G. Slashdot and “Code Is Law”
¶ 1 Leave a comment on paragraph 1 0 In the late 1990s, the website Slashdot did for open source what Wired magazine did for computer entrepreneurialism in the early 1990s. Created in 1997 by Linux enthusiast, student, and part-time commercial website developer Rob Malda, Slashdot evolved from a small website for listing and discussing technical issues mixed with personal anecdotes into the leading forum for open source enthusiasts, playing no small role in establishing a cultural tone for the movement and helping to communicate that tone to the rest of the constantly expanding web-surfing world. Slashdot‘s title banner describes it as “News for Nerds. Stuff That Matters” (as if in mockery of the self-confident grandiosity of the New York Times subhead “All the News That’s Fit to Print”). Created before blogging entered the lexicon, Slashdot presented itself as self-consciously eccentric and as an entry-point into a labyrinthine world; updated around the clock, each front-page “story” on Slashdot consists of a short paragraph of “news” followed by an always steadily growing train of posts from reader/contributors. Scrolling is a necessary part of the experience, as is following links; the familiar slashdot- effect refers to the highly predictable overloading of external web sites within minutes after their URLs are posted in Slashdot stories. While much of Slashdot’s content concerns open software fairly directly―new Linux software releases, developments in intellectual property law―a good deal of the content is more general, reflecting the interests and spirit of its young coding-adept or technologically fascinated producers and readers: intriguing developments in science, reviews of science-fiction films, amazing things done with Lego.
¶ 2 Leave a comment on paragraph 2 0 Like Wired several years before, much of the thrill of Slashdot comes from the implication that you, the clever Slashdot reader, stand apart from despised others in the world―from the drones in suits who work for Bill Gates, for example. The implication, then, is that by reading Slashdot, you are part of a distinct cadre; the community is very much defined in terms of its opponents. While enamored of open source, the ethos is not particularly communitarian or somberly political. It is perhaps not accidental that the term slashdot derives from the keyboard command “/.” that takes the operator to the root directory of Unix systems, a privilege only available to system operators with absolute superuser privileges over a multiuser system. It’s a common command if you’re fiddling with the technical setup of a Unix system. But it’s also about power. If you can type “/.” on a Unix computer and get to root, you can get into and modify anyone’s account on the system. You can do things like erase the entire hard disk, or read other people’s email, or change their passwords. You are, in the narrow world of that computer, omnipotent. Slashdot feels more like a band of misfit heroes than a Quaker meeting.
¶ 3 Leave a comment on paragraph 3 0 While the open software movement had been quietly gestating, legal intellectuals like Lessig and James Boyle had been exploring the intersection of intellectual property concerns with the internet as a way to bring fundamental questions about the law into broader recognition. Boyle, for example, moved from law journal articles about theories of legal interpretation to a series of pieces about internet issues such as privacy, censorship, and intellectual property. Well schooled in the debates about the ambiguities and limits of the category of authorship, Boyle tended towards an emphasis on the limits and blind spots of a strictly individualist, rights-based approach to law and technology. Early in his career he published an essay on the limits of the idea of individual subjectivity, bringing Foucault’s critique of the subject into critical legal theory by showing how the idea of subjectivity itself is an unstable category, an effect rather than cause. In his 1996 Shamans, Software, and Spleens he described the use of the romantic author construct in intellectual property law as an author ideology that blinded its adherents to the often collective sources of cultural innovation. In 1997, he published an essay criticizing the underlying assumptions of Wired-style digital libertarianism; calling for an internet analogue to the environmental movement that focuses on the structures and strictures of emerging intellectual property regimes, he has sought in various ways to emphasize the importance of actively supporting the public domain and shared culture more broadly. In general, he pointed towards kinds of civic republicanism as an antidote to what he portrays as the blinkered and short-sighted radical rights-based individualism that motivated both trends in intellectual property law and much of the thinking about the internet in the 1990s. Maybe there is more to life than Emerson’s autonomous self after all.
¶ 4 Leave a comment on paragraph 4 0 Larry Lessig started out on a similar trajectory, moving from theories of legal interpretation into the worlds of internet law and intellectual property, similarly bringing with him a sharp sense of the way that legal rights can be as constraining as they can be freeing. Lessig’s best known book, Code and Other Laws of Cyberspace, is based on what looks like a classic legal realist maneuver; by pointing to the regulatory character of various private activities―in this case, coding―one undermines the common assumption that narrowly defines freedom as the opposite of government action. A simple demand that government keep its hands off the internet, Lessig patiently explained to his internet-fascinated readership, was no guarantee that the internet would remain free. In this Lessig was in keeping with the tradition of legal realism that also influenced Boyle, Jaszi, and others.
¶ 5 Leave a comment on paragraph 5 0 Unlike Boyle, however, Lessig did not pursue the Foucauldian critique of the subject and its interest in the limits and conditions to the idea of a free individual. For Lessig, the free individual was still very much the goal; his argument just pointed to the ways that private as well as government efforts could limit freedom. Open source software is “a check on arbitrary power. A structural guarantee of constitutionalized liberty, it functions as a type of separation of powers in the American constitutional tradition. It stands alongside substantive protections, like freedom of speech or of the press, but its stand is more fundamental.” If Boyle was calling for his readers to abandon an obsession with the abstract free individual and start thinking more complexly about the social conditions that support innovation and culture, Lessig presented the choice as a simple, stark one: Lessig titled one essay, “An Information Society: Free or Feudal?” While standing alongside Boyle in attacking the libertarian notion that markets and private property are the sole guarantors of freedom, Lessig seemed to concede to the libertarians one thing that Boyle did not: the idea that freedom itself is a simple condition, an absence of constraint, the ability of individuals to do what they want, especially to express themselves, to engage their creativity. Boyle approached the romantic ideal of individualism skeptically. Lessig embraced it.
¶ 6 Leave a comment on paragraph 6 0 A search of the last decade of Slashdot postings for the name “James Boyle” turns up about fifty hits. Lessig turns up over one thousand. Lessig’s large readership is the product of many factors, not least of which are his immense talent, persistence, productivity, and character. But he also writes and speaks in ways that are carefully tuned to audiences like Slashdot, for whom the free individual is understood in romantic terms: as someone who creatively expresses themselves, often against the powers that be, and gets acknowledged for their accomplishments. Boyle is arguably wise in asking his readers to think beyond an obsessive focus on an abstract individual freedom. Lessig, however, by choosing as a starting point to emphasize the gap between a romantic individualism and the utilitarian one, has found a framework that resonates with a larger audience.