriptions of the rule of law at face value. He knew full well that law did not apply equally to all the subjects of the land. Still, he also recognised that subjugated groups had something to loose if this pretence was given up. As a labour organiser in the Weimar Republic, he had seen first-hand how the German business elite begun to cede their commitments to strict, clear, public and prospective forms of general law. Neumann explained this change of heart with an ongoing transition from competitive to monopolistic capitalism. Monopolies did not rely on the state as a broker. Rather, universally applicable laws was perceived as an encumbrance and a source of inflexibility (Neumann, 1996).

If Neumann’s reasoning is pushed too far, it turns into crude economism. It is merited to bring him up, nonetheless, because his ideas provide a missing piece of the puzzle to discussions about open innovation. Recently, William Scheuerman defended the actuality of Neumann’s thinking on law in light of globalisation. Multinational companies do not depend on national legislation to the same extent as before, while national parliaments are struggling to keep ahead and passings laws in response to developments in financial trading and global markets (Scheuerman, 2001). If the word “globalisation” is replaced with “innovation”, then Scheuerman’s argument concurs with the case I am trying to make here. The actors involved in developing legal highs stand as examples of how the speed of innovation places demands on legislators and parliaments that are difficult to reconcile with the principles of rule of law and democratic decision making. Furthermore, the example with legal highs should not be understood as an isolated phenomenon. As I will argue in the next paragraph, legal highs is indicative of broader transformations in an economy mandating innovation and technological change, including, crucially, open innovation. It can be worthwhile to recall that in 1950, Carl Schmitt too expressed concerns about how the legal system would cope with the acceleration of society, which he claimed to see evidence of on all fronts. He divined that this would result in a ‘motorization of law’:

“Since 1914 all major historical events and developments in every European country have contributed to making the process of legislation ever faster and more summary, the path to realizing legal regulation ever shorter, and the role of legal science ever smaller.” (Schmitt, 2009, p.65)

Innovation: the last fronteer

The ongoing efforts to circumvent legal definitions is carried out through innovation. The property looked for in a novel string of molecules or a new family of plants is the quality of not having been classified by regulators. Innovation is here turned into a game of not-yet and relative time-lags. Legislation is the planet which this frenetic activity gravitates around. This contrasts sharply with the mainstream discourse about the relation between legal institutions and innovation. It is here assumed that the institutions of law and contractual agreement serve to foster innovative firms by providing stability and predictability for investors (Waarden, 2001). However, a closer examination will reveal that legal highs are not such an odd-one-out after all. A lot of the innovation going on in corporate R&D departments is geared towards circumventing one specific kind of legal definition, that is to say, patents. The drive to increase productivity, lower costs and creating new markets are only part of the history of innovation. As important is the drive to invent new ways to achieve the same-same old thing, simply for the sake of avoiding a legal entitlement held by a competitor. Perhaps this merits a third category in the taxonomy of innovations, besides radical and incremental innovations, which I elect to call ”phony innovations”. Note to be taken, I do not intend this term to be derogative. What ”phony” refers to is something specific: innovation that aims to get as close as possible to a pre-existing function or effect, while being at variance with how that function is defined and described in a legal text. A case in point is naphyrone, made to simulate the experience that user previously had with mephedrone.

To regulate innovation, something non-existent and unknown must be made to conform with what already exists: the instituted, formalised and rule-bound. Activist-minded members of the “psychonaut” subculture, as well as entrepreneurs selling legal highs, seize on this opportunity to circumvent state regulation, which they tend to perceive as a hostile, external force. The image of an underdog inventor who outsmarts an illegitimate state power through technical ingenuity is a trope, which seamlessly extends to engineering subcultures, engaged in publicly accepted activities, such as building wireless community networks (Söderberg, 2011) and open source 3D printing (Söderberg, 2014). In a time when the whole of Earth has been mapped out and fenced in by nation states, often with science as a handmaid, innovation and science turns out to be the final frontier, just out of reach from the instituted. In popular writings about science in the ordinary press, science is portrayed as the inexhaustible continent, offering land-grabs for everyone, this time without any native indians being expropriated from their lands. The colonial and scientistic undertones of such rhetoric hardly needs to be pointed out. What is more interesting to note is that the frontier rhetoric also calls to mind folktales about the outlaw (and, occasionally, a social bandit or two, in Hobsbawn’s sense of the word). Science and innovation is the last hide-out from the sheriff, as it were. The official recognition granted to this cultural imagination is suggested by the term “shanzhai innovation”. Shanzai used to describe marshlands in China where bandits evaded state authorities, but nowadays it designates product innovations made by small manufacturers of counterfeited goods, which then creates new and legal. Laying in the tangent of open innovation, shanzai innovation too has become a buzz word among buisiness leaders and policy makers (Lindtner & Li, 2012).

Twenty years ago, the no-mans-land of innovation found a permanent address, ”cyberspace”. John Perry Barlow declared the independence of cyberspace vis-à-vis the governments of the industrial world. These days, of course, cyberspace enjoys as much independence from states as an encircled, indian reservation. That being said, temporality is built-in to the frontier notion from the start. New windows open up as the old ones are closed down. Nonetheless, a red thread connects the subcultures dedicated to cryptography, filesharing, crypto-currencies (such as BitCoin) etc., all of them thriving on the Internet, on the one hand, and the psychonaut subculture experimenting with legal highs, on the other. Both technologies where pioneered by the same cluster of people, stemming from the same 1960s American counter-culture. Hence, the subcultures associated with either technology have inherited many of the same tropes. A case in point is the shared hostility towards state authority and state intervention, experienced as an unjust restriction of the freedom of the individual. There is also a practical link, as the surge of legal highs would be unthinkable without the Internet. Discussion forums are key for sharing instructions for how to administrate a drug, while reviews of retailers and novel substances on the Internet provide a minimum of consumer power (Walsh & Phil, 2011; Thoër & Millerand, 2012).

More to the point, the crypto-anarchic subculture and the psychonaut subculture both put in relief the troubled relation between innovation and law. The relentless search for unclassified drugs is mirrored in the creation of new filesharing protocols aimed at circumventing copyright law. To take one well-known example out of the hat: the Swedish court case against one of the worlds largest filesharing sites, the Pirate Bay (Andersson, 2011). Swedish and international copyright law specifies that an offence consists in the unauthorised dissemination of a file containing copyrighted material. Strictly speaking, however, not a single file was up- or downloaded on the Pirate Bay site that violated this definition of copyright law. The website only contained links to files that had been broken up into a torrent of thousands of fragments scattered all over the network. This qualifies as a ”phony innovation” in the sense defined above, because when the fragments are combined by the end-user/computer, an effect is produced on the screen (an image, a sound, etc.) indistinguishable from that which would have happened, had a single file been transmitted to the user. Technically speaking, the Pirate Bay provided a search engine service similar to Google. Such technical niceties creates a dilemma for the entire juridical system: either stick with legal definitions and risk having the court procedure grinding to halt, or arbitrarily override the principles of rule-of-law.

Labouring in the legal no-mans-land

The case with legal highs is exceptional on at least one account, in that governments try hard to prevent innovation from happening in this field. When those efforts fail, the response from policy makers and legislators has been to try again. Changes are introduced in legislative procedures at an accelerating rate, international cooperation is strengthened, and more power is invested in law enforcement agencies. This stand in contrast to most other cases of innovation, even potentially dangerous ones, where public authorities and regulators tend to adopt a laissez-faire attitude. The underlying assumption is that whatever unfortunate side-effects a new technology might bring with it, unemployment, health risks, environmental degradation, etc., it is due to a technical imperfection, something that can be set right through more innovation. This argument, only occasionally confirmed in experience, has purchaise, because ultimately bracketted up with the imperative to stay competitive in global markets. Everyone must bow to this imperative, be it a worker, a firm or a nation state. Subsequently, firms are forced by competition to follow after the most innovative lead-users, no matter where it leads. This is the official story, told and retold by heaps of Innovation Studies scholars, but there is a twist to the tale. Some lead users find themselves on the wrong side of the law, or at least in a grey-zone in-between legality and illegality. The important point to stress here is that, even if the motives of the delinquent innovator are despicable and self-serving, judged by society’s own standards, he or she is also very, very productive.

The appropriation of filesharing methods by the culture industry is a pointer. The distributed method for storing and indexing files in a peer-to-peer network has proven to be advantageous over older, centralised forms of data retrieval. The technique has become an industrial standard. Even the practice of filesharing itself has been incorporated in the marketing strategies of some content providers, including those who are pressing charges against individual filesharers (MediaDefender being the celebrity case). While filesharers and providers of filesharing services are fined or sent to prison, the innovations stemming from their (illegal) activities are greasing the wheels of the culture industry.

By the same token, it is predictable that discoveries made by clandestine chemists and psychonauts will end up in the patent portfolio of pharmaceutical companies. It suffices to recall how methamphetamine cooking in the US has driven up over-the-counter sales of cold medicine (in which a key precursor for methamphetamine can be found, ehpedrine), far beyond what any known cold epidemic could account for (Redding, 2009). As for the psychonauts, the user-generated data bases with trip reports, dosages and adverse drug effects from the intake of novel psychodelic substances that have accumulated on the Internet over the last decades are currently being mined by pharmaceutical researchers. Thus is the psychonaut subculture enrolled in the drug discovery process of the pharmaceutical industry. The added benefit for the industry is that they have no liability towards their test subjects.

In conclusion, the legal grey zone has become an incubator for innovation. In the same way as parts of the culture industry has become structrurally dependent on unwaged, volunteer labour by fans and hobbyists, the computer industry is structurally dependent on the illegal practices of filesharers and hackers, and the pharmaceutical industry on the psychonauts. The outlawing of their practices lay down a negative exchange rate of labour. The established practice of appropriating ideas from communities and political movements by rewarding key individiduals with access to venture capital is matched with a witheld threat of prison sentences. Concurrently, arbitrariness in the legal grey zone become the condition for labouring in the Schumpeterian-Shanzai innovation economy.

Impact of technological rules and actors on society

At the height of the dot-com boom in the late 1990s, Lawrence Lessig expressed and popularized the idea that technical code regulates (Lessig 2006). Since then, together with rapid technological developments and widespread dissemination of technologies in all aspects of people’s lives, the growing influence on the behavior of people and things of technological rules and actors other than and beyond the law and the state has become all the more apparent. The behaviors of people online are to a certain extent determined by the technical protocols and standards adopted by the Internet Engineering Task Force (IETF) and other non-governmental bodies that design the architecture of the internet (see Murray 2007, 74; Bowrey 2005, 47). The Arab Spring has proven that the use of internet-based communications and technologies can enable or have a role in dramatic political and social change (Howard 2011; Stepanova 2012)¹. Making full use of their technical proficiency, the people behind the whistleblower website Wikileaks and the hacktivist group Anonymous have become influential albeit controversial members of civil society who push the boundaries of what democracy, freedom and civil disobedience mean in a digital environment (Ludlow 2010; Hampson 2012, 512-513; Chadwick 2006, 114). Technology-related rules even had a hand in one of the most significant events of the new millennium, the Global Financial Crisis. It is claimed that misplaced reliance by financial institutions on computer models based on a mathematical algorithm (Gaussian copula function) was partly to blame for the miscalculation of risks that led to the crisis (Salmon 2009; MacKenzie&Spears 2012). The fact that a formula (i.e., a rule expressed in symbols) can affect the world in such a momentous way highlights the critical role of rules in a ‘networked information society’ (Cohen 2012, 3) or ‘network society’ (Castells 2001, 133).

This paper argues that, in order to better understand how a networked society is organized and operates now and in the near future, it is important to develop and adopt a pluralist, rules-based approach to law and technology research. This means coming to terms with and seriously examining the plural legal and extra-legal rules, norms, codes, and principles that influence and govern behavior in a digital and computational universe (see Dyson 2012), as well as the persons and things that create or embody these rules. Adopting this rules-based framework to technology law research is valuable since, with the increasing informatization and technologization of society (Pertiera 2010, 16), multiple actors and rules – both near and far – do profoundly shape the world we live in.

From ‘what things regulate’ to ‘what rules influence behavior’

A pluralist and distributed approach to law and technology is not new (see Schiff Berman 2006; Hildebrandt 2008; Mifsud Bonnici 2007, 21-22 (‘mesh regulation’); Dizon 2011). Lessig’s theory of the four modalities of regulation (law, social norms, the market, and architecture) serves as the foundation and inspiration for many theories and conceptualizations about law, regulation and technology within and outside the field of technology law (Lessig 2006, 123; Dizon 2011). Modifying Lessig’s model, Murray and Scott (2002, 492) come up with what they call the four bases of regulation: hierarchy, competition, community, and design. Similarly, Morgan and Yeung (2007, 80) advance the five classes of regulatory instruments that control behavior, namely: command, competition, consensus, communication, and code.

Lessig’s conception of “what things regulate” (Lessig 2006, 120) is indeed insightful and useful for thinking about law and technology in a networked society. I contend, however, that his theory can be remade and improved by: (1) modifying two of the modalities; (2) moving away from the predominantly instrumentalist concerns of ‘regulation’ and how people and things can be effectively steered and controlled to achieve stated ends (Morgan & Yeung 2007, 3-5; Black 2002, 23, 26); and (3) focusing more on how things actually influence behavior rather than just how they can be regulated. I prefer to use the term ‘technology’ rather than ‘architecture’ since the former is a broader concept that subsumes architecture and code within its scope. By technology, I mean the ‘application of knowledge to production from the material world. Technology involves the creation of material instruments (such as machines) used in human interaction with nature’ (Giddens 2009, 1135). The regulatory modality of ‘the market’ is slightly narrow in its scope since it pertains primarily to the results of people’s actions and interactions. This modality can be expanded to also cover the ‘naturaland social forces and occurrences’ (including economic ones) that are present in the physical and material world. In the same way that market forces have been the classic subject of law and economics, it makes sense for those studying law and technology issues to also examine other scientific phenomena. As will be explained in more detail below, social norms are distinguished from natural and social phenomena since the former are composed of prescriptive (ought) rules while the latter are expressed as descriptive (is) rules. Based on the above conceptual changes to Lessig’s theory, the four things that influence behavior are: (1) law, (2) norms, (3) technology, and (4) natural and social forces and occurrences.

The four things that influence behavior can be further described and analyzed in terms of the rules that constitute them. From a rules-based perspective, law can be conceived of as being made up of legal rules, and norms are composed of specific social norms. On their part, technology consists of technical codes and instructions, while natural and social forces and occurrences are expressed in scientific principles and theories. By looking at what rules influence behavior, one can gain a more detailed, systematic and interconnected picture of who and what governs a networked society. Lessig’s well-known diagram of what constrains an actor can be reconfigured according to the four types of rules that influence behavior. The four rules of a networked society therefore are legal rules, social norms, technical codes, and scientific principles (see Figure 1).

Rules of a networked society

Plurality of rules

How the various rules of a networked society relate to and interact with each other is very important to understanding how the informational and technological world works. Having a clear idea of how and why the rules are distinct yet connected to one another is paramount given that, in most cases, there are multiple overlaps, connections, intersections and even conflicts among these rules. More often than not, not one but many rules are present and impact behavior in any given situation. The presence of two or more rules or types of rules that influence behavior in a given situation gives rise to a condition of plurality of rules. Plurality of rules resembles the concept of ‘legal pluralism’, which is described by John Griffiths as “that state of affairs, for any social field, in which behavior pursuant to more than one legal order occurs” (Griffiths 1986, 2; von Benda-Beckmann & von Benda-Beckmann 2006, 14). Legal pluralism generally considers both descriptive and normative/prescriptive rules as falling within the ambit of the term law (von Benda-Beckmann 2002, 48). As a result, legal pluralism has been subject to the perennial criticism that, due to its more expansive conception of law, the distinction between law and other forms of social control has been blurred (Merry 1988, 871, 878-879, 858; Griffiths 1986, 307; von Benda-Beckmann 2002, 47, 54, 56). In order to avoid a similar critique, while still maintaining a pluralist perspective, I deliberately use the term ‘rule’ (regula) rather than ‘law’ (lex) to characterize and describe the things that influence and govern behavior. Unlike law, which is inherently normative, a rule has greater flexibility and can cover both is and ought statements. In this way, the important distinction between descriptive rules and normative rules is retained, and the term rule can still be used in two discrete senses: (1) as an observed regularity² and (2) as a standard that must be observed. The concept of rules is thus sufficiently robust and nuanced that it can serve as the basis for constructing a new way of perceiving the state and degree of normativity in the networked information society (Riesenfeld 2010). Far from conflating the four things that influence behavior, a rules-based perspective is able to integrate and find important interconnections between and among them while, at the same time, preserving and taking in account their uniqueness.

The different types of rules of a networked society and how they connect with each other are explained in greater detail below.

Legal rules and social norms

Legal rules and social norms are both prescriptive types of rules. A social norm has been defined in a number ways: as ‘a statement made by a number of members of a group, not necessarily by all of them, that the members ought to behave in a certain way in certain circumstances’ (Opp 2001, 10714), as ‘a belief shared to some extent by members of a social unit as to what conduct ought to be in particular situations or circumstances’ (Gibbs 1966, 7), and as ‘generally accepted, sanctioned prescriptions for, or prohibitions against, others’ behavior, belief, or feeling, i.e. what others ought to do, believe, feel – or else’ (Morris 1956, 610). Dohrenwend proffers a more detailed definition:

A social norm is a rule which, over a period of time, proves binding on the overt behavior of each individual in an aggregate of two or more individuals. It is marked by the following characteristics: (1) Being a rule, it has content known to at least one member of the social aggregate. (2) Being a binding rule, it regulates the behavior of any given individual in the social aggregate by virtue of (a) his having internalized the rule; (b) external sanctions in support of the rule applied to him by one or more other individuals in the social aggregate; (c) external sanctions in support of the rule applied to him by an authority outside the social aggregate; or any combination of these circumstances.
— Dohrenwend 1959

From the above definitions, the attributes of social norms are: ‘(1) a collective evaluation of behavior in terms of what it ought to be; (2) a collective expectation as to what behavior will be; and/or(3) particular reactions to behavior, including attempts to apply sanctions or otherwise induce a particular kind of conduct’. (Gibbs 1965, 589)
Norms are a key element to a rules-based approach to law and technology. This is especially evident when one recognizes that law is ‘a type of norm’ and ‘a subset of norms’ (Gibbs 1966, 315; Opp 2001, 10715; Posner 1997, 365³) Laws may be deemed to be more formal norms. Galligan holds the inverse to be true: ‘some rule-based associations are mirrors of law and as such may lay some claim to be considered orders of informal laws’ (Galligan 2007, 188). Norms and laws can therefore be imagined as forming a continuum and the degree of formality, generality, certainty and importance (among other things) is what moves a rule of behavior from the side of norms to the side of law (see Ruby 1986, 591).

Legal rules and social norms have a close and symbiotic relationship. Cooter explains one of the basic dynamics of laws and norms, ‘law can grow from the bottom up by [building upon and] enforcing social norms’ (Cooter 1996, 947-948), but it can also influence social norms from the top down – “law may improve the situation by enforcing a beneficial social norm, suppressing a harmful social norm, or supplying a missing obligation” (ibid 1996, 949). Traditional legal theory has settled explanations of how laws and norms interact. Social norms can be transformed into legal norms or accorded legal status by the state through a number of ways: incorporation (social norms are transformed or codified into law by way of formal legislative or judicial processes), deference (the state recognizes social norms as facts and does not interfere with certain private transactions and private orderings), delegation (the state acknowledges acts of self-regulation of certain groups) (Michaels 2005, 1228, 1231, 1233 and 1234), and recognition (the state recognizes certain customary or religious norms as state law) (van der Hof & Stuurman 2006, 217).

Technical codes and instructions

Technical codes like computer programs consist of descriptive rather than prescriptive instructions. However, the value of focusing on rules of behavior is that the normative effects of technical codes can be fully recognized and appreciated. Despite the title of his seminal book and his famous pronouncement that ‘code is law’, Lessig (2006, 5) does not actually consider technical or computer code to be an actual category or form of law, and the statement is basically an acknowledgement of code’s law-like properties. As Leenes (2011, 145) points out, ‘Although Lessig states that ‘code is law’, he does not mean it in a literal sense’. Even Reidenberg’s earlier concept of Lex Informatica, which inspired Lessig, is law in name only (Lessig 2006, 5). Reidenberg explicitly states that Lex Informatica can be ‘a useful extra-legal instrument that may be used to achieve objectives that otherwise challenge conventional laws and attempts by government to regulate across jurisdictional lines’ (1997, 556 emphasis added). While Lex Informatica ‘has analogs for the key elements of a legal regime’, it is still ‘a parallel rule system’ that is ‘distinct from legal regulation’ (Reidenberg 1997, 569, 580 emphasis added). But if ‘code is not law’ as some legal scholars conclude (Dommering 2006, 11, 14), what exactly is the relationship between technical codes and law, and what is the significance of code in the shaping of behavior in a networked society?

Using the above definition and characterization of norms, technical code in and of itself (i.e., excluding any such norms and values that an engineer or programmer intentionally or unintentionally ally implements or embodies in the instructions) is neither a legal rule nor a social norm because: (1) it is not a shared belief among the members of a unit; (2) there is no oughtness (must or should) or a sense of obligation or bindingness in the if-then statements of technical code (they are simply binary choices of on or off, true or false, is versus not); (3) there is no ‘or else’ element that proceeds from the threat of sanctions (or the promise of incentives) for not conforming (or conforming) with the norm; (4) the outcome of an if-then statement does not normally call for the imposition of external sanctions by an authority outside of the subject technology; (5) and, generally, there is no collective evaluation or expectation within the technical code itself of what the behavior ought to be or will be (a matter of is and not ought).

Even though technical codes and instructions are not per se norms, they can undoubtedly have normative effects (van der Hof & Stuurman 2006, 218, 227). Furthermore, technologies are socially constructed and can embody various norms and values (Pinch & Bijker 1984, 404). A massively multiplayer online role-playing game (MMORPG) such as World of Warcraft has its own rules of play and can, to a certain extent, have normative effects on the persons playing it (they must abide by the game’s rules and mechanics). A virulent computer program such as the ‘ILOVEYOU’ virus/worm (or the Love Bug) that caused great damage to computers and IT systems around the world in 2000 can have a strong normative impact; it can change the outlooks and behaviors of various actors and entities (Cesare 2001, 145; Grossman 2000). As a result of the outbreak of the Love Bug, employees and private users were advised through their corporate computer policies or in public awareness campaigns not to open email attachments from untrustworthy sources. In the Philippines, where the alleged author of the Love Bug resided, the Philippine Congress finally enacted a long awaited Philippine Electronic Commerce Act, which contained provisions that criminalized hacking and the release of computer viruses⁴. The Love Bug, which is made up of technical instructions, definitely had a strong normative impact on computer use and security.

Digital rights management (DRM) is an interesting illustration of the normative effects of technology since, in this case, technical code and legal rules act together to enforce certain rights for the benefit of content owners and limit what users can do with digital works and devices (see Brown 2006). DRM on a computer game, for example, can prevent users from installing or playing it on more than one device. Through the making of computer code, content owners are able to create and grant themselves what are essentially new and expanded rights over intellectual creations that go beyond the protections provided to them under intellectual property laws (van der Hof & Stuurman 2006, 215; McCullagh 2005). Moreover, supported by both international and national laws⁵, DRM acts as hybrid techno-legal rules that not only restrict the ability of users to access and use digital works wrapped in copy protection mechanisms, but the circumvention of DRM and the dissemination of information about circumvention techniques are subject to legal sanctions (see Dizon 2010).⁶ When users across the world play a computer game with ‘always-on’ DRM like Ubisoft’s Driver, it is tantamount to people’s behavior being subjected to a kind of transnational, technological control, which users have historically revolted against (Hutchinson 2012; Doctorow 2008).

Another example of hybrid techno-legal rules is the so-called Great Firewall of China. This computer system that monitors and controls what users and computers within China can access and connect to online clearly has normative effects since it determines the actions and communications of an entire population (Karagiannopoulos 2012, 155). In fact, it does not only control what can be done within China but it also affects people and computers all over the world (e.g., it can prevent a Dutch blogger or a U.S. internet service such as YouTube from communicating with Chinese users and computers). In light of their far-reaching normative impact, technical codes and instructions should not be seen as mere instruments or tools of law (Dommering 2006, 13-14), but as a distinct type of rule in a networked society. Code deserves serious attention and careful consideration in its own right.

Scientific principles and theories

There is a whole host of scientific principles, theories and rules from the natural, social and formal sciences that describe and explain various natural and social phenomena that influence the behavior of people and things. Some of these scientific principles are extremely relevant to understanding the inner workings of a networked society. For example, Moore’s Law is the observation-cumprediction of Intel’s co-founder Gordon Moore that ‘the number of transistors on a chip roughly doubles every two years’,⁷ and can be expressed in the mathematical formula n = 2^{((y - 1959) ÷ d)} (Ce ruzi 2005, 585)⁸ Since 1965, this principle and the things that it represents have shaped and continue to profoundly influence all aspects of the computing industry and digital culture particularly what products and services are produced and what people can or cannot do with computers and electronic devices (Ceruzzi 2005, 586; Hammond 2004; see Anderson 2012, 73, 141). Ceruzzi rightly claims, ‘Moore’s law plays a significant role in determining the current place of technology in society’ (2005, 586). However, it is important to point out that Moore’s Law is not about physics; it is a self-fulfilling prophecy that is derived from ‘the confluence and aggregation of individuals’ expectations manifested in organizational and social systems which serve to self-reinforce the fulfillment of Moore's prediction’ for some doubling period (Hammond 2004, citations omitted)and is ‘an emergent property of the highly complex organization called the semiconductor industry’ (ibidem). This statement reveals an important aspect of Moore’s Law and other scientific principles and rules – that they are also subject to social construction. As Jasanoff eruditely explains:

science is socially constructed. According to a persuasive body of work, the “facts” that scientists present to the rest of the world are not simple reflections of nature; rather these “facts” are produced by human agency, through the institutions and processes of science, hence they invariably contain a social component. Facts, in other words, are more than merely raw observations made by scientists exploring the mysteries of nature. Observations achieve the status of “facts” only if they are produced in accordance with prior agreements about the rightness of particular theories, experimental methods, instrumental techniques, validation procedures, review processes, and the like. These agreements, in turn, are socially derived through continual negotiation and renegotiation among relevant bodies of scientists.
— Jasanoff 1991, see also Polanyi 2000

Since the construction of scientific rules and facts is undertaken by both science and non-science institutions, “what finally counts as ‘science’ is influenced not only by the consensus views of scientists, but also by society’s views of what nature is like – views that may be conditioned in turn by deep-seated cultural biases about what nature should be like” (Jasanoff 1991, 347). Due to “the contingency and indeterminacy of knowledge, the multiplicity and non-linearity of ‘causes’, and the importance of the narrator’s (or the scientific claims-maker’s) social and cultural standpoint in presenting particular explanations as authoritative” (Jasanoff 1996, 411-412), science is without doubt a ‘deeply political’ and ‘deeply normative’ activity (Jasanoff 1996, 409, 413; see Geertz 1983, 189; Hoppe 1999). It reveals as much about us as it does the material world.

The ‘constructedness’ (Jasanoff 1991, 349) of science can also been seen in the history of the use of and meaning ascribed to the term ‘scientific law’. The use of the term ‘law’ in reference to natural phenomena has been explained as ‘a metaphor of divine legislation”, which “combined the biblical ideas of God’s legislating for nature with the basic idea of physical regularities and quantitative rules of operation’ (Ruby 1986, 341, 342,358 (citations omitted). Ruby argues, however, that the origins of the use of the term law (lex) for scientific principles is not metaphorical but is inherently connected to the use and development of another term, rule (regula) (Ruby 1986, 347, 350). Through the changing uses and meanings of lex and regula and their descriptive and/or prescriptive application to the actions of both man and nature throughout the centuries, law in the field of science became more commonly used to designate a more fundamental or forceful type of rule, which nevertheless pertains to some ‘regularity’ in nature. At its core, a scientific principle or law is about imagining ‘nature as a set of intelligible, measurable, predictable regularities’ (Ruby 1986, 350 (emphasis added)).

Another important characteristic of scientific principles is that they act as signs, and consist of both signifier and signified. Moore’s Law is both the expression and the embodiment of the natural and social forces and occurrences that it describes. As Ruby (1986, 347) explains, “in the case of natural phenomena it is not always possible to distinguish the use of lex for formulated principles from that for regularities in nature itself”. Thus, from a practical standpoint, natural and social phenomena are reified and can be referred to by the labels and formulations of the relevant scientific principles that they are known by. For example, rather than saying, ‘the forces described by Moore’s Law affected the computer industry’, it can be stated simply as ‘Moore’s Law affected the computer industry’.

There is much that can be learned about how the world works if we take as seriously the influence of scientific rules on behavior as we do legal ones. Scientific principles are descriptive and not prescriptive rules, but, like technical codes, they too are socially constructed and have significant normative effects on society and technology, and are thus worth studying in earnest (see Jasanoff 1996, 397 ‘co-production of scientific and social order’). People who are aware of the descriptive ‘theory of the Long Tail’ (Anderson 2007, 52)⁹ would conform their actions to this rule and build businesses that answer the demands of niche markets. Scientists and engineers are obviously cognizant of the “law of gravity” and they know that they ought to design rockets and airplanes based on this important descriptive principle. Competition authorities know that they must take into account market forces and relevant economic principles before imposing prescriptive rules on a subject entity or market. These and many other examples show how descriptive rules can also give rise to or be the basis of ought actions and statements.¹⁰ Descriptive rules as such can influence behavior and have normative effects.

Being able to incorporate scientific principles within the purview of law and technology research is important since it creates connections that bring the fields of law and science and technology ever closer together. If there is value in a sociologist of science and technology studying law-making processes (Latour 2010), there is equal merit in law and technology researchers examining scientific principles and technical codes since rules that govern the networked society can similarly be made and found in laboratories and workshops (Latour 2010; Callon 1987, 99).

Significance of rules

On a theoretical level, a rules-based approach is very useful and valuable to law and technology research in a number of ways. First, it distinguishes but does not discriminate between normative and descriptive rules. While the key distinction between is and ought is maintained, the role and impact of descriptive rules on behavior and order is not disregarded but is, in fact, fully taken into account. By focusing as well on descriptive rules and regularities that are not completely subject to human direction, a rules-based framework can complement and support the more instrumentalist, cybernetic and state-centric theories and methods to law and technology (Morgan & Yeung 2007, 3-5, Black 2002, 23, 26). Rather than concentrating solely or mainly on how state actors and the law directly or indirectly regulate behavior, a rules-based approach creates an awareness that problems and issues brought about by social and technological changes are often not completely solvable through man-made, top-down solutions alone, and more organic and bottom-up approaches should also be pursued. By placing equal emphasis on descriptive rules such as technical codes and scientific principles and their normative effects, the complexity and unpredictability of reality can be better understood, and the people, things and phenomena within and beyond our control are properly considered, addressed or, in some case, left alone.

Second, conceptualizing the networked society in terms of is and ought rules makes evident the ‘duality of structure’ that recursively constitutes and shapes our world (Giddens 1984 25, 375). As Giddens explains,

The constitution of agents and structures are not two independently given set of phenomena, a dualism, but represent a duality. According to the notion of duality of structure, the structural properties of social systems are both medium and outcome of the practices they recursively organized. Structure is not “external” to individuals…. Structure is not to be equated with constraint but is always both constraining and enabling.
— Giddens 1984

Applying Giddens’ ‘theory of structuration’, a networked society is thus not constituted solely by one dimension to the exclusion of another – agency versus structure, human against machine, man versus nature, instrumentalism or technological determinism, society or technology – but it is the action-outcome of the mutual shaping of any or all of these dualities (Giddens 1984).

Finally, a rule can be a key concept for an interdisciplinary approach to understanding law, technology and society. A rule can serve as a common concept, element or interface that connects and binds different academic fields and disciplines (Therborn 2002, 863). With the increasing convergence of different technologies and various fields of human activity (both inter and intra) and the multidisciplinary perspectives demanded of research today, a unifying concept can be theoretically and methodologically useful. The study of rules (particularly norms) has received serious attention from such diverse fields as law (see Posner 2000; Sunstein 1996; Lessig 1995; Cooter 2000), sociology (Hecter 2001), economics (McAdams & Rasmusen 2007; Posner 1997), game theory (Bicchieri 2006; Axelrod 1986), and even information theory (Boella et al. 2006; Floridi 2012). The study of ‘normative multiagent systems’ illustrates the interesting confluence of issues pertaining to law, technology and society under the rubric of rules (Boella et al. 2006; Savarimuthu & Cranefield 2011).

Rules of hacking

In addition to its conceptual advantages, a rules-based approach can be readily applied to analyze real world legal and normative problems that arise from technical and social changes. There can be greater clarity in determining what issues are involved and what possible actions to take when one perceives the world as being ‘normatively full’ (Griffiths 2002, 34) and replete with rules. For instance, the ‘problem’ of computer hacking¹¹ is one that legislators and other state actors have been struggling with ever since computers became widely used. Using the rules of a networked society as a framework for analysis, it becomes evident that hacking is not simply a problem to be solved but a complex, techno-social phenomenon that needs to be properly observed and understood.

Laws on hacking

Early attempts to regulate hacking seemingly labored under the impression that the only rules that applied were legal rules. Thus, despite the absence of empirical data showing that hacking was an actual and serious threat to society, legislators around the world enacted computer fraud and misuse statutes that criminalized various acts of hacking, particularly unauthorized access to a computer (Hollinger 1991, 8). Some studies have shown, however, that these anti-hacking statutes have mostly been used against disloyal and disgruntled employees and only seldom in relation to anonymous outsiders who break into a company’s computer system, the oft-cited bogeyman of computer abuse laws (Hollinger 1991, 9; Skibbel 2003, 918). Not all laws though are opposed to all forms of hacking. The Software Directive upholds the rights to reverse engineer and to decompile computer programs to ensure interoperability subject to certain requirements¹². The fair use doctrine and similar limitations to copyright provide users and developers with a bit of (but clearly not much) space and freedom to hack and innovate (see Rogers & Szamosszegi 2011).

Norms of hackers

Another thing that state actors fail to consider when dealing with hacking is that computer hackers belong to a distinct culture with its own set of rules. Since the social norms and values of hackers are deeply held, the simple expedient of labeling hacking as illegal or deviant is not sufficient to deter hackers from engaging in these legally prohibited activities. In his book Hackers, Levy codified some of the most important norms and values that make up the hacker ethic:

• Access to computers should be unlimited and total.
• All information should be free.
• Mistrust Authority – Promote Decentralization.
• Hackers should be judged by their hacking, not bogus criteria such as degrees, age, race, or position.
• You can create art and beauty on a computer.
• Computers can change your life for the better (Levy 2010, 28-34).

These norms and values lie at the very heart of hacker culture and are a source from which hackers construct their identity. Therborn (2002, 869) explains the role of norms in identity formation, “This is not just a question of an ‘internalization’ of a norm, but above all a linking of our individual sense of self to the norm source. The latter then provides the meaning of our life”. While hacker norms have an obviously liberal and anti-establishment inclination, the main purposes of hacking are generally positive and socially acceptable (e.g., freedom of access, openness, freedom of expression, autonomy, equality, personal growth, and community development). It is not discounted that there are hackers who commit criminal acts and cause damage to property. However, the fear or belief that hacking is intrinsically malicious or destructive is not supported by hacker norms. In truth, many computer hackers adhere to the rule not to cause damage to property and to others (Levy 2010, 457). Among the original computer hackers in the Massachusetts Institute of Technology (MIT) and the many other types and groups of hackers, there is a ‘cultural taboo against malicious behavior’ (Williams 2002, 178). Even the world famous hacker Kevin Mitnick, who has been unfairly labeled as a ‘dark-side hacker’ (Hafner & Markoff 1991, 15), never hacked for financial or commercial gain (Mitnick & Siomon 2011; Hollinger 2001, 79; Coleman & Golub 2008, 266).

It is not surprising then that the outlawing and demonization of hacking inflamed rather than suppressed the activities of hackers. After his arrest in 1986, a hacker who went by the pseudonym of The Mentor wrote a hacker manifesto that was published in Phrack, a magazine for hackers, and became a rallying call for the community.¹³ The so-called ‘hacker crackdown’ in 1990 (also known as Operation Sun Devil, where U.S. state and federal law enforcement agencies attempted to shut down rogue bulletin boards run by hackers that were allegedly “trading in stolen long distance telephone access codes and credit card numbers”) (Hollinger 2001, 79) had the unintended effect of spurring the formation of the Electronic Frontier Foundation, an organization of digital rights advocates (Sterling 1992, 12). Similarly, the suicide of a well-known hacker, Aaron Schwartz, who at the time of his death was being prosecuted by the US Justice Department for acts of hacktivism, has spurred a campaign to finally reform problematic and excessively harsh US anti hacking statutes that have been in force for decades.¹⁴

It may be argued that Levy’s book, which is considered by some to be the definitive account of hacker culture and its early history, was a response of the hacker community (with the assistance of a sympathetic journalist) to counteract the negative portrayal of hackers in the mass media and to set the record straight about the true meaning of hacking (Levy 2010, 456-457, 464; Sterling 1992, 57, 59; Coleman & Golub 2008, 255). Through Levy’s book and most especially his distillation of the hacker ethic, hackers were able to affirm their values and establish a sense of identity and community (Williams 2002, 177-178). According to Jordan and Taylor,

Rather than hackers learning the tenets of the hacker ethic, as seminally defined by Steven Levy, they negotiate a common understanding of the meaning of hacking of which the hacker ethic provides a ready articulation. Many see the hacker ethic as a foundation of the hacker community.
— Jordan & Taylor 2008

To illustrate the importance of Levy’s book as a statement for and about hacker culture, the wellknown German hacker group Chaos Computer Club uses the hacker ethic as their own standards of behavior (with a few additions).¹⁵

Technologies of hacking

Hackers do not only practice and live out their social norms and values, but the latter are embodied and upheld in the technologies and technical codes that hackers make and use. This is expected since hackers possess the technical means and expertise to route around, deflect or defeat the legal and extra-legal rules that challenge or undermine their norms. Sterling notes, “Devices, laws, or systems that forbid access, and the free spread of knowledge, are provocations that any free and self-respecting hacker should relentlessly attack” (1992, 66). The resort of hackers to technological workarounds is another reason why anti-hacking laws have not been very successful in deterring hackingactivities.

Despite the legal prohibition against different forms of hacking, there is a whole arsenal of tools and techniques that are available to hackers for breaking and making things. There is not enough space in this paper to discuss in detail all of these hacker tools, but the following are some technologies that clearly manifest and advance hacker norms. Free and open source software (FOSS) is a prime example of value-laden hacker technology (Coleman & Golub 2008, 262). FOSS is a type of software program that is covered by a license that allows users and third party developers the rights to freely run, access, redistribute, and modify the program (especially its source code).¹⁶ FOSS such as Linux (computer operating system), Apache (web server software), MySQL (database software) WordPress (content management system), and Android (mobile operating system) are market leaders in their respective sectors and they exert a strong influence on the information technology industry as a whole. The freedoms or rights granted by FOSS licenses advance the ideals of free access to computers and freedom information, which arealso the first tenets of the hacker ethic. What is noteworthy about FOSS and its related licenses is that they too are a convergence of legal rules (copyright and contract law), social norms (hacker values), technical codes (software) and scientific principles (information theory) (Coleman 2009; Benkler 2006, 60). In order to grasp the full meaning and impact of FOSS on society, one mustengage with the attendant plurality of rules. Other noteworthy examples of hacking technologies that hackers use with higher socio-political purposes in mind are Pretty Good Privacy (PGP, an encryption program for secret and secure communications) (Coleman & Golub 2008, 259), BackTrack (security auditing software that includes penetration testing of computer systems), Low Orbit Ion Cannon (LOIC, network stress testing software that can also be used to perform denial-of-service attacks), and circumvention tools such as DeCSS (a computer program that can decrypt content that is protected by a technology protection measure).

Technical codes are an important consideration in the governance of a networked society since “technology is not a means to an end for hackers, it is central to their sense of self – making and using technology is how hackers individually create and how they socially make and reproduce themselves” (Coleman & Golub 2008, 271). While technical codes are not themselves norms, they can embody norms and have normative effects. As such, technical codes too are essential to understanding normativity in a networked society.

Science of hacking

The norms and normative effects of hacking tend to be supported and often magnified by scientific principles and theories. Hackers, for instance, can rely on Moore’s Law and the principle of ‘economies of scale’ (Lemley & McGowan 1998, 494) to plan for and develop technologies that are exponentially faster and cheaper, which can receive the widest distribution possible. Being cognizant of Schumpeter’s ‘process of creative destruction’ (Schumpeter 1962) and Christensen’s related ‘theory of disruptive innovation’ (Christensen 2006), hackers, as innovators and early adopters of technology, are in an ideal position to take advantage of these principles and create new technologies or popularize the use of technologies that can potentially challenge or upend established industries. Creative destruction is Schumpeter’s theory that capitalist society is subject to an evolutionary process that “incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one” (Schumpeter 1962, 82). Schumpeter argues that today’s monopolists industries and oligopolistic actors will naturally and inevitably be destroyed and replaced as a result of competition from new technologies, new goods, new methods of production, or new forms of industrial organization (Schumpeter 1962, 82-83). The revolutionary Apple II personal computer, the widely used Linux open source operating system, the controversial BitTorrent file-sharing protocol, and the ubiquitous World Wide Web are some notable technologies developed by hackers,¹⁷ which through the process of creative destruction profoundly changed not just the economic but the legal, social and technological structures of the networked society as well.

Furthermore, because of their proclivity for open standards, resources and platforms that anyone can freely use and build on, hackers can naturally benefit from principles of network theory such as network effects. According to Lemley,

“Network effects” refers to a group of theories clustered around the question whether and to what extent standard economic theory must be altered in cases in which “the utility that a user derives from consumption of a good increases with the number of other agents consuming the good.” (Lemley & McGowan 1998, 483 (citations omitted))

This means that the more people use a technology, the greater the value they receive from it and the less likely they will use another competing technology. A consequence of network effects is a

natural tendency toward de facto standardization, which means everyone using the same system. Because of the strong positive-feedback elements, systems markets are especially prone to ‘tipping,’ which is the tendency of one system to pull away from its rivals in popularity once it has gained an initial edge.
— Lemley & McGowan 1998

Network effects and the openness of the Android open source mobile operating system may partly explain how Android became dominant in the smartphone market despite the early lead of Apple’s iPhone and iOS. While Apple’s iOS operating system is proprietary, closed and can only be used on Apple’s own devices, developers are free to use, modify and improve the open source software components of Android, and manufacturers can use Android on their devices subject to certain limitations. The success of Android confirms a view that hackers will have no trouble agreeing with – “open always wins… eventually” (Downes 2009).

Creative destruction and network effects are a few of the important scientific principles and theories that influence the networked information society that hackers are able to benefit from. These principles do not merely remain in the background, quietly establishing the conditions and contexts of action, but, as cognitive statements about observed phenomena in nature and the market, they have strong normative effects in their own right and people tend to conform their behavior to these principles.

Rules, rules everywhere

As illustrated in the case of hacking, a pluralist and rules-based approach can be very useful in describing and analyzing legal problems and normative issues brought about by new or disruptive technologies. Attempts by state and non-state actors to adapt to the changing digital environment or to change people’s behaviors can derive much benefit from knowing how the world works. The workings of the networked society can be framed in infinite ways, but, as explained above, seeing these operations in relation to the presence, action and interaction of rules is extremely helpful in making sense of reality. The formation and implementation of laws must therefore take into account the social, technical and scientific rules that govern a subject area or field. This is necessary because behavior in a technology-mediated and scientifically validated world is not only shaped by laws, but equally by norms, technologies, and natural and social phenomena. These four rules, whether as norms as such or through their normative effects, determine the state and degree of normativity in a networked society.

This paper has enlarged the domain of technology law to cover not just legal rules but also extra-legal rules such as social norms, technical code, and scientific principles. The expanded scope should not be bemoaned but instead embraced as a challenge since there are now more interesting people, things and phenomena which technology lawyers and legal scholars can and ought to study. There is nothing wrong with perceiving the networked society in relation to rules. Other academic fields have no problem seeing the world through their own distinct and widelyencompassing disciplinary lenses – for anthropologists it is all about culture, evolutionary biologist focus on the gene, physicists perceive the universe in terms of matter and energy, and information theorists unabashedly see everything as bits. Technology law researchers should not hesitate to say that everything could potentially be about rules. In a world where normative and descriptive rules pervade all aspects of our lives and we have to constantly negotiate all sorts of rules, norms, codes and principles, a pluralist and rules-based approach brings law and technology study much closer to the messy reality that it seeks to understand and explain. Just look around and it is evident that the world is truly normatively complex and full of rules.

Hello CiTiZENs, we are the psychomedia analysts from the XLterrestrials, an arts and praxis group currently based in the last remaining tunnels of Btropolis, still under siege, stocking up on brainfood items, counter-cultural maps, re-embodied detournement and freshly-picked perspectives to make it through to the next autonomous zone alive and intact.

We were once an extremely naive project which landed in the midst of the Silicon Valley screams – the Cali-technotopian 90s – in the belly of the IT beast, and we began to hatch an aberration species of insurrectionist events to keep awake the pre-mediated consciousness, like little pre-Apple organic community pods, keeping a record of living organisms bobbing up and down in the shitstorm, before the next wave of gadgeted colonies could entirely erase the collective memory of rent control, fair wages, job security, health care, world peace, anarchist horizons and fleshy fun in the physical world.

We initially called it “The Transmigration Of Cinema” taking head-on The Spectacle 2.0.

Living in the future means we can read instant missives from teens living under siege instead of diaries years later, yet cruelty persists.
— tweeted by Astra Taylor, documentary maker and author of The People’s Platform.

Here we are now, living a strange fruit future in the digital settlements, where Some people get access to all the information, some to All You Can’t Eat, and others pile high their profits and power and virtual orgy-time scraped from your hourly un-earthed and uncompensated labor to run the world further into the deepest glory-hole ditch. And others still are getting their asses droned into the stone age like the sadist’s best and realest and spectacular-est video game ever. And we all watch!

A sharp Internet Combatant like Astra Taylor may be even too polite ! Reformers beware ! The digital occupation is showing all the signs of an absolute catastrophe, unbound silicon caliphates (like Amazon’s Bezos, Google’s Eric Schmidt, and their media mouthpieces like Tim O’Reilly and Wired’s Kevin Kelly) , a fundamentalist neo-liberal feeding frenzy, technotopian controller extremism holding all the techno-cards… or so it seems. She provides a few glimmers of hope in correcting the balance of empowerments, fighting bravely the feminist and mutli-culturalist fronts, but w/ pacifist-like arms tied behind her back, pointing mainly w/ nods all the ways the civic-minded might strengthen the institutions that can help redeem our creativity and our world from the gaping maw of advertisers and winner-take-all monopole black holes.

Let’s not forget all these communications and tech tools that exist in a predatory- corporate-capitalist environment, practically nothing will be used by the masses as any passionate citizen would desire; They’ll more often than not be turned upside down on their head and implemented to suck you dry. Might we need to focus on changing the operating system before powerful new tech can be applied?!!

But just last night as we were surfing the net like the frozen cat being hoisted toward the militarized and interconnected stars of imperial horizons, unable to focus in the flood of information, and all the images of flattened ancient and sacred cities, the fresh-splattered blood of disemboweled children of the net, and the broken-necked indigenous bodies hanging from all the accelerated money trees…  we stumbled upon a little dusty cultural treasure, a fire really. Yeah, the dust caught fire !

On the Youtubes, an old Killing Joke song at the peak of punk dissent and self-discovering euphoria , a song called “Pssyche”, a b-side of “Wardance” from around 1980. Fortunately, it was not another mesmerizing eye-candy video, just an image of the 7″ single:  Gene Kelly in a tux and top hat dancing over a body of some previous world war corpses. And just that raw thrashing sound of a young band at a pinnacle of their expressive fury ( no doubt fueled by Thatcherism / Snatcherism ). An inspired music project fresh out of the nest, before the popdom factories even had a chance to boil them down into little shrunken product dolls.

You’re alone in the pack,
you’re feeling like you wanna go home
You’re feeling life’s finished but you keep on going,
the reason is there
You won’t find it till you’ve been and gone
because you’re living a hoax!
Someone’s got you sussed!
Dull your brain or seek inspiration
You feel illusion and then you finally say Transfer
Transform a machine to play with your head
So you can stand back and watch
or take part and learn.
If you don’t know the game,
then you’re still part of it...

Jaz Coleman / Killing Joke , almost a prescient and situationist nudge towards a hacker manifesto ( 1980 ) Listen at https://www.youtube.com/watch?v=-RnYhOxz_Zs

It was just enough to shake us from the surfing stupor. We were back on our feet.

“As Lacan used to say about Big Data, it’s far more dangerous for man than the atom bomb.“ tweeted Evgeny Morozov about a year ago, feisty take-no-technotopian-prisoners author of The Net Delusion and Click Here to Save Everything.

We are lost without, at the very least, some punk attitude to these all-seeing, all-sucking, all-managing operating systems now. We can’t meander through the endless “Oil of the 21st century”* and “communicative capitalism”*, through the poppy fields and/or bottomless pits of the disembodied showtime.

We must rise up before the soma poison hits the central nervous system of the collective consciousness. Or else we’ll all lie paralyzed in the web of corporate endgames, and the motherload of transnational black spider data-reaches coming to devour us and our neighborhoods, one by one in our cocooned and misconnected cubicles.

XLterrestrials present CiTiZEN KINO #40 : All You Can’t Eat

All our psychomedia + psychoactive agents got to offer currently is a desperate but blazing tactical maneuver: Going back in mediated history times to re-route the basic Spectacle-code!

Taking cues from Charles Pathe’s day of the newsreels, that 2nd door of the epic new cinema tools, the one that didn’t just lead to 2-hour dreamy avatar-fantasia and phantasm/escapism, but tactical engagements w/ current events. Enter here:  A hyper-linked, sub-poppied tunnel to the days of the dark room public sphere gatherings.

To hack it! To ingest it! To detourn and reconstruct it! To analyze, and plot ahead! Absurd maybe yes, but consider this: Here was the moment when the Eyewars* began, and it could have evolved into some platform for open-sourced, collective intelligence, instead we got the short end of the stick, a downloaded dangling feed from the overlords and infowar profiteers. Like a facepluck, ripped out from a whole head, mined and extracted from the whole communing social body. So, can we go back and re-route the game for true citizen upgrades, from it’s original pre-militarized mass media sources?!! Can we still slip out the back door of this burning digital theater?!!

References

In Ceausescu’s Romania, when media was not only censored, but also strictly limited (there were only 4 hours daily of TV broadcasting dominated by propagandist ceremonies and no football world championships transmissions), people have found tactics to counteract the in-transparent information and the lack of entertainment. They build up antennas to catch neighbor countries’ TV broadcasting (Hungarian, Bulgarian, Serbian or USSR’ ones) or they set up their radios on foreign frequencies. As interesting these technical bricolages could have been, not less striking were the strategic actions of the two political camps of the Cold War era to control and to reinforce their ideological positions. If the “West” was looking to influence the opinion of the Eastern block inhabitants by transmitting “un-maked up” news and trying to establish its cultural productions as alternative norm, Eastern authorities have answered by technically interfering with Western radio broadcasting and by allowing mass cultural movements mixing national ideological contents within westernized cultural forms (as was the case of Cenanclul Flacara in Romania).

The communist context exhibits from this point of view all the faces of an authoritarian system: it employs censorship and surveillance, as well as offensive and defensive mechanisms, it balances between internal control and external defense.

On the other hand, thought liberal in its statements, the Western media knew its own torments. The War in Vietnam, 1968’s European movements, or the Watergate scandal were testing the foundations of press liberty. At the same time, the overall mediatic disclosures were about to install what Guy Debord had called the “society of the spectacle”.

On the other hand, thought liberal in its statements, the Western media knew its own torments. The War in Vietnam, 1968’s European movements, or the Watergate scandal were testing the foundations of press liberty. At the same time, the overall mediatic disclosures were about to install what Guy Debord had called the “society of the spectacle”.

Since the fluidity of radio (or “Hertzian”) space continues to be relevant today, in the age of wireless communication and coded information, the Cold War context is far from being historical and contextual dated. Feeding a fresh perspective on the old debate about “East” and “West” our project investigates the arsenals of producing and reiterating the “Other”.

“Signal to Noise”

“Signal to Noise” is part of the project “Repertories of (in)discreetness” – an art research project that has its starting point in the archives of Radio Free Europe (RFE) from the Open Society Archives in Budapest, considered one of the most important archives of the Cold War period. The project questions the act and mechanisms of archiving the “Other”, with a focus on the European East. It discusses the ways in which information is collected and transferred, the ways in which the East has gained an epistemic body through refraction, as well as the ways in which this body is reiterated today.

“Signal to Noise” is a radio installation dealing with the concreteness of ideological discourses and the imaginary of the “Other”. The minimal and non-visual set-up is composed of two radio stations using the same frequency which intersect and neutralize into a virtual line crossing the space of the exhibition. These two voices consist of archived material of the Cold War era from (Western) Radio Free Europe and (Socialist) Radio Romania. Carrying mobile radios, listeners move through the space in which both broadcasters jam each other and with every motion enact an ever-changing soundscape. As this soundscape is formed by exploring the interference of both radio voices, listeners are caught between two Logos (or two ideological positions), where beyond words, the ideological and media wars embody beings. The result is a spontaneous choreography, re-enacting the “fight over hearts and minds” at the border between East and West as well as recalling the technological and ideological mechanisms used during the Cold War when Radio Free Europe was meant to counterbalance the socialist propaganda in the countries of Eastern Europe – and in consequence was jammed by Eastern authorities.

Modular, “Signal to Noise” can be set up in- or outdoors and can vary the spatial compositions by using varying broadcasting ranges. It may thus function as a temporal intervention in public space, interrupting regular radio programs with its two interfering ideologies. The participants can experience it by using any standard radio receiver.

“Signal to Noise” it is also adaptive. By using different media contents, the installation can address specific political contexts.

“Repertories of (in)discreetness”

In his last – and tragic – essay on the historian’s craft, Marc Bloch praised the societies that endeavor to organize their knowledge, as opposed to those that let themselves be explored after their demise by mere accidental preservation, or even worse, by rumors.

One of the distinctive features of modern Western encyclopedias is to combine utopianism and anxiety over the creation of a “time capsule” archive, systematically embodying the relevant knowledge of a certain age. Oriented towards the present by offering a platform of inter-subjective knowledge to a self-articulated “public”, such universalist constructions also aimed at the future. And the future was supposed to be provided with solid, architecturally organized information.

It is the aim of our project to reverse this process by re(creating), through an artistic aggregate, the ephemeral dimension of these over-arching ideas by re-enacting their documentary corpus and questioning their after-life. The vantage point of our exploration is the extreme case of Radio Free Europe’s archive, which is the result of an extensive operation of “compiling” the world beyond the Iron Curtain while trying to direct its course through missionary broadcasting. The issue we would like to raise is that of the posterity of what was conceived by the officials of the day as the “fight over hearts and minds”¹; what is the relationship between the epistemic body that we were given then, as captive historical subjects of the East, and now, as agents confronted with an epistemic documentary corpus? We are therefore investigating not just the interaction with the past, but the possibilities of extricating ourselves from its conceptual-political frame which was (in)forming while trying to control. In doing so, our project places the accent on the process of archiving itself and thus questions the production of knowledge.

Radio Free Europe is considered unique in the annals of international broadcasting: acting as surrogate domestic broadcaster for the nations under Communism. It also relied on local official media and informal news in order to broadcast what was considered “objective” information. It performed political transcending journalism while anxiously developing a large research apparatus for systematizing knowledge about subjects which were its audience at the same time. Being in a circular relationship with propaganda (decoding it and afterwards monitoring its reactions within an on-going cycle), it was also giving shape to an inaccessible public, instantiated as the “East”. Acting as objective disseminator, it was nevertheless embedded within a theatre of conflicting and yet complementary, mutating knowledge, thus epitomizing the concentric positioning of encyclopedias within layered landscapes of data.

Due to their wish to outline an exhaustive portrait of the world behind the Iron Curtain, Radio Free Europe Archives give way a series of questions. What did the archives not capture? And, if something was indeed captured, how was it transformed through archiving and broadcasting? What parts of this composite portrait sketched by Radio Free Europe still survive today? And is this portrait only a mirror image resulting from the media war between East and West? By raising these questions, our project looks to divert and to put into a sensible perspective the act of collecting, organizing and using information, in order to question the nature of the information itself. Hoping to give form to such a purpose, the project favors situations over concrete artworks - situations in which the visitors will be become engaged in the production of knowledge and the use of informational dilemmas. By mixing archived documents with real time facts and events, the project wants to address media and mediatic constructions of the Other and to interrogate the patterns by which the recorded facts resurface in different context and through different media.²

notes

Any error may vitiate the entire output of the device. For the recognition and correction of such malfunctions intelligent human intervention will in general be necessary.
— John von Neumann, First Draft of a Report on the EDVAC, 1945

If you can’t blog, tweet! If you can’t tweet, like!
— Kim Dotcom, Mr. President, 2012

Invisible and Very Busy

Computers are getting invisible. They shrink and hide. They lurk under the skin and dissolve in the cloud. We observe the process like an eclipse of the sun, partly scared, partly overwhelmed. We divide into camps and fight about advantages and dangers of The Ubiquitous. But whatever side we take — we do acknowledge the significance of the moment.

With the disappearance of the computer, something else is silently becoming invisible as well — the User. Users are disappearing as both phenomena and term, and this development is either unnoticed or accepted as progress — an evolutionary step.

The notion of the Invisible User is pushed by influential user interface designers, specifically by Don Norman a guru of user friendly design and long time advocate of invisible computing. He can be actually called the father of Invisible Computing.

Those who study interaction design read his “Why Interfaces Don’t Work” published in 1990 in which he asked and answered his own question: “The real problem with the interface is that it is an interface”. What’s to be done? “We need to aid the task, not the interface to the task. The computer of the future should be invisible!”¹

It took almost two decades, but the future arrived around five years ago, when clicking mouse buttons ceased to be our main input method and touch and multi-touch technologies hinted at our new emancipation from hardware. The cosiness of iProducts, as well as breakthroughs in Augmented Reality (it got mobile), rise of wearables, maturing of all sorts of tracking (motion, face) and the advancement of projection technologies erased the visible border between input and output devices. These developments began to turn our interactions with computers into pre-computer actions or, as interface designers prefer to say, “natural” gestures and movements.

Of course computers are still distinguishable and locatable, but they are no longer something you sit in front of. The forecasts for invisibility are so optimistic that in 2012 Apple allowed to themselves to rephrase Norman’s predictive statement by putting it in the present tense and binding it to a particular piece of consumer electronics:

We believe that technology is at its very best when it is invisible, when you are conscious only of what you are doing, not the device you are doing it with […] iPad is the perfect expression of that idea, it’s just this magical pane of glass that can become anything you want it to be. It’s a more personal experience with technology than people have ever had.²

In this last sentence, the word “experience” is not an accident, neither is the word “people”.

Invisible computers, or more accurately the illusion of the computerless, is destroyed if we continue to talk about “user interfaces”. This is why Interface Design starts to rename itself to Experience Design — whose primary goal is to make users forget that computers and interfaces exist. With Experience Design there is only you and your emotions to feel, goals to achieve, tasks to complete.

The field is abbreviated as UXD, where X is for eXperience and U is still for the Users. Wikipedia says Don Norman coined the term UX in 1995. However, in 2012 UX designers avoid to use the U-word in papers and conference announcements, in order not to remind themselves about all those clumsy buttons and input devices of the past. Users were for the interfaces. Experiences, they are for the PEOPLE!³

In 2008 Don Norman simply ceased to address Users as Users. At an event sponsored by Adaptive Path, a user interface design company, Norman stated “One of the horrible words we use is users. I am on a crusade to get rid of the word ‘users’. I would prefer to call them ‘people.’”⁴ After enjoying the effect of his words on the audience he added with a charming smile, “We design for people, we don’t design for users.”

A noble goal in deed, but only when perceived in the narrow context of Interface Design. Here, the use of the term “people” emphasizes the need to follow the user centered in opposition to an implementation centered paradigm. The use of “people” in this context is a good way to remind software developers that the User is a human being and needs to be taken into account in design and validation processes.

But when you read it in a broader context, the denial of the word “user” in favor of “people” becomes dangerous. Being a User is the last reminder that there is, whether visible or not, a computer, a programmed system you use.

In 2011 new media theoretician Lev Manovich also became unhappy about the word “user”. He writes on his blog “For example, how do we call a person who is interacting with digital media? User? No good.”⁵

Well, I can agree that with all the great things we can do with new media — various modes of initiation and participation, multiple roles we can fill — that it is a pity to narrow it down to “users”, but this is what it is. Bloggers, artists, podcasters and even trolls are still users of systems they didn’t program. So they (we) are all the users.

We need to take care of this word because addressing people and not users hides the existence of two classes of people — developers and users. And if we lose this distinction, users may lose their rights and the opportunity to protect them. These rights are to demand better software, the ability “to choose none of the above”⁶, to delete your files, to get your files back, to fail epically and, back to the fundamental one, to see the computer.

In other words: the Invisible User is more of an issue than an Invisible Computer.

What can be done to protect the term, the notion and the existence of the Users? What counter arguments can I find to stop Norman’s crusade and dispel Manovich’s skepticism? What do we know about a user, apart from the opinion that it is “no good” to be one?

We know that it was not always like this. Before Real Users (those who pay money to use the system) became “users”, programmers and hackers proudly used this word to describe themselves. In their view, the user was the best role one could take in relation to their computer.⁷

Furthermore, it is wrong to think that first there were computers and developers and only later users entered the scene. In fact, it was the opposite. At the dawn of personal computer the user was the center of attention. The user did not develop in parallel with the computer, but prior to it. Think about Vanevar Bush’s “As we May Think” (1945), one of the most influential texts in computer culture. Bush spends more words describing the person who would use the Memex than the Memex itself. He described a scientists of the future, a superman. He, the user of the Memex, not the Memex, itself was heading the article.⁸

20 years later, Douglas Engelbart, inventor of the pioneering personal computer system NLS, as well as hypertext, and the mouse, talked about his research on the augmentation of human intellect as “bootstraping” — meaning that human beings, and their brains and bodies, will evolve along with new technology. This is how French sociologist Thierry Bardini describes this approach in his book about Douglas Engelbart: “Engelbart wasn’t interested in just building the personal computer. He was interested in building the person who could use the computer to manage increasing complexity efficiently.”⁹

And let’s not forget the title of J.C.R. Licklider’s famous text, the one that outlined the principles for APRAs Command and Control research on Real Time System, from which the interactive/personal computer developed — Man-Computer Symbiosis (1960).¹⁰

When the personal computer was getting ready to enter the market 15 years later, developers thought about who would be model users. At XEROX PARC, Alan Kay and Adele Goldberg introduced the idea of kids, artists, musicians and others as potential users for the new technology. Their paper “Personal Dynamic Media” from 1977¹¹ describes important hardware and software principles for the personal computer. But we read this text as revolutionary because it clearly establishes possible users, distinct from system developers, as essential to these dynamic technologies. Another Xerox employee, Tim Mott (aka “The father of user centered design”) brought the idea of a Secretary into the imagination of his colleagues. This image of the “Lady with the Royal Typewriter”¹² predetermined the designs of XEROX Star, Apple Lisa and and further electronic offices.

So, it’s important to acknowledge that users existed prior to computers, that they were imagined and invented — Users are the figment of the imagination. As a result of their fictive construction, they continued to be re-imagined and re-invented through the 70’s, 80’s, 90’s, and the new millennium. But however reasonable, or brave, or futuristic, or primitive these models of users were, there is a constant.

Let me refer to another guru of user centered design, Alan Cooper. In 2007, when the U word was still allowed in interaction design circles, he and his colleagues shared their secret in “About Face, The Essentials of Interaction Design”:

“As an interaction designer, it’s best to imagine that users – especially — beginners — are simultaneously very intelligent and very busy.”¹³

It is very kind advice (and one of the most reasonable books on interface design, btw) and can be translated roughly as “hey, front end developers, don’t assume that your users are more stupid than you, they are just busy.” But it is more than this. What the second part of this quote gets to so importantly is that Users are people who are very busy with something else.

Alan Cooper is not the one who invented this paradigm, and not even Don Norman with his concentration on task rather than the tool. It originated in the 1970’s. Listing the most important computer terms of that time, Ted Nelson mentions so called “user level systems” and states that these “User-level systems, [are] systems set up for people who are not thinking about computers but about the subject or activity the computer is supposed to help them with.”¹⁴ Some pages before he claims:

¹⁵One should remember that Ted Nelson was always on the side of users and even “naïve users” so his bitter “just a user” means a lot.

Alienation of users from their computers started in XEROX PARC with secretaries, as well as artists and musicians. And it never stopped. Users were seen and marketed as people who’s real jobs, feelings, thoughts, interests, talents — everything what matters — lie outside of their interaction with personal computers.

For instance, in 2007, when Adobe, the software company who’s products are dominating the so called “creative industries”, introduced version 3 of Creative Suite, they filmed graphic artists, video makers and others talking about the advantages of this new software package. In particular interesting was one video of a web designer (or an actress in the role of a web designer): she enthusiastically demonstrated what her new Dream Weaver could do, and that in the end “I have more time to do what I like most — being creative”. The message from Adobe is clear. The less you think about source code, scripts, links and the web itself, the more creative you are as a web designer. What a lie. I liked to show it to fresh design students as an example of misunderstanding the core of the profession.

This video is not online anymore, but actual ads for Creative Suite 6 are not much different – they feature designers and design evangelists talking about unleashing, increasing and enriching creativity as a direct result of fewer clicks to achieve this or that effect.¹⁶

In the book “Program or be Programmed”, Douglas Rushkoff describes similar phenomena:

[…] We see actual coding as some boring chore, a working class skill like bricklaying, which may as well be outsourced to some poor nation while our kids play and even design video games. We look at developing the plots and characters for a game as the interesting part, and the programming as the rote task better offloaded to people somewhere else.¹⁷

Rushkoff states that code writing is not seen as a creative activity, but the same applies to engagement with the computer in general. It is not seen as a creative task or as “mature thought”.

In “As we may think”, while describing an ideal instrument that would augment the scientist of the future, Vanevar Bush mentions

For mature thought there is no mechanical substitute. But creative thought and essentially repetitive thought are very different things. For the latter there are, and may be, powerful mechanical aids¹⁸

Opposed to this, users, as imagined by computer scientists, software developers and usability experts are the ones who’s task is to spend as little time as possible with the computer, without wasting a single thought on it. They require a specialized, isolated app for every “repetitive thought”, and, most importantly, delegate drawing the border in between creative and repetitive, mature and primitive, real and virtual, to app designers.

There are periods in history, moments in life (and many hours a day!) where this approach makes sense, when delegation and automation are required and enjoyed. But in times when every aspect of life is computerized it is not possible to accept “busy with something else” as a norm.

So let’s look at another model of users that evolved outside and despite usability experts’ imagination.

General Purpose, “Stupid” and Universal

In “Why Interfaces Don’t Work” Don Norman heavily criticizes the world of visible computers, visible interfaces and users busy with all this. Near the end of the text he suggests the source of the problem:

“We are here in part, because this is probably the best we can do with today’s technology and, in part, because of historical accident. The accident is that we have adapted a general-purpose technology to very specialized tasks while still using general tools.”¹⁹

In December 2011 science fiction writer and journalist Cory Doctorow gave a marvelous talk at the 28th Chaos Communication Congress in Berlin titled “The coming war on general computation”.²⁰ He explains that there is only one possibility for computers to truly become appliances, the tiny, invisible, comfortable one purpose things Don Norman was preaching about: to be loaded with spyware. He explains,

“So today we have marketing departments who say things like ‘[…] Make me a computer that doesn’t run every program, just a program that does this specialized task, like streaming audio, or routing packets, or playing Xbox games’ […] But that’s not what we do when we turn a computer into an appliance. We’re not making a computer that runs only the “appliance” app; we’re making a computer that can run every program, but which uses some combination of rootkits, spyware, and code-signing to prevent the user from knowing which processes are running, from installing her own software, and from terminating processes that she doesn’t want. In other words, an appliance is not a stripped-down computer — it is a fully functional computer with spyware on it out of the box.”

By fully functional computer Doctorow means the general purpose computer, or as US mathematician John von Neumann referred to it in his 1945 “First Draft of a Report on the EDVAC” — the “all purpose automatic digital computing system”.²¹ In this paper he outlined the principles of digital computer architecture (von Neumann Architecture), where hardware was separated from the software and from this the so called “stored program” concept was born. In the mid 40’s the revolutionary impact of it was that “by storing the instructions electronically, you could change the function of the computer without having to change the wiring.”²²

Today the rewiring aspect doesn’t have to be emphasized, but the idea itself that a single computer can do everything is essential, and that it is the same general purpose computer behind “everything” from dumb terminals to super computers.

Doctorow’s talk is a perfect entry point to get oneself acquainted with the subject. To go deeper into the history of the war on general computation you may consider reading Ted Nelson. He was the first to attract attention to the significance of the personal computer’s all-purpose nature. In 1974 in his glorious fanzine “Computer Lib” which aimed to explain computers to everybody, he writes in caps lock:

COMPUTERS HAVE NO NATURE AND NO CHARACTER
Computers are, unlike any other piece of equipment, perfectly BLANK. And that is how we have projected on it so many different faces.²³

Some great texts written this century are “The Future of the Internet and How to Stop It” (2008) by Jonathan Zittrain and of course “The Future of Ideas” (2001) by Lawrence Lessig. Both authors are more concerned with the architecture of the internet than the computer itself but both write about the end-to-end principle that lies at the internet’s core — meaning that there is no intelligence (control) build into the network. The network stays neutral or “stupid”, simply delivering packets without asking what’s inside. It is the same with the von Neuman computer — it just runs programs.

The works of Lessig, Zittrain and Doctorow do a great job of explaining why both computer and network architectures are neither historic accidents nor “what technology wants”.²⁴ The stupid network and the general purpose computer were conscious design decisions.

For Norman, further generations of hardware and software designers and their invisible users dealing with General Purpose technology is both accident and obstacle. For the rest of us the rise and use of General Purpose Technology is the core of New media, Digital Culture and Information Society (if you believe that something like this exists). General purpose computers and Stupid Networks are the core values of our computer-based time and the driving force behind all the wonderful and terrible things that happen to people who work and live with connected computers. These prescient design decisions have to be protected today, because technically it would be no big deal to make networks and computers “smart”, i.e. controlled.

What does it all have to do with “users” versus “people” — apart from the self evident fact that only the users who are busy with computers at least a little bit — to the extent of watching Doctorow’s video till the end — will fight for these values?

I would like to apply the concept of General Purpose Technology to users by flipping the discourse around and redirecting attention from technology to the user that was formed through three decades of adjusting general purpose technology to their needs: The General Purpose User.

General Purpose Users can write an article in their e-mail client, layout their business card in Excel and shave in front of a web cam. They can also find a way to publish photos online without flickr, tweet without twitter, like without facebook, make a black frame around pictures without instagram, remove a black frame from an instagram picture and even wake up at 7:00 without a “wake up at 7:00” app.

Maybe these Users could more accurately be called Universal Users or Turing Complete Users, as a reference to the Universal Machine, also known as Universal Turing Machine — Alan Turing’s conception of a computer that can solve any logical task given enough time and memory. Turing’s 1936 vision and design predated and most likely influenced von Neuman’s First Draft and All-purpose Machine.

But whatever name I chose, what I mean are users who have the ability to achieve their goals regardless of the primary purpose of an application or device. Such users will find a way to their aspiration without an app or utility programmed specifically for it. The Universal user is not a super user, not half a hacker. It is not an exotic type of user.

There can be different examples and levels of autonomy that users can imagine for themselves, but the capacity to be universal is still in all of us. Sometimes it is a conscious choice not to delegate particular jobs to the computer, and sometimes it is just a habit. Most often it is not more than a click or two that uncover your general purpose architecture.

For instance, you can decide not to use Twitter at all and instead inform the world about your breakfast through your own website. You can use Live Journal as if it is Twitter, you can use Twitter as Twitter, but instead of following people, visit their profiles as you’d visit a homepage.

You can have two Twitter accounts and log in to one in Firefox, and the other in Chrome. This is how I do it and it doesn’t matter why I prefer to manage it this way. Maybe I don’t know that an app for managing multiple accounts exists, maybe I knew but didn’t like it, or maybe I’m too lazy to install it. Whatever, I found a way. And you will do as well.

A Universal User’s mind set (it is a mind set, not set of rules, not a vow) means to liaise with hardware and software. Behavior that is antipodal to the “very busy” user. This kind of interaction makes the user visible, most importantly to themselves. And, if you wish to think about it in terms of Interface Design and UX, it is the ultimate experience.

Does this mean that to deliver this kind of user experience the software industry needs to produce imperfect software or hold itself back from improving existing tools? Of course not! Tools can be perfect.

Though the idea of perfect software could be revised, taking into account that it is used by the General Purpose User, valuing ambiguity and users’ involvement.

And thankfully ambiguity is not that rare. There are online services where users are left alone to use or ignore features. For example, the developers of Twitter didn’t take measures that prevent me from surfing from profile to profile of people I don’t follow. The Dutch social network Hyves allows their users to mess around with background images so that they don’t need any photo albums or instagrams to be happy. Blingee.com, who’s primary goal is to let users add glitter to their photos, allows to upload whatever stamps they want — not glittery, not even animated. It just delivers the user merged layers in return.

I can also mention here an extreme example of a service that nourishes the user’s universality — myknet.org — an Aboriginal social network in Canada. It is so “stupid” that users can re-purpose their profiles every time they update them. Today it functions as a twitter feed, yesterday it was a youtube channel, and tomorrow it might be an online shop. Never-mind that it looks very low-tech and like it was made 17 years ago, it works!

In general the WWW, outside of Facebook, is an environment open for interpretation.

Still, I have difficulties finding a site or an app, that actually addresses the users, and sees their presence as a part of the work flow. This maybe sounds strange, because all web 2.0 is about pushing people to contribute, and “emotional design” is supposed to be about establishing personal connections in between people who made the app and people who bought it, but I mean something different. I mean a situation when the work flow of an application has gaps that can be filled by users, where smoothness and seamlessness are broken and some of the final links in the chain are left for the users to complete.

I’ll leave you with an extreme example, an anonymous (probably student) project:
“Google Maps + Google Video + Mashup — Claude Lelouch’s Rendezvous”:

It was made in 2006, at the very rise of Web 2.0²⁵, when the mash-up was a very popular cultural, mainstream artistic form. Artists were celebrating new convergences and a blurring of the borders between different pieces of software. Lelouch’s Rendezvous is a mash up that puts on the same page the famous racing film of the same name and a map of Paris, so that you can follow the car in the film and see its position on the Google map at the same time. But the author failed (or perhaps didn’t intend) to synchronize the video and the car’s movement on the map. As a result the user is left with the instruction: “Hit play on the video. […] At the 4 second mark, hit the ‘Go!’ button.”

The user is asked not only to press one but two buttons! It suggests that we take care ourselves, that we make can complete a task at the right moment. The author obviously counts on users intelligence, and never heard that they are “very busy”.

The fact that the original video file that was used in the mash up was removed, makes this project even more interesting. To enjoy it, you’ll have to go to YouTube and look for another version of the film. I found one, which means you’ll succeed as well.

There is nothing one user can do, that another can’t given enough time and respect. Computer Users are Turing Complete.

When Sherry Turkle, Douglas Rushkoff and other great minds state that we need to learn programming and understand our computers in order to not be programmed and “demand transparency of other systems”²⁶, I couldn’t agree more. If the approach to computer education in schools was to switch from managing particular apps to writing apps it will be wonderful. But apart from the fact that it is not realistic, I would say it is also not enough. I would say it is wrong to say either you understand computers or u are the user.²⁷

An effort must be made to educate the users about themselves. There should be understanding of what it means to be a user of an “all purpose automatic digital computing system”.

General Purpose Users are not a historic accident or a temporary anomaly. We are the product of the “worse is better” philosophy of UNIX, the end-to end principle of the internet, the “under construction” and later “beta” spirit of the web. All these designs that demand attention, and ask for forgiveness and engagement formed us as users, and we are always adjusting, improvising and at the same time taking control. We are the children of the misleading and clumsy Desktop Metaphor, we know how to open doors without knobs.²⁸

We, general purpose users — not hackers and not people — who are challenging, consciously or subconsciously, what we can do and what computers can do, are the ultimate participants of man-computer symbiosis. Not exactly the kind of symbiosis Licklider envisioned, but a true one.

Iain Duncan Smith’s plans to force claimants to spend hours a week endlessly searching for jobs on the Universal Jobmatch website* could become a laughing stock after the launch this week of an app which will carry out  jobsearch automatically.

According to their website, Universal Automation is a “browser extension which will automatically search for jobs on Universal Jobmatch and apply for them. It is the robot that will perform useless job search activities instead of you at a click of a button.”

In a humiliating blow to the DWP’s plans to turn Universal Jobmatch into a virtual workhouse, it seems that technology could make these plans redundant.  Whilst the app is in early stages of development this is exactly the kind of technological innovation that some analysts have claimed could replace up to half of jobs in the next couple of decades.

As apps like this become more sophisticated it is easy to imagine that all jobsearch could soon be fully automated.  Employers are unlikely to mind, as methods of recruitment will no doubt follow a similar pattern.  No matter how much Iain Duncan Smith stamps his foot – and expect a tantrum when he finds out about this – his digital by default welfare reforms look to have already been out-digitised and now seem to belong to the last century.

Universal Automation – which I have on good authority comes from a trusted source – can be downloaded from:  http://automation.strikenow.org.uk/get-the-extension/

As mentioned this is at an early stage of development, so read all the guidance notes and use at your own risk – those behind Universal Automation have called for feedback and techies who are interested in helping to get in touch. 

*Universal Jobmatch is the government run job seeking website built at huge expense by Monster Jobs and which is designed to snoop on claimant’s job-seeking activity.  The project has been an utter shambles with thousands of fake or spam job vacancies listed along with vacancies for sex work – against current DWP policy – as well as spoof jobs and outright scams.

Despite this hundreds of thousands of unemployed claimants have been forced to register with the website under the threat of losing their benefits.  Whilst registration can be compelled, there is currently no requirement to tick the box allowing the DWP to snoop on your jobsearch (you can also untick the box which asks if they can send you emails).

The open-source/free-software movement has quite a good reputation on the Left.¹ This is not simply because of the fact that open-source developers provide things for free which usually cost money, but also because the free-software movement often is regarded as an opposition or even a practical counter project to capitalist private property. Hence, this text investigates the apparent contradiction that a licence – an assertion of ownership – guarantees universal access, while being simultaneously adopted and promoted by multinational IT corporations for their own profit.

Intangible goods are different …

Indeed, at least some people within the movement do seem to be bothered about property, at least where it specifically affects digital goods. Indeed, in terms of what they actually are, physical goods and so-called “intangible” goods differ.

If someone uses my bike, I cannot use it at the same time. Ideas, however, such as those expressed in this text, can be distributed and shared with others without ever running out of them. For example, we do not know less of the content of this text when the readers know more about it. But still: reading the text, comprehending it, finding mistakes, that we might have made, are intellectual efforts every time we accomplish them – activities that are both time consuming and full of preconditions, e.g. one is required to have learned how to read. Hence, distribution is not to be had entirely “free” and without any (basic) requirements. The text itself, however, and the information it contains bears the particular feature that it can be copied (and, by implication, transferred, displayed, made available, in short: used) any number of times. Once certain (basic) requirements are established (e.g. a computer is at hand, an Internet connection is up and running), it is fairly cheap to duplicate a file containing this text – the effort becomes close to zero at some point.

… and with them, property appears differently

It seems an ‘artificial’ and unnecessary restriction to stamp private property on ideas, files or other ‘containers of information’ milling about – for the single reason that one is used to copying those files. From this, first of all, it may be noted that the quality of being property is ascribed to things. It is not a characteristic inherent to them, i.e. necessarily or naturally ‘comes with’ things. Secondly, it is apparent that it is not allowed to make copies of some files, e.g. most music. It is illegal to distribute such files. With regard to files this seems, at first sight, rather absurd since their distribution neither changes nor damages their content. So, when it comes to ‘intellectual property’, property appears differently. Namely, it appears more obviously that state authority restricts its use through patent, copyright and other laws. This way it becomes very distinctly recognisable what property actually is – a barrier.

Moreover, scientific and technical results were products of collaboration long before the beginning of digital information processing. This is because even the smallest discovery or invention is based on a host of other discoveries and inventions; so many that the respective originators only know a fraction of the sources from which their content derives. Mathematical findings are based on other mathematical findings, software is based on ideas found in other software packages or relies on those packages directly.² Thus, in order to make progress in research and development, access to what is already known is required. If nowadays intellectual property titles continuously are used and defended, i.e. if access and applicability of existing information is restricted by law, then this prevents the development of new ideas. Property appears as something arbitrarily separating that which essentially belongs together. Not only is property a barrier to access to existing things or knowledge, but is even a barrier to the discovery and development of new ones.

The absence of property relations as norm

The concept of open source emerged alongside the development of mainframes, personal computers and the Internet and it also pushed these developments forward. The starting point for the open-source movement was the acknowledgement of some particular qualities of digital goods, especially their lossless reproducibility and the implications for software development that come with this quality. The movement’s protagonists knew how to take advantage of those qualities in their work and, hence, focused on their social requirements. It was a new phenomenon to concern oneself with this topic in the beginning of the field of computer science. From around the 1950s on, free access to and a de facto unrestricted use of all required information went without saying – at least with regard to software. This, anyhow, applied to people with the respective knowledge working at the relevant, well-equipped research institutions. Software simply was a free add-on that came with massive, expensive mainframes. Accordingly, it was openly distributed, studied and changed.

Only from the mid-1970s, a market for proprietary software developed, i.e. software that one is not allowed to freely modify and distribute. Companies such as Microsoft started doing business by selling software and especially licences granting the right to use this software.³ People such as Richard Stallman – founder of the GNU Project, the best-known free-software licence, the General Public License (GPL) – stepped up against this new movement in order to retain the status quo. Stallman and his colleagues developed software together and their demand was that others should be able to study, use and distribute their products. Indeed, from the standpoint of well-planned production of useful things, this is a sensible position.

Property – a standard for the world of physical things?

The open-source/free-software movement started off with the GNU Project. It is important to this movement today that property relating to intangible goods has to play an inferior or different role than property regarding other, i.e. material, things. The reason for this – according to this movement – is to be found in the particularity of intangible goods themselves.

For example, the German Pirate Party – as other Pirate Parties concerned with issues at the crossroad of democracy and the digital life – writes in its manifesto, “Systems that obstruct or prevent the reproduction of works on a technical level (’copy protection’, ’DRM’, etc.) artificially reduce their availability in order to turn a free good into an economical good. The creation of artificial shortage for mere economical interests appears to us as amoral; therefore we reject this procedure. […] It is our conviction that the non-commercial reproduction and use of works should be natural; and that the interests of most originators are not negatively affected by this – despite contrary statements of particular interest groups.”⁴

With regard to digital goods, the members of the Pirate Party complain that by means of a title of ownership access to information is “artificially” prevented, which goes against information’s “natural” feature of being copyable: “information wants to be free”. At the same time, they see no reason to make the same claim for material things. According to the logic of the party’s political programme, those are “economical goods” quite by themselves. An assumption that seems so self-evident to the authors that they do not explicitly mention it.

The GNU Project, on the contrary, explicitly addresses the assumed distinction between non-material and material: “Our ideas and intuitions about property for material objects are about whether it is right to take an object away from someone else. They don’t directly apply to making a copy of something. But the owners ask us to apply them anyway. […] But people in general are only likely to feel any sympathy with the natural rights claims for two reasons. One reason is an overstretched analogy with material objects. When I cook spaghetti, I do object if someone else eats it, because then I cannot eat it. His action hurts me exactly as much as it benefits him; only one of us can eat the spaghetti, so the question is, which one? The smallest distinction between us is enough to tip the ethical balance. But whether you run or change a program I wrote affects you directly and me only indirectly. Whether you give a copy to your friend affects you and your friend much more than it affects me. I shouldn’t have the power to tell you not to do these things. No one should.”⁵

However, this distinction between material and non-material goods is not correct.

1) The GNU Project claims that a difference between spaghetti and a program is that the former can only be consumed by one person, while the latter can be used by indefinitely many people. Hence, for the GNU Project the former implies the need for private property while the latter does not. Yet, under the regime of property it does not matter whether an owner actually uses her stuff or not. When people think about property in material goods, they have their personal belongings in mind, things they need more or less regularly. But this is not the main point of private property – the way it works is much more far reaching and fundamental. For example, squatted houses get evicted to stand empty again, pieces of woodland are fenced in by their owners even if they live hundreds of miles away or supermarkets lock their bins to prevent people from dumpster diving. The question whether someone could make use of something is subordinate to ownership, not the other way around. Property applies no matter whether the owner or someone else, e.g. in return for payment, uses it. Making successful claims to an absolute disposal over wealth of whatever kind and whatever quantity regardless of neediness – this is private property. Regardless of material or intangible goods, the regime of property does not care who wants to use what and how. Whereas it is true that only one person can eat one’s fill given only one serving of spaghetti, under the regime of private property to own spaghetti is the condition for eating them, but the desire to eat them does not establish ownership. So, in this respect the material vs. non-material distinction is wrong.

2) In one respect though, need does play a role, namely a negative one. Property in a machine indicates the exclusion of third parties from using that machine. One cannot enter into an ownership relation with a machine because a machine is not eligible for a legal relationship. It is the same with a disc containing a copy of a Windows operating system on it. One is not allowed to install it merely because this disc lies around somewhere unused. The particular function of a title of ownership for the owner is strictly that others may not use her property without her consent, even though they might want to and perhaps even be physically able to do so. What friends of free software notice and highlight with regard to digital goods could also be observed with regard to ordinary material things: it is a fact that property is a relationship between people in regard to things, but not immediately between things and people. If no one else is there, it does not really matter what belongs to me or what I simply use. This only becomes relevant when others want to have access, too. Property is a barrier between those who want to use a thing and the thing itself, between need and the means to satisfy it. The guarantee for property in material things does not exist despite but because people want, need, require them. To own bread and all the more to own a bread factory is significant because other people are hungry. Otherwise, what would be the point of guaranteeing the right of exclusive disposal?

3) Furthermore, with respect to reproducibility a rigorous contrast, material vs. intangible, does not exist either. It is possible to produce things and this means nothing else than to eradicate the detected scarcity. There is no such thing as a particular finite number of bread knives in the world, more can be manufactured. Indeed, one has to do something for it, but nothing simply is “in short supply”.⁶ However, in order to manufacture something one has to have access to the means of production which, again, are privately owned. And in this regard – again – it does not matter whether one ‘really’ needs them or whether they are currently in use.

Yet, there is indeed a difference between software and bread knives: the contemporary means of production for software meanwhile are cheap mass products that most people have at home anyways. One can write a lot of state-of-the-art software with a five year old computer from a car boot sale.⁷ Thus, the production of software ‘only’ requires an investment of education and labour time, while when it comes to, e.g., bread knives one is excluded from the means of production at the level of the state-of-the-art. In order to be able to produce bread knives one would indeed need the corresponding factory, and this wants to be bought first.

4) The means of production are not simply “in short supply” either but can also be produced, by and large. One is excluded from the means of production as their purpose for the owner is access to the wealth of society in the form of money. The owner knows she has to come to agreements with others in order to get their products. Hence, she uses her factory – as well as people who do not have one, i.e. workers – to manufacture something that she can sell. With the proceeds she then can either buy goods for herself or she can reinvest in workers and means of production so that another round of fun may commence. In a society based on the division of labour one is dependent on others and their products, be it intangible or material goods. Because in this society this trivial fact does not lead to a self-conscious interaction of producers but rather the regime of property prevails, one is excluded from the products of others and therefore is required to exploit their needs to one’s own advantage. This absurdity can be put differently: it is precisely because one is dependent on others that one insists on the exclusion of others from what one owns. If everyone gives only if given an equivalent in return, then certainly it makes sense to deploy what one has as means of access to the stuff under the control of others by matching their exclusion with one’s own.

Property is characterised by exclusion whether it concerns material or immaterial goods. The free-software movement disagrees though – and it shares this fallacy with the majority of people. In other words: the political wing of the free-software movement insists on drawing a strict distinction between digital and material goods in order to criticise the regime of property regarding digital goods. Yet, it is exactly their line of argument that reaffirms the exclusion from the things people need: the regime of property. Some radical activists want to use free software as a tool for the abolition of private property, for example the slogan “free software today, free carrots tomorrow” can be read this way. This is futile as the the reference to the free-software movement’s ‘criticism of property’ takes up the false idea of free software proponents that carrots can never be free and for all instead of critiquing it.

Copyleft licences – critique of property law by legal means

Access to open-source software is defined and regulated in legal terms. First of all, copyright law applies regardless of what the author chooses to do. This law forms the general basis and is applied by the state to anything it considers to have a creator. But moreover, an open-source licence determines what anyone else is allowed and not allowed to do with, say, a piece of software by means of the law – no difference from other areas of bourgeois society. Usually open-source licences allow to read, modify and further distribute the source code.⁸ The various licences differ considerably in terms of their precise provisions. Roughly, there are two versions of openness. The above mentioned GPL determines that any program using software parts licensed under the GPL has to entirely be licensed under the GPL or a compatible licence as well. This means that the licence is ‘virulent’ and components mutually affect each other. It is, for instance, not allowed to simply take the Linux kernel (i.e. the operating system’s core) modify it here and there and then distribute the result without also releasing the source code of the modifications. In contrast, the BSD-family of licences is less strict.⁹ BSD programs are part of Microsoft Windows, for example, and there is no obligation to publish any source code. The licence mainly stipulates what must happen if source code is distributed, namely that copyright holders must be named. Secondly, it provides that no one may sue the authors in case something goes wrong. An exclusion of liability: the software is provided “as is”. Both camps – GPL vs. BSD – do not get tired arguing these differences. The GPL camp holds that liberty is to be protected by force whereas the BSD camp is convinced this way liberty is lost.¹⁰ Who is right, whether this question even can be settled or not or whether it cannot be conclusively answered because this type of freedom includes its opposite – domination – is perhaps better saved for another text. Here, we may conclude, though, that this kind of practical criticism of property necessarily presupposes a title to ownership in a software product. This is the reason why Richard Stallman calls the GPL a “legal hack”, i.e. a trick on legal grounds¹¹: one insists on one’s property by way of claiming the terms of a licence in order to guarantee free access.¹²

But, “you can’t hack the law”¹³. The legal system – guaranteed by the state’s authority – cannot be tricked: licences (no matter what kind) are legally binding contracts following the logic of the law that, if in doubt, always can be enforced in case one of the contracting parties claims its right.¹⁴ The result of this is that, e.g. scientists who make their research-software available to others have to deal with a maze of different incompatible licence versions. Hence, questions such as the following arise: am I legally allowed to combine another scientist’s open-source software with my own?¹⁵ A creative use of and tricking the law – Stallman & Co. creatively use the law – turns into principal submission to the law – the law dictates Stallman & Co. its terms – that is how the law works.

Moreover, such a “hack” develops its very own dynamic in a society of law appreciating citizens. The field in which licences are applied in this manner has meanwhile massively grown. The Creative Commons movement¹⁶ recommends scientists, creative artists as well as hobby photographers uploading their holiday snapshots to the Internet to claim ownership of their respective products of information. They are encouraged to exclude third parties more or less from using such products by choosing from a toolbox of legal restrictions. Contrary to Richard Stallman, the Creative Commons initiative by Lawrence Lessig does not problematise the really existing copyright regime. Hence, the initiative quite correctly notes: “Creative Commons licenses are copyright licenses –- plain and simple. CC-licenses are legal tools that creators can use to offer certain usage rights to the public, while reserving other rights. Without copyright, these tools don’t work.”¹⁷ Meanwhile, even things that a few years back no one would have expected to be ruled by copyright law, such as the above mentioned holiday snapshots, are now subsumed under its regime.¹⁸

How deeply ingrained the formalism of the law is in these peoples’ minds is aptly expressed by the controversy around the DevNations 2.0 Licence and its subsequent withdrawal.¹⁹ The DevNations 2.0 Licence stipulated that people from ‘developing countries’ were allowed to use products under the licence free of cost whereas people from capitalist centres were not entitled to this. Hence, it was a licence that at least acknowledged real material differences.²⁰ The licence was withdrawn because of its discrimination against people living in rich countries. Hence, it violated the equality before the law; but this equality, i.e. non-discrimination, is a requirement for any licence hoping to be verified as an open-source licence by the Open Source Initiative. If the open-source movement is said to have started off with a criticism of property – even if restricted to intangible goods –- or that it was bothered by people being excluded from the digital wealth of societies, then it is safe to say it achieved the opposite: you cannot hack the law. What remains is to (practically) critique it.

Software commons for profits

The open-source movement succeeds because it gets along well with an IT industry whose prosperity is otherwise based on every known principle of private exploitation. In the following we give some short examples to illustrate how business and open source work hand in hand, i.e. to unpack the apparent contradiction of making money from something that is made available for free.

The Mozilla Foundation – best known for its web browser Firefox – receives a good deal of its income from Google Inc., as Google Inc. pays so that the browser’s default search engine is Google. Apple’s operating system OS X is built upon an open-source foundation: Darwin. Apple now and then even collaborates in open-source projects using the results of this collaboration to sell hardware, software packages, films and music – lately rather successfully we hear. Furthermore, according to a study only 7.7% of the development of the kernel of the Linux operating system was explicitly non-paid volunteer work.²¹ Red Hat Linux, IBM and Novell are the biggest companies directing their employees to collaborate on this operating system, each one of them a global player on the international IT-market. They co-develop Linux in order to do profitable business with it. For example, they sell applications that run on Linux or provide support contracts to companies: you buy our product, we make sure everything runs smoothly. Companies pay for this service even though it would be possible to compile the result by means of open-source projects themselves – to save the hassle. Google distributes its operating system Android and its web browser under an open-source licence, especially so that users of smart-phones use Google’s products by which Google directly or indirectly makes money by means of advertising. Many companies contribute to developing the GCC-Compiler because it is a central piece of infrastructure for every software company.²² Co-development is cheaper than to independently create alternatives. Meanwhile even Microsoft published some products under open-source licences.

Modern politicians concerned with the economic success of their respective nation-states have understood the power of open source – by all means, they promote and encourage the blossoming and expansion of this infrastructure which is available to all. Firstly, this is to strengthen the economy of their nation-state, secondly, it simply is cheaper for their own administrative bodies to use open-source products. By the way, long before the C64²³, bourgeois states provided fundamental research and knowledge for the benefit of the national economic growth by means of its university system. It is hence fitting that the two most popular open-source licences (GPL and BSD) were developed at American top-tier universities (MIT and Berkeley).

The bourgeois state also realised that its patent law not only enables the private exploitation of innovations but also serves as a barrier – and in this regard it does appreciate the worries of open-source/free-software activists. For if existing innovations cannot be used for the development of new ones that means bad prospects for economic growth. So the bourgeois state implemented a patent law that grants patents for a certain period of time only. Regarding the exploitation and perpetuation of technology it provides a mediating form for the competing interests of individual capitalists – in the interest of total social capital. On the one hand, individual capitalists want to massively exploit their patented inventions by excluding every non-payer from the use of those patents. On the other hand, they want to use others’ patents as basis and means for their own success.

Within the cultural sector, where CC-licences are widely used, things are the same. Incidentally, this also applies to those that choose a non-commercial CC-licence for their products which allows the use on a non-commercial basis only and serves the purpose to exclude others from monetarily profiting from ones own output. This right is reserved to the person uploading a holiday snapshot or producing a music track. The whole concept has nothing to do with the critique of a society that is based on the principles of reciprocal exclusion from useful things and in which every individual necessarily relies on her own property or labour-power. There is no critique of the social conditions in which we live to be found in insisting on the right of the creator – this is the owner’s competitive position vis-a-vis the competition.

notes

In our presentation we explore how technologies coshape our lifeworld by providing (or not) easy accessibility to personal information. Because we have more questions than answers we submitted a theoretical background text to the reader. The text is by Don Ihde, the founding father of postphenomenology; chapter 3 from his “Existential technics”from 1983. Albeit focused on somewhat ‘aged’ technologies, his line of thought shows a method to contemplate the effect that technologies can have on our perception of the world.