[Commons-Law] Cultural production and Open Content licenses

[Keith Hart]

Lawrence,

Congratulations on having produced this article which is certainly the 
most comprehensive and challenging contibution to this topic that I have 
encountered. I also find it easier to respond to your concluding 
sections in the context of the whole argument than when you circulated 
them separately on this list.

I was particularly impressed with your use of th eexample of dance to 
deconstruct the limitations not only of copyright, but of open licences 
that are too closely tied to software practices. i was reminded of 
Marx's argument in the introduction to Grundrisse that distribution is 
secondary to the forms of production and use: you can't steal from a 
nation of bankers in th eway you can from a nation of shepherds.

I will indicate briefly here some of the many ways I was stimulated by 
this piece, touching on reciprocity, authorship, community or 'public' 
and the American empire, ideas that your analysis links up both 
explicitly an dimplicitly.

Mauss presents the gift and the contract as two instances of a human 
universal, 'reciprocity'. He asks how we make society where it did not 
exist before and concludes that we do so by giving in expectation of a 
return. Contract divests itself of much of the spiritual and social 
baggage of the gift by making the return instantaneous. Delay in 
returning the gift likewise generates the potential for domination and 
inequality. Modern market institutions combine element of this contrast. 
He wanted to show that we all know the 'grammar' (in your terms) of 
reciprocity in that paying for ourselves makes us more independent than 
if we accept a gift. But he also presented the gift as an earlier form 
from which contracts evolved.

You link Locke's state of nature to the 'gift economies' of North 
America and the Pacific that provided him and Mauss with ethnographic 
examples. But the latter are all societies based on property, often in a 
highly individualised and competitive form. A case can be made for 
suggesting that reciprocity was an invention of agricultural societies 
and that hunter-gatherers were and are indifferent to the sort of 
exchange relations they imply. Domestication entailed carving out a 
sphere of protected animals and plants that marked out human settlements 
from the wild surrounding them. This gave rise to the division between 
culture and nature and to religious practices aimed at bridging the gap 
between them. Mauss cites the Roman term, do ut des, I give so that you 
will give, as the logic of sacrifice under these circumstances. But it 
may be that this unnecessarily restricts the models of society open to 
us. Instead of reciprocity, hunter-gatherers usually operate with the 
idea of sharing, a porcess that involves individuals, communities and 
their environments. The latter are often seen as banks making their 
resources available to human inhabitants in a collaborative way. This 
model would serve you quite well, I think.

Although it would take too long to establish here, I fear that you may 
be throwing the baby out with the bathwater when you persist if 
referring to the 'romantic genius of the author' as an invented figure 
of capitalist aggression. I have long contemplated a riposte to Barthes 
death of the author called 'Death of the audience'. what is strilking 
about the publics invoked by early modern modern authorship is their 
singularity. If Scottish publishers threatened a few London monopolists 
200 years ago, there is very little left in Britain today to disturb the 
introverted clique of press, TV, publishers and politicians that 
dominates the dissemination of information there. Yet you and I also 
experience writing for a public that is unknowable. How often have I 
tried to envisage the audience for what I write and failed? Not only 
that. When reading is unpredictably free, I have no way of anticiopating 
what sort of response, if any, I will get for what I write. So I have to 
look for the public, for society , in myself and write to reconcile the 
many fragments of social experience that bear on my topic in the hope 
that this will somehow act as a bridge to unknown readers.

You rinvocation of Kaviraj and the narrative contract of early 
nationalism bears directly on this reflection, as does your notion of 
'fuzzy communities'. I think all of us expereince community in this 
fuzzy way nowadays. I have found a small measure of comfort in the 
etymology of 'society'. When the Romans were still an undisciplined 
rabble known as Latins, they invented the word societas to describe an 
emergent form of association between them. It comes from the o-grade 
form of the root sekw- (sokw-yo) which means to follow, as in second, 
sequel and, more obscurely, sign. For them society was an agreement for 
a network to help each other out if any of them was attacked, in which 
event they would follow whoever was the initial target. leadership was 
seen as being inevitable, but also contingent. This contrasts starkly 
with the medieval French, societe, in which society is conceived of as 
fixed and bounded with a central point, the prototype of the modern 
nation-state.

I agree completely with your critique of the US-centrism of Stallman, 
Lessig etc, but I would be less inclined to link this to 18th century 
liberalism (depite the manifest destiny, genocide etc of the era) than 
to the idea of the USA as a world entire unto itself. This is the very 
stuff of imperialism of course, the drive to impose American property 
laws on the rest of the world. But, just as the empire cannot 
contemplate what it is not, so too both copyright protagonists and FLOSS 
opponents are drawn together into a self-contained universe whose shared 
assumtions are greater than any differences. To my mind, it is obvious, 
as I have indicated elsewhere, that Asia poses an economic threat to US` 
dominance that must expose th ecultural fragility of this blinkered 
outlook. But I wonder, from your expereince, whether you think that 
Asian intellectuals are any less capitve to the cultural model of the 
nation-state. from my scattered observations it would seem that could be 
even more so restricted in their horizons. I would like to be proven 
wrong on this point.

Keith