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[ox-en] this is maybe my response

[Please note then whenever you see lines like the following one and at
the end this means that the original post were invalid because of
attachments. It is reformatted and resent by hand. -- SMn]

[1  <text/plain; ISO-8859-1 (8bit)>]
Dear Oxeners
It seems we are to be soon moderated ....
IT also seems I am the reason why!!!
I flatter myself o maybe Stefan does.
I wrote this paper after the various concerns I raised on oxen regarding 
floss ... last year and I was hoping to be able to talk about this in 
person at the conference and maybe move on from it in a positive 
fashion. Unfortunately one vote, ie stefan mertens means I wont go to 
the conference. Instead it is possible I will give the paper in the UK 
in May instead.
I have posted the link here before but it may have got buried in the 
noise or maybe has just been ignored.
I actually get the feeling some of the caricatures of me as being an 
oxen outcast are a result of this sort of thinking ...  what i have 
tried to clarify and express here.
Anyway I am just gonna hang around to see what happens more than 
anything else.
So take care
who nows how this mess will resolve itself, but for myself a project 
bounded by a theory or ideology isnt gonna help us much and I for one 
really can't see what we can achieve with that sort of intellectual 
fascism ....
such is life
It was good to meet a whole lot of you here and I am sure we shall 
continue to talk amongst ourselves
you see i get the distinct feeling from reading Stefan that I will be 
moderated away ... I am off his topic. I wish though Stefan and others 
could do something useful like critique this paper.
in future my most stable email is the z one or hardie
physically try Artekale 30, 2A, Durango, Bizkaia, Euskal Herria, Spain.
Come and visit - that includes you Mako.....



* "Floss and the Crisis: Foreigner in a Free Land?" 1

Martin Hardie

Published in the Sarai Reader 4 <>


"... capitalism (or any other name that one wants to give to the process 
that today dominates world history) was not only directed toward the 
expropriation of productive activity, but also principally toward the 
alienation of language itself, of the very linguistic and communicative 
nature of humans, of that logos which one of Hericlitus's fragments 
identified as the Common. The extreme form of the expropriation of the 
Common is the spectacle, that is the politics we live in. But this also 
means that in the spectacle our linguistic nature comes back to us 
inverted. This is why (precisely because what is being expropriated is 
the very possibility of the common good) the violence of the spectacle 
is so destructive; but for the same reason the spectacle retains 
something like a positive possibility that can be used against it." 2

There is a lot written about the world of Linux, Free, Libre or Open 
Source Software3 production. Most of it is gushingly positive and 
written in a manner that only seeks to promote the benefits of this type 
of software over the apparently dominant corporate or proprietary forms. 
Supportive reportage generally posits Floss (Free/Libre Open Source 
Software) as being more advantageous in terms of personal or community 
autonomy than are the dominant corporate/proprietary alternatives. The 
basic argument is based upon the premise that Floss grants to the 
technologically savvy user/producer greater control over the machine to 
which their production is tied. As the Seattle Times reported on the eve 
of the 2003 World Summit on Information Society (WSIS): "Particularly in 
the developing world, Linux and other free and open-source software have 
economic and political attractions ... Politically, a shift to 
open-source can be a digital declaration of independence in an era when 
the United States and its software industry are not universally 
trusted".4 It should go without saying that this political attraction is 
not confined to the 'developing world'.

At first glance there is not a lot of 'essays in self criticism' 
surrounding Floss and not much seems to be written that, even by 
implication, appears relevant to these times of perpetual crisis that 
this issue of the Sarai Reader is devoted to. However, I think it can be 
reasonably argued that Floss, its methods of production, as a form of 
labour and its location within the realm of the global politic is firmly 
a part and parcel of the world of crisis.5 Floss is in many ways the 
archetypal crisis media, and its potential as an alternative thus rests 
with decisions made by those that live and act within these crisis 
times. Floss inhabits a space that is signified by the tendency of 
global corporate sovereignty, and here I will seek to outline an 
argument that Floss currently resides within a particularly American 
vision of freedom which seems to be spreading virus-like in its quest to 
smooth the space of the globe. With this vision and this tendency, fear 
and control are sought to be generated with the invoking of images of 
the enemies of freedom often related to the 'war on terror'. But these 
images form only some of the gloss of the spectacle necessitated by this 
overarching tendency toward global corporate or imperial sovereignty.

In some ways the label, Floss, that is the term or description itself, 
appears in fact to be situated at the heart of this tendency. The 
American flavour to the rhetoric embodied in the name, and in the 
language that abounds around it, causes me to have concerns as to 
whether the Floss machine in its present incarnation can live up to the 
expectations, and whether it is a real and viable alternative. That is, 
whether its potential can survive the increasingly imperial form of 
global sovereignty within which we live? In saying this it is probably 
necessary to point out that the enquiry I seek to commence is not 
'against' Floss but one that seeks to contribute to the continuation of 
the political benefits of the machine. In this regard, borrowing from 
Foucault, I think it is fair to say that "... there are no machines of 
freedom, by definition ... the exercise of freedom can only function 
when there is a certain convergence; in the case of divergence or 
distortion, it immediately becomes the opposite of that which had been 
intended..."6 Or to paraphrase what he said in another place, my point 
is not that Floss is either bad or good, in itself, but that "everything 
is dangerous ... (and if) everything is dangerous, then we always have 
something to do".7

Therefore, what I would like to try and do here is to raise the 
question, open it for comment as it were, about the rhetoric, the 
language, the discourse that envelopes the Floss machine, and look a 
little at its particular place and heritage in order to try and see if 
this factor in any way gives cause for concern, and to reconsider the 
current, particularly uncritical, approach. My interest here lies in 
trying to come to grips with a snippet of the rhetoric of this vision of 
Floss in order to try and understand what sort of vision of "free" it is 
tied to. I want to raise the questions as to whether the "Free as in 
Freedom" of Floss speak is bound to a certain vision of "Free as in 
America", and in doing so raise the possibility of considering other 
ways with which we may be able to re-imagine Floss and its future, and 
thus possibly continue to pursue its emancipatory potential.

I intend to start exploring here the intersections of the rhetoric of 
"Free as in Freedom", the law of copyright, and what I have dubbed, 
'Lessig's transcendental foundationalism' within the global "kingdom of 
money". Here I can only seek to lay out the bare bones of an argument 
suggesting that the intersection of these various lines do not coincide 
with a drift toward 'free as in speech', but with a drift toward a 
machine that proposes property itself as the basis of liberty and 
freedom. It appears to me that to pose speech against property in the 
forums of capital, as the rhetoric of Floss seeks to do, within the 
context of the rhetoric of American freedom, is to concede the struggle 
to a form of American constituted power, privileged by capital within 
the realms of imperial sovereignty. It is more than likely, given the 
intersections I seek to describe, that it will be property that comes 
out on top. Even if that means perpetual crisis, and continual 
management and control of the hackers, pirates, terrorists and other 
barbarians who seek to escape the bounds of freedom.8

At this point a brief digression is probably in order to position the 
conceptions of freedom that I will discuss. I have let forth here with a 
phrase "Free as in America" - I am attempting to take the piss out of 
Stallman's "Free as in Freedom" - probably without luck; and I am sure 
my characterisation of this sort of logic as being "Free as in America" 
will rile some and be held against me and what I am trying to grapple 
with. I could be open to attack that I am treating America and its 
visions of free as some totalised whole. But what I am alluding to here 
is that 'constituted' freedom as signified by aspects of American law, 
politics, culture and power. To help set the bounds of this particular 
'freedom in the American sense', it might be useful to first refer to 
Larry Lessig, one of the chief proponents of American free speak in 
relation to things digital.

Speaking of the struggle for control of the internet, a topic interwoven 
with the life of Floss, Lessig states in his second tome, The Future of 
Ideas, that this struggle "will determine what the 'free' means in our 
self congratulatory claim that we are now, and will always be, a 'free 
society'. ... This is a struggle about an ideal". He continues to deny 
that this meaning of free is either a moral or a political question, but 
"instead best described as a constitutional question: it is about the 
fundamental values that define this society and whether we will allow 
those values to change. Are we, in the digital age, to be a free 
society? And what precisely would that idea mean?"9 Lessig may be just 
carving the meat off the bone in order to dissect what he feels is the 
core issue, but it is easy to get the feeling that to him, either we are 
all Americans now, or that decisions about the internet are best made 
within the U.S. Constitutional context. For me here lays the heart of 
Lessig's analysis, the line that runs through his two books: he proceeds 
as if the struggle regarding the future of the internet, its control, is 
a purely Constitutional matter, and, at that, an American Constitutional 
matter. For all that Lessig gives us, this is the thing that gets stuck 
in my throat when I read him: his abiding faith in America, its 
constitution and its 'founders'. For Lessig, 'the' constitution is an 
architecture "that structures and constrains social and legal power, to 
the end of protecting fundamental values - principles and ideals that 
reach beyond the compromises of ordinary politics."10

We can try and situate Lessig's constitution and its freedom in a wider 
context by looking at Toni Negri's work, Insurgencies.11 Here Negri 
takes us on a journey that traverses America, Machiavelli, Spinoza, 
Harrington, Rouseau, Marx and beyond. In particular, he examines the 
"freedom of the frontier" in a way that obviously was taken up later in 
his writing with Michael Hardt in Empire.12 Negri characterises the 
American revolution as an example of constituent power, "an effective, 
social, political alternative"13 to the transcendent constituted power 
of sovereignty or constitutionalism. For Negri, constituent power is 
founded in the multitude, "an always open form of democratic 
government".14 Negri chronicles how American constituent power, founded 
upon the frontier, in the end was submitted to the constitution: "The 
homo politicus of the revolution must submit to the political machine of 
the constitution, rather than in the free space of the frontier, the 
individual is constrained to that of the constitution. ... [I]t is 
absorbed, appropriated by the constitution, transformed into an element 
of the constitutional machine. It becomes constitutional machinery. What 
constituent power undergoes here is an actual change of paradigm ... 
shifting it away from its meaning as active participation in the 
government to a negative meaning - that of an action ...under the aegis 
of the law".15 It "is not conceived as something that founds the 
constitution, but as the fuel of its engine ... no longer an attribute 
of the people ...(it) has a model of political society.16 The 
constitution becomes an organism with it own life with the people 
reduced to a formal element of government "a modality of organised 
power".17 And at the heart of this organised power, "the constitution is 
elevated to the kingdom of monetary circulation", money replaces the 
frontier, as Negri describes the "organism by which Hamilton is inspired 
is that of the 'powerful abstraction' of money, of its circulation, and 
of its pulse ... he ... reorganises power around financial capital".18 
Thus when I speak of 'Free as in America', I refer to this America 
constituted on power and confined by "the transcendental theory of the 
foundation", and with it the "always theological foundations of 
capital's economy".19

With this as background, let's continue. In its pure state, the Floss 
machine may bear some of the hallmarks of a form of communal production, 
as described for example by Marx in The Grundrisse.20 Or because of its 
apparent 'rejection' of the propertising aspects of Copyright Law, Floss 
appears to be, or is professed to be, beyond (or even prior to) 
property, and thus embodying a tendency that is outside the realms 
inhabited by commodities and even in the longer term, capital. However, 
although differences exist within the high priests of Floss, their 
mantras are well expressed by Stallman's position that Floss is not: 
"Free as in Beer"21 - that is as in price - and hence it is Libre and 
not Gratis; but "Free as in Speech". The reference to "as in Speech" 
links us back again to 'The Constitution' and in particular to its First 
Amendment. And thus it is here, with this intersection of "free" with 
"free speech" and not with "free beer" that we encounter the beginnings 
of the production or piloting of the rhetoric of "free as in freedom". 
With this intersection, the production of the logic and rhetoric of 
Floss are immediately caught within the bounds of American visions (and 
hence Imperial capital's visions) of what it means to be free. Our 
initial point of departure is immediately caught within the bounds of an 
American, a constitutional freedom.22

Two quick points here - within this American vision there is a definite 
binary but complementary vision of what "free" means. It is clearly tied 
to capital and its attendant concepts of innovation. Here, free speech 
is often perceived as founding a marketplace of ideas that in turn 
nurtures private acts of development associated with commodity 
relations. Speech here is the breeding ground of "the kingdom of 
monetary circulation",23 rather than the boundary of the frontier. 
Second, this particularly American vision of freedom is not what many of 
us, who find ourselves at the edges of or within contemporary capital, 
envisage when we think about "free", and/or even the benefits of Floss. 
But as the smooth space of Empire is widened, through the work of the 
Imperial military, corporate and NGO (non-government organisation) 
machine, we find ourselves more and more within this particularly 
American vision of "free as in freedom". Thus we succumb to this virus 
of American freedom, whether we like it, believe it, think it, intend 
it, want it, or not. Without a doubt, Floss plays an integral role in 
the production of knowledge in the contemporary world, especially where 
linked by the coverage of the internet. In this way Floss forms a part 
of the new forms of "immaterial labour"24 made possible by 
communications technology. In fact, to a large degree, Floss actually 
makes a large part of communications technology possible. It is 
indisputable today that many of the links and portals within the 
internet are themselves products of Floss. And, as with the internet, it 
is arguable that in its original peer-to-peer form Floss constitutes a 
vegetal, rhizomatic model of production in which concepts or products 
are never stable but in a state of constant flux, as they are modified 
or transformed by producers and users in their communal passage from one 
problem to the next. If these characterisations are accurate, Floss may 
then contain the possibility of being a "system in perpetual 
hetrogeniety", or even crisis.25 Therefore, in many ways it could be 
said that Floss is against the arborescent, the corporate, the 
proprietary or the cathedral image which has been, up until recent 
times, the prevailing model of production within capital. Nevertheless, 
it has been convincingly argued (as far back as the Grundrisse) that 
capital itself is a system of this type, continually coming up against 
and seeking to overcome its own limit.26 And it is precisely because 
capital is a system that continually requires new forms and methods for 
its own survival, and because of this hunger for new sustenance, that 
more than the mere repetition of the benefits of Floss and its current 
rhetoric and logic is required in order to resist such consumption - an 
over-coding that tends toward control and a functioning consistent with 
its ever present "cash nexus"27. While Floss does have within it an 
enormous emancipatory potential that may be realised by creating 
"continuous connections and transversal tie-ins",28 this threat of 
over-coding by capital, the threat of blockage of its lines of flight is 
continuous. And as Floss, like capital, is in a constant state of 
crisis, there is always work to be done to realise its emancipatory 
potential. There is little to ensure that capital will not devour and 
regurgitate Floss anew in its own likeness. It will come "back to us 
inverted" or at least not bearing the likeness with which it was 
originally conceived. In the light of this, the intersections I seek to 
describe here, through the production of meanings, tend to produce 
Floss, pilot it, to take on the likeness required by capital.

I will now try and sketch some factors in order to flesh out the ways 
these intersections may tend to confine Floss within a particular form 
of logic and piloting. By considering some statements related, in one 
way or another, to the position of Floss within law, economy and 
discourse, it is possible to understand how its potential to go beyond 
the acceptable bounds of Imperial freedom is being watched, monitored, 
controlled, and when necessary, castigated. At present, little attention 
is being paid to these movements; there is very little critical analysis 
of this side of the picture. There is a tidal wave of promotion 
surrounding Floss's benefits, self-congratulatory back patting and 
repetition of the mantras such as "information just wants to be free". 
But critical analysis of this rhetoric is too often avoided, and when 
raised, dismissed as coming from a non-believer or from someone 
'against'. This state of affairs is open to attack on many a level.

The attacks upon the Floss machine's potential lines of flight are being 
made and becoming clearer by the day as the rhetoric of the other, 
complementary side of the American free-speak machine tends to include 
Floss and its various coordinates within its sights. A notable 
occurrence was when WIPO decided to can its planned meeting to discuss 
Floss. The Washington Post29 reported that: "It is understood that 
lobbyists ... pressed the US State Department and the US Patent and 
Trademark Office to have the meeting called off. ... Lois Boland, 
Director of International Relations for the US Patent and Trademark 
Business says that open-source software is contrary to WIPO's mission to 
promote intellectual property rights. 'To hold a meeting to disclaim or 
waive such rights seems to us to be contrary to the goals of WIPO,' she 
says". In characteristic form, Lessig dismissed her comments as ignorant 
and sought to give her and us all a lesson on what copyright is 
'correctly' all about.30 But the point was that the lobbyists and Boland 
had set the stage for WIPO's withdrawal and opened the path for the 
questioning of the most acceptable role for Floss within the bounds of 
Imperial sovereignty.

At the other end of the spectrum are the direct calls for control. 
Reflect upon the language of SCO's Darl McBride? in his Open letter to 
the Open Source Community.31 McBride? couches his language in familiar 
'you're with us or against us' rhetoric: "No one can tolerate DDoS? 
(Distributed Denial of Service) attacks and other kinds of attacks in 
this Information Age economy that relies so heavily on the Internet. Mr 
Raymond and the entire Open Source community need to aggressively help 
the industry police these types of crimes. If they fail to do so it 
casts a shadow over the entire Open Source movement and raises questions 
about whether Open Source is ready to take a central role in business 
computing. ... Until these illegal attacks are brought under control, 
enterprise customers and mainstream society will become increasingly 
alienated from anyone associated with this type of behaviour". Now it 
might be easy to dismiss the SCO drama as an aberration, as the death 
throes of a failed company, or even to try and disprove that the attacks 
did in fact occur, but the language surrounding their case, their legal 
claims and even McBride?'s Bush-like rhetoric sit well with much of the 
discourse of late.

We are used to this language when it comes to the crimes of file 
sharers, with whose 'pirating' the 'worst excesses' of the p2p culture 
are associated. Not so very long ago, a few kids in Sydney had to face 
the music in Court. Their story, as told in the media, is one of 
castigation and control.32 Law in this case castigated by use of the 
criminal sanction, but at the same time the example serves the tendency 
of Law in its becoming-economic, its tendency toward economy. That is, 
it is becoming-economic in both the sense of the free market and in the 
sense used by Foucault concerning the correct and efficient management 
of individuals.33 Here is an example of Law intervening to discipline 
deviant, un-commercial relations, and in so doing, shows how Law plays 
its part in producing smooth capitalist relations.

With these instances of castigation, whole communities and fields of 
communication and practice are concurrently and implicitly called into 
question. They become suspect. These events occur and with them arrive 
far wider desires for control and restraint, as one of the 
pirates/sharers, Tran, told the press after his conviction: "I strongly 
discourage anyone else from doing this as well". The example of Tran and 
his fellow pirates turned into unwitting agents of control oils the 
economy of law, which in turn oils the economy of economy. In the 
spectacle of the Imperial machine there is a link, no matter how tenuous 
in reality, how rhetorical and attention-grabbing it may seem, between 
cyber-delinquency and that other evil, global terrorism. 
Cyber-delinquency, file sharing, become in the spectacle of Empire, the 
metaphoric equivalent of smoking pot behind the school shed, a simple 
step away from the heroin of Al Qaeda.

Lessig and others were able to dismiss the US Patents Office "outside" 
interference in WIPO's plans as ignorant, but it became a little harder 
after the Organisation decided to contribute to the spectacle itself by 
announcing in the weeks prior to WSIS 2003 that IP theft was in fact a 
form of "terrorism".34 Closer to the homeland, as they call it, 
technology companies are urged to cooperate in the battle against 
cyber-terrorism - or submit to government-imposed security regulations. 
"The enemies of freedom use the same techniques as hackers do", U.S. 
Homeland Security Secretary Tom Ridge said to 350 industry executives 
gathered for the first National Cyber Security Summit in Santa Clara.35 
And then, funny things happen: late in November ICANN's36 name registry 
website was hacked. As reported "... visitors to the .name registry home 
page (found) a mysterious black screen upon visiting the site ... The 
bottom of the black screen ... included a rotating image displaying the 
following text in sequence: "It's good. Open Source is 
Good. Free is Good. Slackware Linux".37 And very soon after, SCO's own 
website was repeatedly, or allegedly, attacked. Whatever the facts may 
be is probably not the point.38 The point is the contribution to the 
spectacle, as the file sharer, the hacker, the cyber-delinquent, the 
pirate and the terrorist, become the scapegoats of the information 
society "charged with everything ... bad ... everything that resist(s) 
the signifying signs" of American free speak, the incarnation of "a line 
of flight the signifying regime cannot tolerate ...".39 The tendency of 
this rhetoric appears to want to keep deviant technology, and by 
implication, Floss within the bounds of American freedom, to ensure it 
does not escape capture, that it is functional and controlled within the 
global machine.

This tendency toward the limiting of the frontier of Floss intersects 
dangerously with the rhetoric of "free as in freedom" with which I 
opened. How does this intersection manifest itself; that is, what do we 
encounter with this convergence of the Ridge/McBride/WIPO allusions to 
terror with the freedoms of Stallman and Lessig? Is the consequence of 
the intersection of their freedoms incompatible, or are they just two 
complementary sides of the same American freedom bound together by the 
organised power of the Constitution? I am not suggesting that Lessig or 
Stallman hold views of the nature of Ridge, but that their language and 
the meanings that it produces tend to permit only an American freedom. 
That is to say, Lessig's foundationalism intersects with Stallman's 
freedoms so as to bind them to a constituted freedom within the context 
of global capital. The question to ask is - what is being produced? Is 
it a Floss that is being piloted within the acceptable outer boundaries 
of freedom, centred as they are upon the axiom of a marketplace of ideas 
that nurtures private acts of development?

One way to come to grips with this tendency is by considering some of 
the legal discourse concerning these issues. The current SCO related 
litigation40 and the Eldred case41 provide us with one way in which to 
commence such an enquiry. In looking at these instances, it is useful to 
step back a little and commence by providing a brief reconnoitre of the 
American vision of liberty enunciated within the US Constitutional 
context. Liberty and hence freedom in America has a particular Lockean 
genealogy or derivation. For Locke, society was based on property and 
property embraced a man's right in his own person to use his labour as 
he saw fit. At the time of the much vaunted 'founders' of the U.S. 
Constitution, people recognised "the exclusive use of some tangible 
property as essential to survival and the right to such as essential to 
autonomy"; that vision embraced the notion that "to the extent that a 
person is dependent on another for the necessities of life, that person 
is not autonomous".42 It was one of the "founders", Alexander Hamilton 
who wrote that "a power over a man's subsistence amounts to a power over 
his will".43 For the "generation of 1787-91, property was a natural 
right ... that basic right included a cognate right to contract with 
other property holders..."44

By the latter part of the 19th century, and as the movement from an 
agrarian to industrial economy occurred, the prevailing wisdom was that 
uncalled for interference with property rights, and the new industrial 
market where "...competition was a law of nature" risked paying the "... 
the price of mitigating the economic struggle" which in the end may 
signal "... the destruction of liberty...".45 Property was thus "the 
fundamental constitutional value, liberty ... the primary constitutional 
right, and substantive due process ... the instrument for their 
accomplishment..."46 Allgeyer vs. Louisiana47 (46) summed up the Supreme 
Court's jurisprudence at the time: "The liberty mentioned in (the 14th) 
amendment means not only the right of the citizen to be free from the 
mere physical restraint of his person ... but the term is deemed to 
embrace the right of the citizen to be free in the enjoyment of all his 
faculties; ... and for that purpose to enter into all contracts which 
maybe proper, necessary and essential to his carrying out to a 
successful conclusion the purposes above mentioned". It "was the last 
right, that of contract, which the Court came to consider paramount". Of 
course, the paradigm case of this period and of laissez faire capital 
and substantive due process was that of Lochner vs. New York.48 Lochner 
has been much criticised, but has also been the subject of some writing 
about the new cyber-economists who characterise neo-liberal thinking 
about the information society.49 Whether or not the specifics of Lochner 
are what lawyers call "good authority" may be a moot point. What is not 
moot, however, is that the liberal vision that found its voice in 
Allgeyer and Lochner is alive and well in the current neo-liberal US 
Supreme Court.

How does this short history intersect with the SCO cases and with the 
rhetoric I have previously set out? As I have briefly tried to state, 
much of the Floss rhetoric of 'freedom' is couched in terms of being the 
'correct' argument or position because of its alleged conformity with 
the vision of the 'founders'. I don't want to buy into an argument as to 
whether SCO will be or could be successful, that is not my point here.50 
It is the role that SCO plays in the wider tendency of piloting that I 
am describing which is of interest to me for the present. This is where 
the real game of the economy of law in the contemporary world is played 
out. Becoming-economic entails law acting as much through its signals of 
control, 'fundamental values' or truths and power, as much as it does by 
the positive legal word.

Thus it is important to try and locate SCO's claims within the broad 
vision and genealogy of American freedom as described above. Situating 
it in this way, and considering its intersections with the rhetoric 
described, suggests that what is at stake may not be whether SCO 
survives but, in the end and at its core, the very meaning of (American) 
liberty itself. It goes without saying (or it should) that American 
meanings are of course increasingly important for us all these days. 
Globally, very few of us are immune to the virus of American freedom - 
even more so for those outside of the Floss machine; just ask those that 
now camp out, free, in the rubble of Afghanistan or Iraq. But within the 
Floss machine and amongst its high priests - its academics, lawyers and 
developers - to even suggest that SCO's claims should be seriously 
considered as relevant in any way is dismissed. To Floss-ers their legal 
arguments seem plain ludicrous. Their claims are unfathomable merely 
because Floss-ers are bound to hold dear their particular vision of 
'free' as being the correct and only logical one. Thus SCO's claims are 
given scant attention and are simply labelled "nonsense"51 by those 
within, or who hold their work as being the ultimate embodiment of, the 
dreams of the 'founding fathers'. In this way, the rhetoric of Floss in 
itself suffices to exemplify this strain of faith in law and liberty. 
However, lets go back to the SCO vision of copyright and why they say it 
is the 'correct' one, why Darl McBride? says it is the one consistent 
with the vision of the 'founders', and read it in the light of the small 
piece of constitutional discourse set out above.

McBride?'s version is summarised in his analysis of the majority U.S. 
Supreme Court opinion in Eldred. McBride? argues that the "Court's 
analysis of the constitutional foundation of the Copyright Act applies 
directly to the debate between SCO and FSF/Red Hat regarding 
intellectual property protection for software". SCO's position is that 
the authority of Congress under the U.S. Constitution to "promote the 
Progress of Science and the useful arts" inherently includes a profit 
motive, and that protection for this profit motive includes a 
Constitutional dimension. Put simply, SCO says that the U.S. 
Constitution protects a right to profit as a central element of its 
copyright provisions, and that the "progress of science" is best 
advanced by vigorously protecting the right of authors and inventors to 
earn a profit from their work. On the contrary SCO says "... The Free 
Software Foundation, Red Hat and other GPL advocates take the contrary 
position. The FSF and Red Hat believe that the progress of science is 
best advanced by eliminating the profit motive from software development 
and insuring free, unrestricted public access to software innovations. 
The Free Software Foundation was established for this purpose. The GPL 
implements this purpose. Red Hat speaks for a large community of 
software developers dedicated to this purpose. However, the U.S. Supreme 
Court has dramatically undercut this position with its guidance in 
Eldred in how to define the term 'promote the Progress of Science and 
the useful arts...'"52

Whether McBride?'s characterisations of the GPL and its backers are 
ultimately accurate is again not the point. In the spectacle, things are 
about perception and as I have tried to explore, rhetoric, and of 
course, power. The Floss machine privileges speech over property in its 
quest for innovation. This was the argument that Lessig so passionately 
ran in Eldred. But McBride? is accurate when he says that the Eldred 
court privileges property and contract - profit - over speech as the 
fundamental underpinning of the copyright regime. This is probably best 
enunciated in a footnote to the majority opinion in Eldred where Justice 
Ginsburg wrote: "As we have explained, '[T]he economic philosophy behind 
the [Copyright] [C]lause ... is the conviction that encouragement of 
individual effort by personal gain is the best way to advance public 
welfare through the talents of authors and inventors'. ... Accordingly, 
'copyright law celebrates the profit motive, recognizing that the 
incentive to profit from the exploitation of copyrights will rebound to 
the public benefit by resulting in the proliferation of knowledge... The 
profit motive is the engine that ensures the progress of science'. ... 
Copyright law serves public ends by providing individuals with an 
incentive to pursue private ones."53
This is the vision of freedom, the vision of the 'founders' of the US 
Constitution that holds sway within the bounds of freedom in America 
today. This is the vision of the becoming-economic of law and the 
functionality of the global machine. With this vision it is clear that 
the tendency toward freedom in America, "free as in freedom", is the 
tendency toward that which favours property, contract and profit. Eldred 
specifically privileged free as in profit over free as in speech. 
Keeping all this in mind, that is, the intersections of rhetoric and law 
that I have described, is there not some cause for concern? Does not 
using property to go beyond property, or using constitutional notions of 
freedom (whilst possibly a pragmatic and tactical decision in the 
circumstances) carry with it the risk of the most emancipatory 
possibilities of the project coming up against some sort of blockage, 
some sort of institutional opposition to its intended line of flight? 
Especially when all signs suggest that the tendency of global corporate 
sovereignty is toward the (en)closing of more and new forms of property 
to feed the engine of global information capital? If the global tendency 
of law becoming-economic is to act as a facilitator in the enclosing of 
open spaces, to act with the insurance of capital's efficiency as its 
core raison d'etre, as one of its axioms, why, or better how, can 
Floss-ers remain bound to their position which is bolstered (or 
boostered) by blind faith in the objectivity and reason of law, and 
trust that law will act to defend the vision of the 'founders', or that 
which they see as the 'correct' principles upon which their rhetoric 
seeks to justify their vision?

With all of this in mind - the intersections of Lessig's transcendental 
foundationalism, the liberal and neo-liberal visions of contract, 
property and profit that underpin both the concepts of liberty in the 
U.S. Constitution and that of innovation and progress in copyright; can 
we not conceive that the rhetoric of "free as in freedom" of Floss is in 
danger of being piloted in such a manner that it comes back to us 
"inverted"? Is there not the "very possibility of (a) common good" being 
produced by these intersections that is not the one that we originally 
intended, but one that has been expropriated by the necessities of the 
"cash nexus" that reigns within the "kingdom of money"?

I wonder, therefore, if without more than the hollow mantras - of 
invoking the vision of the 'founders' or "free as in freedom" or the 
more banal "information just wants to be free" - if there is any 
defensible position of Floss possible. If we are to try and retain 
"something like a positive possibility" for Floss, we need to move 
beyond what the high priests are repeating and consider an alternative 
or rather alternatives, visions, discourses and logics of Floss that are 
not simply those justifiable by the necessary corollaries of America's 

Floss at its heart is another form of community knowledge production; it 
is a community formed through a language of production that goes beyond 
the discourses and rhetoric I have tried to describe here, and as is the 
case with other forms of community knowledge production, its longevity 
as an alternative to Imperial sovereignty requires more than simple 
repetition of currently accepted dogma. Autonomous production of 
knowledge, and the lives of the multiplicity of locals that inhabit this 
earth will not be ensured by repeating mantras such as "free as in 
freedom". To do so will simply continue us along the merry path of 
totalising one vision of the world and imposing it upon the rest. Should 
we - rather than trying to make all forms of community knowledge 
production conform to this peculiarly American vision of freedom, 
chanting along the way, "information just wants to be free" - not 
recognise that the potential and position of Floss is just one of the 
many manifestations of community knowledge production, a very special 
one indeed, and thus commence our analysis and discourse from there? Is 
not the desire to push all knowledge production into this logic of "free 
as in freedom" within the intersections set out here, simply a corollary 
of the imperial tendency that seeks to allow no space for flight? To 
make us all "Americans" within the new "kingdom of money"?

To borrow some rhetoric myself, information and machines will not set us 
free, but a language and rhetoric which allows those that produce to 
control their machines may. Or, it is not enough to say that the machine 
gives you freedom; you also have to create intellectually mobile 
concepts of freedom to converge with it. But for now it is probably 
enough to say that the quest of some Floss-ers for "universals of 
communication" should indeed tend "to make us shudder".54




1. I wrote this paper while in Mozambique and the Basque Country for 
Sarai based upon some thoughts and doubts I encountered during research 
work I am undertaking into "The Logic, Rhetoric and Law of Open Source 
Software" for my post graduate degree in law at the University of New 
South Wales in Sydney, Australia. I must thank Hans Skott Myhre, Derek 
Merrill, Michael Hardt, Benjamin Murphy and Monica Narula for their 
assistance in trying to formulate my ideas. I must also thank my thesis 
supervisor Kathy Bowrey for her constant assistance, criticism and her 
caring vegemite parcels which got me through this process, and no doubt 
will continue to get me through my larger research. The title changed 
with the text and in the end the subtitle "Foreigner in a Free Land" 
seemed to sum up the contradictions and doubts I had and which appear 
inherent in the situation. The subtitle as such also continues my 
tendency to adopt or adapt titles of Ornette Coleman tunes for my recent 
written work. See for example "The Shape of Law to Come", 
<>. I also must apolgise 
to our friends in Latin America who know all to well about colonisation 
and language coming as they docfrom a country (once) known as "América".

2. Giorgio Agamben, The Coming Community, University of Minnesota Press, 
2001, page 80.

3. Free, Libre or Open Source Software which for the sake of ease I will 
call here Floss, rather than Open Source, Free Software or one of the 
other variants. Peer to peer software production may be a more 
appropriate description at another time but the object here is better 
served by using a conjunction of the more common Free, Libre and Open 
Source labels.


5. Here I want to begin dealing with the questions surrounding rhetoric, 
language and law relating to Floss. But another line of enquiry relating 
to Floss as crisis media would indeed be to consider the actual method 
of producing software itself as a form of "crisis". By this I mean the 
continual scratching or itches, the continuing ability to always seek to 
resolve problems afresh, and of always re-proposing the question at the 
limit. In this way Eric Raymond's itch scratching, Deleuzian notions of 
thought and Toni Negri's ideas of constituent power and crisis can be 
used as tools to examine the differences between peer-to-peer software 
production and that of corporate/proprietary software production. This 
question and intersection of the ideas of a gun toting U.S. right wing 
libertarian, a couple of French philosophers and Negri's relevant and 
most contemporary Marxism I must however leave for another day.

6. Foucault, "Space, Knowledge and Power," in Rainbow (ed.) The Foucault 
Reader, Panthenon, 1984, page 247.

7. Foucault, "On The Genealogy of Ethics: An Overview of a Work In 
Progress", in Rainbow (ed.)

8. In my description of these intersections I will adopt as a part of my 
approach Foucault's position outlined in his work, Michel Foucault, The 
Archaeology of Knowledge, Routledge Classics, 2002, pages 39-42. For my 
purposes here, what I take as important from this exposition is that 
when one is within a certain theme of rhetoric or discourse, variants 
may and do occur, but the options open, the possibilities to act within 
a given field are bound by the pre-conditions inherent within the 
overall discourse of the theme.

9. Lawrence Lessig, The Future of Ideas, Vintage, 2002, page 11.

10. Lawrence Lessig, Code and Other Laws of Cyberspace, Basic Books, 
1999, page 5.

11. Antonio Negri, Insurgencies, University of Minnesota Press, 1999.

12. Michael Hardt and Antonio Negri, Empire, Harvard University Press, 
2001.Empire also provides us with the hinge with which to articulate the 
links between the American and Imperial constitutionalism.

13. Antonio Negri, Insurgencies, page 82.

14. Antonio Negri, Insurgencies, page 82.

15. Antonio Negri, Insurgencies, pages 157-8.

16. Antonio Negri, Insurgencies, page 160.

17. Antonio Negri, Insurgencies, page 161.

18. Antonio Negri, Insurgencies, page 164. At page 167: Constituted 
power erases "in the constitution the subjects that were its origin, it 
gives back to society pure and simple constitutional products, 
juridicial individuals ... one thing is forgotten: the creative 
capability of the subjects ... (s)trengh has yielded to power, and 
nothing was left of it in the constitution".

19. Antonio Negri, Insurgencies, page 307 - 308.

20. Karl Marx, The Grundrisse: Foundations of the Critique of Political 
Economy, Penguin, 1973. See for example pages 171-173, and later for 
example "The Fragment on Machines" and sections on the "General 
Intellect", pages 690ff.

21. The Free Software Definition - "'Free software' does not mean 
'non-commercial'. A free program must be available for commercial use, 
commercial development, and commercial distribution..." sw.html).

22. As Lessig teaches us: "Free resources have nothing to do with 
communism ... I am not arguing that there is such a thing as a 'free 
lunch' ... Resources cost money to produce. They must be paid for if 
they are to be produced. ...But how a resource is produced says nothing 
about how access to that resource is granted. Production is different to 
consumption". Lawrence Lessig, The Future of Ideas, page 13. Again I 
must leave this argument for another day.

23. Antonio Negri, Insurgencies, page 164.

24. Michael Hardt and Antonio Negri, Empire, Harvard University Press, 
2001. The fullest definition given by Hardt and Negri of immaterial 
labour is probably found at pages 290-294.

25. Paul Patton, Deleuze and the Political, Routledge, 2000, page 17.

26. See for example Gilles Deleuze and Felix Guattari, Anti-Oedipus, 
Capitalism and Schizophrenia, Viking, 1977, page 230.

27. Paul Patton, Deleuze and the Political, page 96.

28. Gilles Deleuze and Felix Guattari, A Thousand Plateaus, University 
of Minnesota Press, 2002, page 166.

29. "The quiet war over open-source", Jonathan Krim, The Washington 
See also dossier: WIPO Knuckles under on open-source software, 29 August 
2003, <> and Paul 
Kedrosky, "A Reasonable Discussion Hijacked", National Post, Canada, 23 
August 2003.

30. Lawrence Lessig, The Extremists in Power,

31. Darl Mc Bride Open letter to the Open Source Community,

32. November 18, 2003. First Internet music piracy convictions - 
Suspended sentences over music piracy

33. Michel Foucault, "On Governmentality" (1978), Ideology and 
Consciousness, No. 6 (Autumn 1979) pp. 8 ,10, cited in Paul Rainbow, 
Ed., The Foucault Reader p.15, Panthenon, 1984.

34.,720 8,8061044 
Here again the link between policing and the economic functioning of the 
"information society" was made clear to be both the duty of the state 
and all honest citizens: "the UN agency says it is actively involved in 
building awareness, the demystification of what intellectual property 
means and training law enforcement authorities. ... I know that 
combating piracy is not an easy task, but it requires efforts of 
governments and international organisations and of course the NGO 
(non-governmental organisation) community".

35.,7204,80 61136 
Ridge continued: "We must be as diligent and determined as the hackers". 
And note that there is not so much light between the position of SCO and 
Ridge on this one.

36. ICANN - the Internet Corporation for Assigned Names and Numbers, a 
U.S. Company that 'governs' the use and assignment of internet domain 
names, internet protocol addresses, port numbers and related matters.


38. See Groklaw's contributing coverage of the SCO spectacle at In particular regarding the "attacks": 63721614 
<> 71912108 
<> 11633554 

39. Deleuze and Guattari, A Thousand Plateaus, page 116.

40. The SCO related cases are: SCO v IBM case and the Red Hat v SCO 
case. The various court documents can be found on the Groklaw site: legal-docs 

41. Eldred et al. vs. Ashcroft,

42. Murphy, Fleming and Barber, American Constitutional Interpretation, 
2nd Ed Foundation Press, 1995, Ch 16 "The Right to Property: To 
Individual Autonomy and Back", page 1071.

43. Murphy et al, page 1072.

44. Murphy et al, page 1073.

45. Murphy et al, page 1074-5.

46. Murphy et al, page 1076.

47. Allgeyer vs. Louisiana 165 U.S. 578 (1897); see Murphy et al, page 1077.

48. Lochner vs. New York 198 U.S. 45 (1905) In Lochner, the Court ... held 
that a state law limiting bakers to no more than a 60-hour work week was 
a 'mere meddlesome interference' with freedom of contract.

49. Julie E Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of 
"Rights Management", 97 Mich. L. Rev 462 (1988), pdf 

50. Whether the issues up for grabs and the SCO litigation has any legal 
basis is another topic entirely but those issues could be briefly 
summarised as: 1. The "restrictive nature" of the GPL that gives rise to 
the licences alleged unconstitutionality; 2. The "restrictive nature" of 
the GPL and its alleged subsequent anti-competitive status; and 3. Its 
not restrictive enough nature that gives rise to the charges laid 
against it in relation to the its breach of U.S. Export Regulations - 
that is it is all too freely available to people who are not part of the 
free world.



53. Eldred et al. vs. Ashcroft, Footnote 18 

54. "Control and Becoming, An interview with Gilles Deleuze" by Antonio 



"the riddle which man must solve, he can only solve in being, in 
being what he is and not something else...."

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