The code and codex of the commons

I hope that Bastien Guerry’s essay on Points de repère sur les communs numériques will be translated as it is the best I have seen on a very difficult topic that was perhaps first covered to popular acclaim by Lawrence Lessig in his 2000 essay on the problems of regulating cyberspace and which Bernard Stiegler picked up just a few years ago as remaining urgently unresolved.

Guerry points to how the digital commons are based on:
  1. A digital resource
  2. A community that manages it
  3. Explicit rules of management

More specifically, however, he points out that the commons can be defined in terms of their accessibility (free or not) and their juridical status (under a free license or not). He gives various examples (Wikipedia published under CC BY-SA, images under CC BY-NA, and GNU Emacs) that are free and free of cost, free of cost but not free, and free but not free of cost, respectively.

A community needs rules in order to manage its resources, whether they are or are not free/free of cost. Guerry points out that participatory governance is not the trait of some of the best-known commons (e.g. Wikipedia, Linux). He comes up with a grid – which I won’t reproduce here as I hope he will translate the post – that culminates in the question of whether we agree on what the “commons” means: is it an open community, democratically-formed rules, a resource with a free license?

But, he notes, these questions are further complicated when we consider the problem of ‘non-rival’ resources now that we have seen that these can be blocked from being replicated, such as through the example of non-fungible tokens (NFTs). This illustration reveals that the replicability of digital information is not an inherent quality of the digital information itself. Additionally, where free resources are concerned, users can make use of them how they like…

The commons become strategic where they are large and are involved in large-scale reuse.

Digital commons cannot simply be used or contributed to thoughtlessly as they can come with dependencies, such as where big players may seek to influence those commons that they may be relying on (juridically, technically) or have an interest in. Free digital commons – where the resources can be freely used, shared, and modified – may be particularly attractive in that they impose no juridical dependencies.

It may be inferred that democracy where strategy is involved can lead to a compromise in the value of the free commons. Guerry explores deontological views, ranging from a concern over free access vs. the free license vs. an interest in the rules of management and the (semantic, functional) content of the resource. He then considers consequentialist views, such as one that would, for example, take a negative view of a contribution to the commons that produces something subsequently used for ill-purpose.

There is no one-time-for-all fixed answer, he concludes, but the prevalence of the issue urges us all to think through this, together.

Guerry’s essay did an excellent job in ‘fight[ing] against the tendency to annul contrasts and differences’ in the world (cf. Ricoeur 1991: 130). His work reminds me of the différance Stiegler advocated, though Stiegler was unequivocal about the threat to human existence through the way code is being regulated (or, rather, unregulated).

Stiegler describes the attempt of ‘computational capitalism’ to hardwire code in the brain in order to then calculate it in a closed, and therefore entropic and ultimately self-destructive system (2018: 251), which we know to be an attempt some actors are seeking to realize quite literally (e.g. Peters et al. 2021). This is problematic because it short-circuits the natural way that laws emerge, which is through being externalized by institutions as symbolic knowledge which is then internalized by people. It is this latter point – I think, if I have understood Stiegler correctly – that needs to be stressed. It is up to all of us, now, to understand the meaning of our access to the knowledge of the commons.

We should note well that regulation is very much on the mind of the World Economic Forum’s Klaus Schwab. He predicts that in the Fourth Industrial Revolution there will be less and less time for policy decisions to be deliberated given the acceleration due to the next waves of digital breakthroughs. We already see companies like AutoML replacing even expert human programmers with machines that teach machines (to say nothing of the organizational complexities this may lead to, e.g. Bainbridge 1983, Cook 2000). As more and more aspects of our lives are expected to become mediated by digital code, it becomes important to think about the relation of code to codex, or law.

The free commons, by offering the possibility to use, modify, and share, represents the justice of the right to know. Stiegler writes of the ‘duty that befalls all of us to guarantee the right and the duty to access knowledge and to access it ourselves‘ (2018: 261). He also advocates the question of justice, which is an orientation that is beyond the law, because it directs thinking: ‘Justice stands ‘beyond the law’ because it is the compass of the principle of subjective differentiation between fact and law that constitutes the stakes of ‘What is Orientation in Thinking?’ (2018: 245).

We need to decide what we know, if anything, about sharing knowledge – or if we think institutions should appropriate the symbols of knowledge for us. This is an abstract, forceful conclusion. Guerry’s piece is far more clear, concrete, and balanced; I hope you will read it.


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