Both Devil and Gnu

In the last few years we have seen various instantiations of the struggle centered around ownership over data, information and codes. Social relations and communication are becoming increasingly embedded into technological systems, and the production in these domains thus acquires an ever greater importance over material production and exchange of goods. Through mechanisms of automatic subsumption under the dominant liberal market logic this production also becomes a space for new appropriation by capital. That is, as information technologies, on one hand, more and more comprehensively inform processes of material production, and as information and technologies themselves, on the other, account for an ever greater share of market production, data, information and codes become a new privileged field of accumulation. Those who own information, steer the mechanisms of economic (re)production.

Though it is not new, the issue of intellectual property becomes central in the course of these events. For as market processes seek to subsume the expanding domain of communication production to the regimes of proprietary regulation, societies get confronted with increasing limitations of free use of intellectual heritage and of production of new intellectual goods that constitute basic means of social reproduction - a resource once considered a commons.

Ubiquitous efforts by media industries, undaunted by new possibilities of technological reproduction, to deter copying of their products (most prominently of software, music and movies) and, in collusion with the ortho-liberal lawmakers, to extend and expand exploitation regimes of intellectual property, lead to belief that the intellectual property entails a conflict of interests between producers and consumers. But, this in fact reflects an even more comprehensive social conflict brought about by the expansion of proprietary-commercial regulation into the domains of technological codes and information and communication technology standards, of exclusive rights to use sequences of human genetic code, and of social processes determining the regulation of those commons. Thus, the growing domain of cognitive and affective production and consumption is complemented by the efforts to take parts of communicational, biological and social codes out of public domain and privatize them.

This shift in relations between private and public resources in the domain of intellectual property constitutes a wider context for debates on the new regulation of these relations and on the efforts to contain capital appropriation of new innovations made possible by technological progress. We want to hint at this context in order to consider differences in reach between two such efforts: unconditional dedication of innovations to public domain (such is the case of fundamental protocols Internet is based on or of operative systems under the BSD license) and licensing practices securing freedom to use and develop further innovations (such is the case of the GNU/Linux operative system with its General Public License).

Let us consider the examples provided by the TCP/IP, HTTP protocols and HTML language that constitute the fundaments for the exchange of data over Internet and are in public domain (and are not protected by the GNU General Public License or any similar license). They have created a global resource with a distinctive public character that is distinguished by its neutrality with respect to different kinds of content and by the distributed transfer of data neutral with respect to the positions of sender and receiver. This logical code of Internet, that is a commons, functions on a physical infrastructure that is mostly privately owned by telecommunication and cable companies and transfers content that can either be a copyrighted private property or dedicated to the public domain.

From the case of Internet protocols we thus draw following conclusions regarding the dedication to the public domain: 1) commons status allows an innovation to create an entirely new, widely employed resource; 2) commons remains neutral as to whether its employment serves to develop the public interests or private interests domain.

However, if we come back to the development of Internet, we are also witnessing that primarily economic exploitation, but also security control, of Internet demands control over the data flow. To make this possible it is necessary to thoroughly change its logical code as it was established through protocols and technologies that are today public resources, and build a system that is no longer neutral, but rather differentiating and exclusive. This leads us to the conclusion: 3) an intellectual good, once it is given over to the public domain, for very reasons of its neutrality concerning the protection of public domain, can become subject to the expansion of the private domain within the resources it established.

Unlike the transfer of innovations into the public domain that institutes public resources in the first place, licensing solutions employed to protect freedoms, such as GNU General Public License, come only as a reaction to already instituted situations where the existing or newly created resources are subjected to a gradually progressive appropriation into the proprietary-commercial relations. Free software was thus created in an already instituted situation where the software code, that up until then used to be produced as a public resource through the free exchange and collaboration of software developers working in the academic complex, was pressured to give way to its gradual enclosure into the private property. GNU General Public License - using the copyright to set the terms securing that the user cannot appropriate the code, but rather has to see to it that the code is being passed on under the same terms - secured the protection of public access to the resource protected there under. For this reason the GNU GPL, same as other licenses that secure freedom and openness of contents that are not unconditionally turned over to the public domain, create solutions that are reactive and particular with respect to the existing relation between market and public regulation.

But nowadays the public domain is acutely being reduced by means of market regulation. An indication of this situation is the automatism by which the legal regulation (beginning in 1976 in the US) regards all new intellectual production as private property, unless it is not explicitly exempted from it. Reacting to this, GNU General Public License protects the freedom to use and to develop, but at the same time creates a strategic collective subject - one of rare proactive advocates of public interest. Namely, while dedication to the public domain transforms a product into a public resource, GNU General Public License primarily defines the contractual relation that serves to secure the freedom of means of production and to constitute a community of those participating in the production and reproduction of free resources. And it is this constitutive character, as an answer to an every time singular situation of appropriation by the capital, that is a genuine political emancipation striving for an equal and free collective production.

Marcell Mars & Tom Medak

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