Author: Julie Cohen


Hacker Romanticism

I’d like to pick up on a theme that has emerged in some of the other symposium posts, which is that of the romantic hacker: someone who not only enacts liberal commitments within a particular context but also comes, through that process, to personify liberal individualism in its purest form. Which leads, in due course, to speculation on the movement as a template for reinvigorating liberal citizenship, legal education, and so on.

Here some realism about romanticism seems in order. One could also say that clever tax shelters represent successful hacks of the tax code, and arcane financial derivatives represent successful hacks of the global financial regulatory system, and so on. There are, of course, important differences in the ways that we would assess the results, and that tends to suggest that what is most valuable about the F/OSS movement is not hacking in the abstract, but rather hacking deployed in the service of particular goals and subjected (albeit internally) to the normative and ethical constraints that arise from the situated practices of particular communities. What differentiates the F/OSS movement from the corporate tax bar or the world of high-end financial trading, in other words, are factors that are much more specific than a commitment to “coding freedom.” And, as Nicklas suggests, the comparison to other accounts of freedom is a complicated one.

This is not, for the most part, a criticism that I would level at Biella’s extraordinary book, which takes a refreshingly clear-eyed view of the F/OSS community’s beliefs, behaviors, and quirks. (The title is perhaps a bit misleading on that score.) Instead, it’s more a reminder to the rest of us to be careful as we read it. At minimum, before concluding that the F/OSS model can be ported straightforwardly to other contexts, we might ask the question Biella herself poses in her epilogue: what support structures does the liberal society require?


Short Summary and Some Questions

Orin Kerr’s comment on Deven’s post asked for a short summary. Here’s a one-paragraph abstract to get you started. The book is available at my website in a Creative Commons version, so if the abstract looks interesting you may want to skim the first chapter to get a better sense of the argument and the structure of the book.

The abstract:

Configuring the Networked Self explores the relationships between copyright, creativity, and culture, between surveillance, privacy, and subjectivity, and between network architecture and social ordering, and through those explorations develops a unified framework for conceptualizing the social and cultural effects of legal and technical regimes that govern information access and use. The book asks the sorts of questions with which law traditionally has concerned itself (what regime of information rights is just, and why), but it emphasizes a set of considerations that legal thinking about those issues has tended to marginalize. It argues that legal scholarship on the networked information society has gone astray by positing simplistic models of individual behavior derived from the commitments of liberal theory, rather than from reality. A wise regime of information law and policy should focus, instead, on the ordinary rhythms and routines of everyday practice. In particular, it should pay special attention to the connections between everyday practice and play and to the ways in which culture and subjectivity emerge from the interactions between the ordinary and the unexpected. Finally, the book identifies a set of reform principles for information law and policy that moves beyond “access to knowledge” to include two additional principles. A just regime of information law and policy should guarantee an adequate level of operational transparency about the ways that networked information processes and devices mediate access to information and services. In addition it should promote regulatory and technical architectures that are characterized by semantic discontinuity, in order to create and preserve spaces within which the play of everyday practice can move.

The questions:

1) Do folks find the theoretical framework (mediated perception + everyday practice + play) useful? Useful to an extent but needing more … what?

2) Ditto for the reform principles (A2K + operational transparency + semantic discontinuity). I’m particularly interested in reactions to the last one, which likely heads in a counterintuitive direction as far as technologists are concerned. At some point it struck me that part of the point of the book was to call out and name that attribute of the old analog world, to force a conversation about whether and how much we ought to prize it.

Thanks to all for your willingness to participate!