[Commons-Law] Linux's Hit Men

[Monica Narula]

In this debate, i am pulling an excerpt from a mail by Martin Hardie, 
where he raises questions about re-imagining law. No, i dont think he 
pushes the (proverbial, paul keating) envelope, but its worth a read 
in any case

best
M

From: Martin Hardie <auskadi at tvcabo.co.mz>
To: nettime-l at bbs.thing.net
Subject: Re: <nettime> Linux strikes back III
Sender: nettime-l-request at bbs.thing.net

<snip>

What I think I am getting at is that the OS FSF FLOSS machine is said to
herald a new form of organising, a new form of producing, beyond markets
and the firm (to borrow from Benkler). It is to use the phrase in
essence "rhizomatic". Although as we see may have some so labelled
benevolent dicators symbolised by penguins and such, we have no centre,
no directive telling us what to do, what to make. You have a problem to
solve, a need to cater for and that problem may be solved by you or
someone else creating the tool or a version, prottype which caters for
that need. I hope I am doing the system justice in this brief
description and although people may pick at some of it the gist is taken
as given or fair enough. We have in effect the P2P form of organisation
at its height.

Now, fine, we or some of us like and even adopt these forms of
organisation, these active forces of life and creation. Some even herald
them as the coming of a new society, the final dawn of communism or the
second coming of christ. We see this way of doing things as being beyond
the old corporate/proprietary ways, open, free, etc etc this is the
jargon. We have moved beyond property in terms of the product, we have
moved beyond representation in terms of the organisation ... (am I
confused or is anyone with me?) ..

OK but when we come to talking about "the law" or methods of maintaining
the integrity of the project most people seem to want to rely on the
suits and their methods - it is we can be P2P but the law can't be
mentality; we can be beyond property - but when we want to maintain our
project we must fall back on property - that is old forms of positive
rigid law.

Why can't fsfer's think of law and its organisation in ways other than
proprietary/closed systems? Why do people who profess to be at the
cutting edge, pushing Paul Keating's proverbial envelope, feel the need
to hide behind old ways of thinking about law?
Why when someone proposes to move to think about law in another way its
said it can't work ... Ian's comments remind me, or echo those who say
OS FSF P2P can't work as noone is in control, there is no body to
represent the machine:.

I am not saying deny enforcement - law can be imagined, practiced and
made that is beyond the old forms that came with the old way of doing
things. I am not saying the FSF can't do its job but orgainsations
cannot profess to represent everyone all the time. If I as a Linux user
want to sue SCO for threatening my rights why can't I. I have a "cause
of action". If the FSF wants to do it as well why can't they - and if
they don't take actio but continue to claim to represent me or Morlock,
or if the proprietary owner of the OS thing I want to use without threat
refuses to take appropriate action (hey linus move your arse and clobber
SCO for me) - I might sue them or threaten to.

One thing I learnt when i was a lawyer working on copyright cases was that
the more threats made against the respective bad guy, the more 
headaches to deal with the quicker they
come to their senses.

But dear Ian - you sound like someone who says OS can't work .... but I
don't think  thats what you meant. All I just wanted to suggest  is that
we think about law like we think about the other things we talk about here
and not get stuck in the old ways.

The GPL is a start - it has radically changed the game; but we have to
continue to move forward.

Am I clearer now ... I can go on!

Martin

-- 
Monica Narula
Sarai:The New Media Initiative
29 Rajpur Road, Delhi 110 054
www.sarai.net