Over at Concurring Opinions, Biella Coleman writes a very good post on her anthropological work on hackers. In it Biella states what many of us who have looked at the world of free and open source software think:
[M]any developers are nimble legal thinkers, which helps explain how they have built, in a relatively short time period, a robust alternative body of legal theory and laws
I don’t fully agree with the reasons that Biella gives for why this might be so (i.e., similarities between programming and the writing of laws), but I don’t doubt for a second that this is true. Anyone that comes into contact with free and open source software (FOSS) licensing, and with the rich, vibrant discourse that permeates the FOSS community about about copyright and patent law will know that many hackers know the law really well, and they know how to hack the law to make it work for them.
So I found Orin Kerr’s response curiously skeptical:
Can you give a few examples of how the group you have studied are “nimble legal thinkers”? And what are the “robust alternative body of legal theory and laws” that you mention? I think I can say I’ve been somewhat near this space for a few years and I wouldn’t reach that conclusion: I’ve encountered a lot of naive and self-serving legal claims over the years, but not a lot that I would call nimble or robust.
I think the replies in the comments space address Kerr adequately but I’d like to throw in my tuppence in any case. And I’ll do so by talking about what I know best: FOSS licensing.
First, I think FOSS licenses present an alternative body of legal constructs that show how within a political economy that was increasingly becoming proprietary and using copyright, patent and trade secret law to lock down its content (copyright executables; patent algorithms; treat code as trade secrets), an alternative zone of creation can be created, which can flourish, be viable, and be richly productive of more and better code. (Look for instance, at how FOSS licenses solve the problem of protecting their projects from patent infringement lawsuits, and how they solve the problems inherent in multiple-authorship of a body of code).
Second, as for being “nimble” thinkers, I think copyleft licensing is a work of genius–hats off, Richard Stallman and Eben Moglen–and represents, in my mind, one of the cleverest backs to the legal system that I’ve seen. The GPL–in all its incarnations–reveals a deep understanding of the law, and how best to utilize it to bring about desired ends–solving the problem of non-reciprocity that could create a tragedy of the commons–within an existent legal framework (the GPL’s protection of the commons gives it a practical and ethical advantage over other FOSS licenses). Read GPL V3 and look at how cleverly it addresses the challenges that made it’s release necessary; it’s “nimble” all right. Any lawyer that reads the GPL, understands it, and gets what it is trying to do, should be struck by the sheer cleverness of how copyright law can be made to serve ends that might not look like its original intended ones, but actually turn out to be in great resonance with them.
Third, I don’t think it is any exaggeration to say that a great deal of thinking about how artistic content in the new political economy of the digital world could be distributed and regulated in a way that is respectful of artists and consumers’ interests alike, has been inspired by FOSS licensing. (Creative Commons licensing is a very good example of this; that body of licenses presents an alternative way to deal with artistic content today; it isn’t perfect, but it’s a start, and it got started by FOSS licenses). Sometimes I wonder indeed, if anyone talking about the new digital economy and how to legally configure hasn’t been inspired by FOSS licensing and practices somehow.
When it comes to being “self-serving,” I’d suggest that there is a general tendency in the legal academy to simply not admit that law can be “done” by non-lawyers, that a body of rules built up over a period of time can be “hacked” by others than them.