SCI-HUB d/b/a WWW.SCI-HUB.ORG, THE LIBRARY GENESIS PROJECT d/b/a LIBGEN.ORG, ALEXANDRA ELBAKYAN, JOHN DOES 1-99,
Defendants.
Plaintiffs Elsevier Inc, Elsevier B.V., and Elsevier Ltd. (collectively “Elsevier”),
by their attorneys DeVore & DeMarco LLP, for their complaint against www.scihub.org,
www.libgen.org, Alexandra Elbakyan, and John Does 1-99 (collectively the “Defendants”),
allege as follows:
NATURE OF THE ACTION
1. This is a civil action seeking damages and injunctive relief for: (1) copyright infringement under the copyright laws of the United States (17 U.S.C. § 101 et seq.); and (2) violations of the Computer Fraud and Abuse Act, 18.U.S.C. § 1030, based upon Defendants’ unlawful access to, use, reproduction, and distribution of Elsevier’s copyrighted works. Defendants’ actions in this regard have caused and continue to cause irreparable injury to Elsevier and its publishing partners (including scholarly societies) for which it publishes certain journals.
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PARTIES
2. Plaintiff Elsevier Inc. is a corporation organized under the laws of Delaware, with its principal place of business at 360 Park Avenue South, New York, New York 10010.
3. Plaintiff Elsevier B.V. is a corporation organized under the laws of the Netherlands, with its principal place of business at Radarweg 29, Amsterdam, 1043 NX, Netherlands.
4. Plaintiff Elsevier Ltd. is a corporation organized under the laws of the United Kingdom, with its principal place of business at 125 London Wall, EC2Y 5AS United Kingdom.
5. Upon information and belief, Defendant Sci-Hub is an individual or organization engaged in the operation of the website accessible at the URL “www.sci-hub.org,” and related subdomains, including but not limited to the subdomain “www.sciencedirect.com.sci-hub.org,”
www.elsevier.com.sci-hub.org,” “store.elsevier.com.sci-hub.org,” and various subdomains
incorporating the company and product names of other major global publishers (collectively with www.sci-hub.org the “Sci-Hub Website”). The sci-hub.org domain name is registered by
“Fundacion Private Whois,” located in Panama City, Panama, to an unknown registrant. As of
the date of this filing, the Sci-Hub Website is assigned the IP address 31.184.194.81. This IP address is part of a range of IP addresses assigned to Petersburg Internet Network Ltd., a webhosting company located in Saint Petersburg, Russia.
6. Upon information and belief, Defendant Library Genesis Project is an organization which operates an online repository of copyrighted materials accessible through the website located at the URL “libgen.org” as well as a number of other “mirror” websites
(collectively the “Libgen Domains”). The libgen.org domain is registered by “Whois Privacy
Corp.,” located at Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, New Providence,
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Bahamas, to an unknown registrant. As of the date of this filing, libgen.org is assigned the IP address 93.174.95.71. This IP address is part of a range of IP addresses assigned to Ecatel Ltd., a web-hosting company located in Amsterdam, the Netherlands.
7. The Libgen Domains include “elibgen.org,” “libgen.info,” “lib.estrorecollege.org,” and “bookfi.org.”
8. Upon information and belief, Defendant Alexandra Elbakyan is the principal owner and/or operator of Sci-Hub. Upon information and belief, Elbakyan is a resident of Almaty, Kazakhstan.
9. Elsevier is unaware of the true names and capacities of the individuals named as Does 1-99 in this Complaint (together with Alexandra Elbakyan, the “Individual Defendants”),
and their residence and citizenship is also unknown. Elsevier will amend its Complaint to allege the names, capacities, residence and citizenship of the Doe Defendants when their identities are learned.
10. Upon information and belief, the Individual Defendants are the owners and operators of numerous of websites, including Sci-Hub and the websites located at the various
Libgen Domains, and a number of e-mail addresses and accounts at issue in this case.
11. The Individual Defendants have participated, exercised control over, and benefited from the infringing conduct described herein, which has resulted in substantial harm to
the Plaintiffs.
JURISDICTION AND VENUE
12. This is a civil action arising from the Defendants’ violations of the copyright laws of the United States (17 U.S.C. § 101 et seq.) and the Computer Fraud and Abuse Act (“CFAA”),
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18.U.S.C. § 1030. Therefore, the Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.
13. Upon information and belief, the Individual Defendants own and operate computers and Internet websites and engage in conduct that injures Plaintiff in this district, while
also utilizing instrumentalities located in the Southern District of New York to carry out the acts complained of herein.
14. Defendants have affirmatively directed actions at the Southern District of New York by utilizing computer servers located in the District without authorization and by
unlawfully obtaining access credentials belonging to individuals and entities located in the
District, in order to unlawfully access, copy, and distribute Elsevier's copyrighted materials
which are stored on Elsevier’s ScienceDirect platform.
15.
Defendants have committed the acts complained of herein through unauthorized
access to Plaintiffs’ copyrighted materials which are stored and maintained on computer servers
located in the Southern District of New York.
16.
Defendants have undertaken the acts complained of herein with knowledge that
such acts would cause harm to Plaintiffs and their customers in both the Southern District of
New York and elsewhere. Defendants have caused the Plaintiff injury while deriving revenue
from interstate or international commerce by committing the acts complained of herein.
Therefore, this Court has personal jurisdiction over Defendants.
17.
Venue in this District is proper under 28 U.S.C. § 1391(b) because a substantial
part of the events giving rise to Plaintiffs’ claims occurred in this District and because the
property that is the subject of Plaintiffs’ claims is situated in this District.
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FACTUAL ALLEGATIONS
Elsevier’s Copyrights in Publications on ScienceDirect
18.
Elsevier is a world leading provider of professional information solutions in the
Science, Medical, and Health sectors. Elsevier publishes, markets, sells, and licenses academic
textbooks, journals, and examinations in the fields of science, medicine, and health. The
majority of Elsevier’s institutional customers are universities, governmental entities, educational
institutions, and hospitals that purchase physical and electronic copies of Elsevier’s products and
access to Elsevier’s digital libraries. Elsevier distributes its scientific journal articles and book
chapters electronically via its proprietary subscription database “ScienceDirect”
(www.sciencedirect.com). In most cases, Elsevier holds the copyright and/or exclusive
distribution rights to the works available through ScienceDirect. In addition, Elsevier holds
trademark rights in “Elsevier,” “ScienceDirect,” and several other related trade names.
19.
The ScienceDirect database is home to almost one-quarter of the world's peer-
reviewed, full-text scientific, technical and medical content. The ScienceDirect service features
sophisticated search and retrieval tools for students and professionals which facilitates access to
over 10 million copyrighted publications. More than 15 million researchers, health care
professionals, teachers, students, and information professionals around the globe rely on
ScienceDirect as a trusted source of nearly 2,500 journals and more than 26,000 book titles.
20.
Authorized users are provided access to the ScienceDirect platform by way of
non-exclusive, non-transferable subscriptions between Elsevier and its institutional customers.
According to the terms and conditions of these subscriptions, authorized users of ScienceDirect
must be users affiliated with the subscriber (e.g., full-time and part-time students, faculty, staff
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and researchers of subscriber universities and individuals using computer terminals within the
library facilities at the subscriber for personal research, education or other non-corporate use.)
21.
A substantial portion of American research universities maintain active
subscriptions to ScienceDirect. These subscriptions, under license, allow the universities to
provide their faculty and students access to the copyrighted works within the ScienceDirect
database.
22.
Elsevier stores and maintains the copyrighted material available in ScienceDirect
on servers owned and operated by a third party whose servers are located in the Southern District
of New York and elsewhere. In order to optimize performance, these third-party servers
collectively operate as a distributed network which serves cached copies of Elsevier’s
copyrighted materials by way of particular servers that are geographically close to the user. For
example, a user that accesses ScienceDirect from a University located in the Southern District of
New York will likely be served that content from a server physically located in the District.
Authentication of Authorized University ScienceDirect Users
23.
Elsevier maintains the integrity and security of the copyrighted works accessible
on ScienceDirect by allowing only authenticated users access to the platform. Elsevier
authenticates educational users who access ScienceDirect through their affiliated university’s
subscription by verifying that they are able to access ScienceDirect from a computer system or
network previously identified as belonging to a subscribing university.
24.
Elsevier does not track individual educational users’ access to ScienceDirect.
Instead, Elsevier verifies only that the user has authenticated access to a subscribing university.
25.
Once an educational user authenticates his computer with ScienceDirect on a
university network, that computer is permitted access to ScienceDirect for a limited amount of
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time without re-authenticating. For example, a student could access ScienceDirect from their
laptop while sitting in a university library, then continue to access ScienceDirect using that
laptop from their dorm room later that day. After a specified period of time has passed, however,
a user will have to re-authenticate his or her computer’s access to ScienceDirect by connecting to
the platform through a university network.
26.
As a matter of practice, educational users access university networks, and thereby
authenticate their computers with ScienceDirect, primarily through one of two methods. First,
the user may be physically connected to a university network, for example by taking their
computer to the university’s library. Second, the user may connect remotely to the university’s
network using a proxy connection. Universities offer proxy connections to their students and
faculty so that those users may access university computing resources – including access to
research databases such as ScienceDirect – from remote locations which are unaffiliated with the
university. This practice facilitates the use of ScienceDirect by students and faculty while they
are at home, travelling, or otherwise off-campus.
Defendants’ Unauthorized Access to University Proxy Networks to Facilitate Copyright
Infringement
27.
Upon information and belief, Defendants are reproducing and distributing
unauthorized copies of Elsevier’s copyrighted materials, unlawfully obtained from
ScienceDirect, through Sci-Hub and through various websites affiliated with the Library Genesis
Project. Specifically, Defendants utilize their websites located at sci-hub.org and at the Libgen
Domains to operate an international network of piracy and copyright infringement by
circumventing legal and authorized means of access to the ScienceDirect database. Defendants’
piracy is supported by the persistent intrusion and unauthorized access to the computer networks
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of Elsevier and its institutional subscribers, including universities located in the Southern District
of New York.
28.
Upon information and belief, Defendants have unlawfully obtained and continue
to unlawfully obtain student or faculty access credentials which permit proxy connections to
universities which subscribe to ScienceDirect, and use these credentials to gain unauthorized
access to ScienceDirect.
29.
Upon information and belief, Defendants have used and continue to use such
access credentials to authenticate access to ScienceDirect and, subsequently, to obtain
copyrighted scientific journal articles therefrom without valid authorization.
30.
The Sci-Hub website requires user interaction in order to facilitate its illegal
copyright infringement scheme. Specifically, before a Sci-Hub user can obtain access to
copyrighted scholarly journals, articles, and books that are maintained by ScienceDirect, he must
first perform a search on the Sci-Hub page. A Sci-Hub user may search for content using either
(a) a general keyword-based search, or (b) a journal, article or book identifier (such as a Digital
Object Identifier, PubMed Identifier, or the source URL).
31.
When a user performs a keyword search on Sci-Hub, the website returns a proxied
version of search results from the Google Scholar search database. 1 When a user selects one of
the search results, if the requested content is not available from the Library Genesis Project, SciHub unlawfully retrieves the content from ScienceDirect using the access previously obtained.
Sci-Hub then provides a copy of that article to the requesting user, typically in PDF format. If,
however, the requested content can be found in the Library Genesis Project repository, upon
1
Google Scholar provides its users the capability to search for scholarly literature, but does not provide the
full text of copyrighted scientific journal articles accessible through paid subscription services such as
ScienceDirect. Instead, Google Scholar provides bibliographic information concerning such articles along with a
link to the platform through which the article may be purchased or accessed by a subscriber.
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information and belief, Sci-Hub obtains the content from the Library Genesis Project repository
and provides that content to the user.
32.
When a user searches on Sci-Hub for an article available on ScienceDirect using a
journal or article identifier, the user is redirected to a proxied version of the ScienceDirect page
where the user can download the requested article at no cost. Upon information and belief, SciHub facilitates this infringing conduct by using unlawfully-obtained access credentials to
university proxy servers to establish remote access to ScienceDirect through those proxy servers.
If, however, the requested content can be found in the Library Genesis Project repository, upon
information and belief, Sci-Hub obtains the content from it and provides it to the user.
33.
Upon information and belief, Sci-Hub engages in no other activity other than the
illegal reproduction and distribution of digital copies of Elsevier’s copyrighted works and the
copyrighted works of other publishers, and the encouragement, inducement, and material
contribution to the infringement of the copyrights of those works by third parties – i.e., the users
of the Sci-Hub website.
34.
Upon information and belief, in addition to the blatant and rampant infringement
of Elsevier’s copyrights as described above, the Defendants have also used the Sci-Hub website
to earn revenue from the piracy of copyrighted materials from ScienceDirect. Sci-Hub has at
various times accepted funds through a variety of payment processors, including PayPal,
Yandex, WebMoney, QiQi, and Bitcoin.
Sci-Hub’s Use of the Library Genesis Project as a Repository for Unlawfully-Obtained
Scientific Journal Articles and Books
35.
Upon information and belief, when Sci-Hub pirates and downloads an article from
ScienceDirect in response to a user request, in addition to providing a copy of that article to that
user, Sci-Hub also provides a duplicate copy to the Library Genesis Project, which stores the
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article in a database accessible through the Internet. Upon information and belief, the Library
Genesis Project is designed to be a permanent repository of this and other illegally obtained
content.
36.
Upon information and belief, in the event that a Sci-Hub user requests an article
which has already been provided to the Library Genesis Project, Sci-Hub may provide that user
access to a copy provided by the Library Genesis Project rather than re-download an additional
copy of the article from ScienceDirect. As a result, Defendants Sci-Hub and Library Genesis
Project act in concert to engage in a scheme designed to facilitate the unauthorized access to and
wholesale distribution of Elsevier’s copyrighted works legitimately available on the
ScienceDirect platform.
The Library Genesis Project’s Unlawful Distribution of Plaintiff’s Copyrighted Works
37.
Access to the Library Genesis Project’s repository is facilitated by the website
“libgen.org,” which provides its users the ability to search, download content from, and upload
content to, the repository. The main page of libgen.org allows its users to perform searches in
various categories, including “LibGen (Sci-Tech),” and “Scientific articles.” In addition to
searching by keyword, users may also search for specific content by various other fields,
including title, author, periodical, publisher, or ISBN or DOI number.
38.
The libgen.org website indicates that the Library Genesis Project repository
contains approximately 1 million “Sci-Tech” documents and 40 million scientific articles. Upon
information and belief, the large majority of these works is subject to copyright protection and is
being distributed through the Library Genesis Project without the permission of the applicable
rights-holder. Upon information and belief, the Library Genesis Project serves primarily, if not
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exclusively, as a scheme to violate the intellectual property rights of the owners of millions of
copyrighted works.
39.
Upon information and belief, Elsevier owns the copyrights in a substantial
number of copyrighted materials made available for distribution through the Library Genesis
Project. Elsevier has not authorized the Library Genesis Project or any of the Defendants to
copy, display, or distribute through any of the complained of websites any of the content stored
on ScienceDirect to which it holds the copyright. Among the works infringed by the Library
Genesis Project are the “Guyton and Hall Textbook of Medical Physiology,” and the article “The
Varus Ankle and Instability” (published in Elsevier’s journal “Foot and Ankle Clinics of North
America”), each of which is protected by Elsevier’s federally-registered copyrights.
40.
In addition to the Library Genesis Project website accessible at libgen.org, users
may access the Library Genesis Project repository through a number of “mirror” sites accessible
through other URLs. These mirror sites are similar, if not identical, in functionality to
libgen.org. Specifically, the mirror sites allow their users to search and download materials from
the Library Genesis Project repository.
FIRST CLAIM FOR RELIEF
(Direct Infringement of Copyright)
41.
Elsevier incorporates by reference the allegations contained in paragraphs 1-40
42.
Elsevier’s copyright rights and exclusive distribution rights to the works available
above.
on ScienceDirect (the “Works”) are valid and enforceable.
43.
Defendants have infringed on Elsevier’s copyright rights to these Works by
knowingly and intentionally reproducing and distributing these Works without authorization.
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44.
The acts of infringement described herein have been willful, intentional, and
purposeful, in disregard of and indifferent to Plaintiffs’ rights.
45.
Without authorization from Elsevier, or right under law, Defendants are directly
liable for infringing Elsevier’s copyrighted Works pursuant to 17 U.S.C. §§ 106(1) and/or (3).
46.
As a direct result of Defendants’ actions, Elsevier has suffered and continues to
suffer irreparable harm for which Elsevier has no adequate remedy at law, and which will
continue unless Defendants’ actions are enjoined.
47.
Elsevier seeks injunctive relief and costs and damages in an amount to be proven
at trial.
SECOND CLAIM FOR RELIEF
(Secondary Infringement of Copyright)
48.
Elsevier incorporates by reference the allegations contained in paragraphs 1-40
49.
Elsevier’s copyright rights and exclusive distribution rights to the works available
above.
on ScienceDirect (the “Works”) are valid and enforceable.
50.
Defendants have infringed on Elsevier’s copyright rights to these Works by
knowingly and intentionally reproducing and distributing these Works without license or other
authorization.
51.
Upon information and belief, Defendants intentionally induced, encouraged, and
materially contributed to the reproduction and distribution of these Works by third party users of
websites operated by Defendants.
52.
The acts of infringement described herein have been willful, intentional, and
purposeful, in disregard of and indifferent to Elsevier’s rights.
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53.
Without authorization from Elsevier, or right under law, Defendants are directly
liable for third parties’ infringement of Elsevier’s copyrighted Works pursuant to 17 U.S.C. §§
106(1) and/or (3).
54.
Upon information and belief, Defendants profited from third parties’ direct
infringement of Elsevier’s Works.
55.
Defendants had the right and the ability to supervise and control their websites
and the third party infringing activities described herein.
56.
As a direct result of Defendants’ actions, Elsevier has suffered and continues to
suffer irreparable harm for which Elsevier has no adequate remedy at law, and which will
continue unless Defendants’ actions are enjoined.
57.
Elsevier seeks injunctive relief and costs and damages in an amount to be proven
at trial.
THIRD CLAIM FOR RELIEF
(Violation of the Computer Fraud & Abuse Act)
58.
Elsevier incorporates by reference the allegations contained in paragraphs 1-40
59.
Elsevier’s computers and servers, the third-party computers and servers which
above.
store and maintain Elsevier’s copyrighted works for ScienceDirect, and Elsevier’s customers’
computers and servers which facilitate access to Elsevier’s copyrighted works on ScienceDirect,
are all “protected computers” under the Computer Fraud and Abuse Act (“CFAA”).
60.
Defendants (a) knowingly and intentionally accessed such protected computers
without authorization and thereby obtained information from the protected computers in a
transaction involving an interstate or foreign communication (18 U.S.C. § 1030(a)(2)(C)); and
(b) knowingly and with an intent to defraud accessed such protected computers without
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authorization and obtained information from such computers, which Defendants used to further
the fraud and obtain something of value (18 U.S.C. § 1030(a)(4)).
61.
Defendants’ conduct has caused, and continues to cause, significant and
irreparable damages and loss to Elsevier.
62.
Defendants’ conduct has caused a loss to Elsevier during a one-year period
aggregating at least $5,000.
63.
As a direct result of Defendants’ actions, Elsevier has suffered and continues to
suffer irreparable harm for which Elsevier has no adequate remedy at law, and which will
continue unless Defendants’ actions are enjoined.
64.
Elsevier seeks injunctive relief, as well as costs and damages in an amount to be
proven at trial.
PRAYER FOR RELIEF
WHEREFORE, Elsevier respectfully requests that the Court:
A. Enter preliminary and permanent injunctions, enjoining and prohibiting Defendants,
their officers, directors, principals, agents, servants, employees, successors and
assigns, and all persons and entities in active concert or participation with them, from
engaging in any of the activity complained of herein or from causing any of the injury
complained of herein and from assisting, aiding, or abetting any other person or
business entity in engaging in or performing any of the activity complained of herein
or from causing any of the injury complained of herein;
B. Enter an order that, upon Elsevier’s request, those in privity with Defendants and
those with notice of the injunction, including any Internet search engines, Web
Hosting and Internet Service Providers, domain-name registrars, and domain name
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registries or their administrators that are provided with notice of the injunction, cease
facilitating access to any or all domain names and websites through which Defendants
engage in any of the activity complained of herein;
C. Enter an order that, upon Elsevier’s request, those organizations which have
registered Defendants’ domain names on behalf of Defendants shall disclose
immediately to Plaintiffs all information in their possession concerning the identity of
the operator or registrant of such domain names and of any bank accounts or financial
accounts owned or used by such operator or registrant;
D. Enter an order that, upon Elsevier’s request, the TLD Registries for the Defendants’
websites, or their administrators, shall place the domain names on
registryHold/serverHold as well as serverUpdate, ServerDelete, and serverTransfer
prohibited statuses, for the remainder of the registration period for any such website.
E. Enter an order canceling or deleting, or, at Elsevier’s election, transferring the domain
name registrations used by Defendants to engage in the activity complained of herein
to Elsevier’s control so that they may no longer be used for illegal purposes;
F. Enter an order awarding Elsevier its actual damages incurred as a result of
Defendants’ infringement of Elsevier’s copyright rights in the Works and all profits
Defendant realized as a result of its acts of infringement, in amounts to be determined
at trial; or in the alternative, awarding Elsevier, pursuant to 17 U.S.C. § 504, statutory
damages for the acts of infringement committed by Defendants, enhanced to reflect
the willful nature of the Defendants’ infringement;
G. Enter an order disgorging Defendants’ profits;
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Dockray, Pasquinelli, Smith & Waldorf
There is Nothing Less Passive than the Act of Fleeing
2010
# There is Nothing Less Passive than the Act of Fleeing
[The Public School](/web/20170523052416/http://journalment.org/author/public-
school)
What follows is a condensed and edited version of a text for a panel that was
presented at UCIRA’s _Future Tense: Alternative Arts and Economies in the
University_ conference held in San Diego, California on November 18, 2010.
The panel shared the same name as a 13-day itinerant seminar in Berlin
organized by Dockray, Waldorf, and Fiona Whitton earlier that year, in July.
The seminar began with an excerpt from Tiqqun’s _Introduction to Civil War_ ,
which was co-translated into English by Smith; and later read a chapter from
Pasquinelli’s _Animal Spirits: A Bestiary of the Commons_. Both authors have
also participated in meetings at The Public School in Los Angeles and Berlin.
Both the panel and the seminar developed out of longer conversations at The
Public School in Los Angeles, which began in late 2007 under Telic Arts
Exchange. The Public School is a school with no curriculum, where classes are
proposed and organized by the public.
## The Education Factory
The University as I understand it, has been a threshold between youth and the
labor market. Or it has been a threshold between a general education and a
more specialized one. In its more progressive form, it’s been a zone of
transition into an expanding middle class. But does this form still exist? I’m
inclined to think just the opposite, that the University is becoming a mean
for filtering people out of the middle class via student loan debt, which now
exceeds credit card debt. The point of the questions for me is simply what is
the point of the University? What are we fighting for or defending?
The next question might be, do students work? The University is a crucial site
in the reproduction of class relations; we know that students are consumers;
we know the student is a future worker who will be compelled to work, and work
in a specific way, because she/he is crushed by debt contracted during her/his
tenure as a student; we know that students work while attending school, and
that for many students school and work eerily begin to resemble one another.
But asking whether students work is to ask something more specific: do
students produce value and, therefore surplus-value? If we can assume, for the
moment, that students are a factor in the “knowledge production” that takes
place in the University, is this production of knowledge also the production
of value? We confront, maybe, a paradox: all social activity has become
“productive”—captured, absorbed—at the very moment value becomes unmeasurable.
What does this have to do with students, and their work? The thesis of the
social factory was supplemented by the assumption that knowledge had become a
central mode in the production of value in post-Fordist environments. Wouldn’t
this mean that the university could become an increasingly important
flashpoint in social struggles, now that it has become not simply the site of
the reproduction of the capital relation, but involved in the immediate
production process, directly productive of value? Would we have to understand
students themselves as, if not knowledge producers, an irreplaceable moment or
function within that process? None of this remains clear. The question is not
only a sociological one, it is also a political one. The strategy of
reconceptualizing students as workers is rooted in the classical Marxist
identification of revolt with the point of production, that is, exploitation.
To declare all social activity to be productive is another way of saying that
social war can be triggered at any site within society, even among the
precarious, the unemployed, and students.
_Knowledge is tied to struggle. To truly know is to hate truly. This is why
the working class can know and possess everything of capital, as it is enemy
to itself as capital._
—Tronti, 1966
That form of “hate” mentioned by Tronti is suggesting something interesting
form of political passion and a new modus operandi. The relation between hate
and knowledge, suggested by Tronti, is the opposite of the cynical detachment
of the new social figure of the entrepreneur-artist but it’s a joyful hate of
our condition. In order to educate ourselves we should hate our very own
environment and social network in which we were educated—the university. The
position of the artist in their work and the performance of themselves (often
no different) can take are manyfold. There are histories for all of these
postures that can be referenced and adopted. They are all acceptable tactics
as long as we keep doing and churning out more. But where does this get us,
both within the confines of the arts and the larger social structure? We are
taught that the artist is always working, thinking, observing. We have learned
the tricks of communication, performance and adaptability. We can go anywhere,
react to anything, respond in a thoughtful and creative way to all problems.
And we do this because while there is opportunity, we should take it. “We
shouldn’t complain, others have it much worse.” But it doesn’t mean that we
shouldn’t imagine something else. To begin thinking this way, it means a
refusal to deliver an event, to perform on demand. Maybe we need a kind of
inflexibility, of obstruction, of non-conductivity. After all, what exactly
are we producing and performing for? Can we try to think about these talents
of performance, of communication? If so, could this be the basis for an
intimacy, a friendship… another institution?
## Alternative pedagogical models
Let’s consider briefly the desire for “new pedagogical models” and “new forms
of knowledge production”. When articulated by the University, this simply
means new forms of instruction and new forms of research. Liberal faculty and
neoliberal politicians or administrators find themselves joined in this hunt
for future models and forms. On the one hand, faculty imagines that these new
techniques can provide space for continuing the good. On the other hand,
investors, politicians, and administrators look for any means to make the
University profitable; use unpaid labour, eliminate non-productive physical
spaces, and create new markets. Symptomatically, there is very little
resistance to this search for new forms and new models for the simple reason
that there is a consensus that the University should and will continue.
It’s also important to note that many of the so-called new forms and new
models being considered lie beyond the walls and payroll of the institution,
therefore both low-cost and low-risk. It is now a familiar story: the
institution attempts to renew itself by importing its own critique. The Public
School is not a new model and it’s not going to save the University. It is not
even a critique of the University any more or less than it is a critique of
the field of art or of capitalist society. It is not “the next university”
because it is a practice of leaving the University to the side. It would be a
mistake to think that this means isolation or total detachment.
Today, the forms of university governance cannot allow themselves to uproot
self-education. To the contrary, self-education constitutes a vital sap for
the survival of the institutional ruins, snatched up and rendered valuable in
the form of revenue. Governance is the trap, hasty and flexible, of the
common. Instead of countering us frontally, the enemy follows us. We must
immediately reject any weak interpretation of the theme of autonomous
institutions, according to which the institution is a self-governed structure
that lives between the folds of capitalism, without excessively bothering it.
The institutionalisation of self-education doesn’t mean being recognized as
one actor among many within the education market, but the capacity to organize
living knowledge’s autonomy and resistance.
One of the most important “new pedagogical models” that emerged over the past
year in the struggles around the implosion of the “public” university are the
occupations that took place in the Fall of 2009. Unlike other forms of action,
which tend to follow the timetable and cadence of the administration, to the
point of mirroring it, these actions had their own temporality, their own
initiative, their own internal logic. They were not at all concerned with
saving a university that was already in ruins, but rather with creating a
space at the heart of the University within which something else, some future,
could be risked, elaborated, prefigured. Everything had to be improvised, from
moment to moment, and in these improvisations new knowledges were developed
and shared. This improvisation was demanded by the aleatory quality of the
types of relations that emerged within these spaces, relations no longer
regulated by the social alibis that assigns everyone her/his place. When
students occupy university buildings—here in California, in NYC, in Puerto
Rico, in Europe and the UK, everywhere—they do so not because they want to
save their universities. They do so because they know the university for what
it is, as something to be at once seized and abandoned. They know that they
can only rely on and learn from one another.
## The Common and The Public
What is really so disconcerting about this antinomy between the logic of the
common and the logic of the social or the public? For Jacotot, it means the
development of a communist politics that is neither reformist nor seditious2.
It proposes the formation of common spaces at a distance from—if not outside
of—the public sphere and its communicative reason: “whoever forsakes the
workings of the social machine has the opportunity to make the electrical
energy of the emancipation machine.”
What does it mean to forsake the social machine? That is the major political
question facing us today. Such a forsaking would require that our political
energies organize themselves around spaces of experimentation at a distance
not only from the university and what is likely its slow-motion, or sudden,
collapse, but also from an entire imaginary inherited from the workers
movement: the task of a future social emancipation and vectors and forms of
struggle such a task implies. Perhaps what is required is not to put off
equality for the future, but presuppose the common, to affirm that commons as
a fact, a given, which must nevertheless be verified, created, not by a social
body, not by a collective force, but a power of the common, now.
School is not University. Neither is it Academy or College or even Institute.
We are all familiar with the common meaning of the word: it is a place for
learning. In another sense, it also refers to organized education in general,
which is made most clear by the decision to leave, to “drop out of school”.
Alongside these two stable, almost architectural definitions, the word
gestures to composition and movement—the school of bodies, moving
independently, together; the school only exists as long as that collective
movement does. The school takes shape in this oscillation between form and
formlessness, not through the act of constructing a wall but by the process of
realizing its boundary through practice.
Perhaps this is a way to think of how to develop what Felix Guattari called
“the associative sector” in 1982: “everything that isn’t the state, or private
capital, or even cooperatives”3. At first gloss, the associative sector is
only a name for the remainder, the already outside; but, in the language of a
school, it is a constellation of relationships, affinities, new
subjectivities, and movements, flickering into existence through life and use,
An “engaged withdrawal” that simultaneously creates an exit and institutes in
the act of passing through. Which itself might bring us back to school, to the
Greek etymology of school, skhole, “a holding back”, a “keeping clear” of
space for reflective distance. On the one hand, perhaps this reflective space
simply allows theoretical knowledge to shape or affect performative action;
but on the other hand, the production of this “clearing” is not given,
certainly not now and certainly not by the institutions that claim to give it.
Reflective space is not the precondition for performative action. On the
contrary; performative action is the precondition for reflective space—or,
more appropriately, space and action must be coproduced.
Is the University even worth “saving”? We are right to respond with
indignation, or better, with an array of tactics—some procedural, some more
“direct”—against these incursions, which always seem to authorize themselves
by appeals to economic austerity, budget shortfalls, and tightened belts.
Perhaps what is being destroyed in this process is the very notion of the
public sphere itself, a notion that. It is easy to succumb to the illusion
that the only possible result of this destruction of the figure of the public
is privatization. But what if the figure of the public was to be set off
against not only the private and property relations, but against a figure of
the “common” as well? What if, in other words, the notion of the public has
always been an unstable, mediating term between privatization and
communization, and what if the withering of this mediation left these two
process openly at odds with each other? Perhaps, then, it is not simply a
question of saving a university and, more broadly, a public space that is
already withering away; maybe our energies and our intelligence, our
collective or common intellectual forces, should be devoted to organizing and
articulating just this sort of counter-transition, at a distance from the
public and the private.
## Authorship and new forms of knowledge
For decades we have spoken about the “death of the author”. The most sustained
critiques of authorship have been made from the spheres of art and education,
but not coincidentally, these spheres have the most invested in the notion.
Credit and accreditation are the mechanisms for attaching symbolic capital to
individuals via degrees and other lines on CVs. The curriculum vitæ is an
inverted credit report, evidence of underpaid work, kept orderly with an
expectation of some future return.
All of this work, this self-documentation, this fidelity between ourselves and
our papers, is for what, for whom? And what is the consequence of a world
where every person is armed with their vitæ, other than “the war of all
against all?” It’s that sensation that there are no teams but everyone has got
their own jersey.
The idea behind the project The Public School is to teach each other in a very
horizontal way. No curriculum, no hierarchy. But is The Public School able to
produce new knowledge and new content by itself? Can the The Public School
become a sort of autonomous collective author? Or, is The Public School just
about exchanges and social networking?
In the recent history of university struggles, some collectives started to
refresh the idea of coresearch; a form of knowledge that can produce new
subjectivities by researching. New subjectivities that produce new knowledge
and new knowledge that produces new subjectivities If knowledge comes only
from conflict, knowledge goes back to conflict in order to produce new
autonomy and subjectivities.
### The Public School
Sean Dockray, Matteo Pasquinelli, Jason Smith and Caleb Waldorf are founding
members of and collaborators at The Public School. Initiated in 2007 under
Telic Arts Exchange (literally in the basement) in Los Angeles, The Public
School is a school with no curriculum. At the moment, it operates as follows:
first, classes are proposed by the public; then, people have the opportunity
to sign up for the classes; finally, when enough people have expressed
interest, the school finds a teacher and offers the class to those who signed
up. The Public School is not accredited, it does not give out degrees, and it
has no affiliation with the public school system. It is a framework that
supports autodidactic activities, operating under the assumption that
everything is in everything. The Public School currently exists in Los
Angeles, New York, Berlin, Brussels, Helsinki, Philadelphia, Durham, San Juan,
and is still expanding.
I first spoke to the patient in the last week of that August. That evening the
sun was tender in drawing its shadows across the lines of his face. The eyes
gazed softly into a close middle distance, as if composing a line upon a
translucent page hung in the middle of the air, the hands tapping out a stanza
or two of music on legs covered by the brown folds of a towelling dressing
gown. He had the air of someone who had seen something of great amazement but
yet lacked the means to put it into language. As I got to know the patient
over the next few weeks I learned that this was not for the want of effort.
In his youth he had dabbled with the world-speak language Volapük, one
designed to do away with the incompatibility of tongues, to establish a
standard in which scientific intercourse might be conducted with maximum
efficiency and with minimal friction in movement between minds, laboratories
and publications. Latin biological names, the magnificent table of elements,
metric units of measurement, the nomenclature of celestial objects from clouds
to planets, anatomical parts and medical conditions all had their own systems
of naming beyond any specific tongue. This was an attempt to bring reason into
speech and record, but there were other means to do so when reality resisted
these early measures.
The dabbling, he reflected, had become a little more than that. He had
subscribed to journals in the language, he wrote letters to colleagues and
received them in return. A few words of world-speak remained readily on his
tongue, words that he spat out regularly into the yellow-wallpapered lounge of
the sanatorium with a disgust that was lugubriously palpable.
According to my records, and in piecing together the notes of previous
doctors, there was something else however, something more profound that the
language only hinted at. Just as the postal system did not require the
adoption of any language in particular but had its formats that integrated
them into addressee, address line, postal town and country, something that
organised the span of the earth, so there was a sense of the patient as having
sustained an encounter with a fundamental form of organisation that mapped out
his soul. More thrilling than the question of language indeed was that of the
system of organisation upon which linguistic symbols are inscribed. I present
for the reader’s contemplation some statements typical of those he seemed to
mull over.
“The index card system spoke to my soul. Suffice it to say that in its use I
enjoyed the highest form of spiritual pleasure, and organisational efficiency,
a profound flowering of intellect in which every thought moved between its
enunciation, evidence, reference and articulation in a mellifluous flow of
ideation and the gratification of curiosity.” This sense of the soul as a
roving enquiry moving across eras, across forms of knowledge and through the
serried landscapes of the vast planet and cosmos was returned to over and
over, a sense that an inexplicable force was within him yet always escaping
his touch.
“At every reference stood another reference, each more interesting than the
last. Each the apex of a pyramid of further reading, pregnant with the threat
of digression, each a thin high wire which, if not observed might lead the
author into the fall of error, a finding already found against and written
up.” He mentions too, a number of times, the way the furniture seemed to
assist his thoughts - the ease of reference implied by the way in which the
desk aligned with the text resting upon the pages of the off-print, journal,
newspaper, blueprint or book above which further drawers of cards stood ready
in their cabinet. All were integrated into the system. And yet, amidst these
frenetic recollections there was a note of mourning in his contemplative
moods, “The superposition of all planes of enquiry and of thought in one
system repels those for whom such harmonious speed is suspicious.” This
thought was delivered with a stare that was not exactly one of accusation, but
that lingered with the impression that there was a further statement to follow
it, and another, queued up ready to follow.
As I gained the trust of the patient, there was a sense in which he estimated
me as something of a junior collaborator, a clerk to his natural role as
manager. A lucky, if slightly doubtful, young man whom he might mentor into
efficiency and a state of full access to information. For his world, there was
not the corruption and tiredness of the old methods. Ideas moved faster in his
mind than they might now across the world. To possess a register of thoughts
covering a period of some years is to have an asset, the value of which is
almost incalculable. That it can answer any question respecting any thought
about which one has had an enquiry is but the smallest of its merits. More
important is the fact that it continually calls attention to matters requiring
such attention.
Much of his discourse was about the optimum means of arrangement of the
system, there was an art to laying out the cards. As the patient further
explained, to meet the objection that loose cards may easily be mislaid, cards
may be tabbed with numbers from one to ten. When arranged in the drawer, these
tabs proceed from left to right across the drawer and the absence of a single
card can thus easily be detected. The cards are further arranged between
coloured guide cards. As an alternative to tabbed cards, signal flags may be
used. Here, metal clips may be attached to the top end of the card and that
stand out like guides. For use of the system in relation to dates of the
month, the card is printed with the numbers 1 to 31 at the top. The metal clip
is placed as a signal to indicate the card is to receive attention on the
specified day. Within a large organisation a further card can be drawn up to
assign responsibility for processing that date’s cards. There were numerous
means of working the cards, special techniques for integrating them into any
type of research or organisation, means by which indexes operating on indexes
could open mines of information and expand the knowledge and capabilities of
mankind.
As he pressed me further, I began to experiment with such methods myself by
withdrawing data from the sanatorium’s records and transferring it to cards in
the night. The advantages of the system are overwhelming. Cards, cut to the
right mathematical degree of accuracy, arrayed readily in drawers, set in
cabinets of standard sizes that may be added to at ease, may be apportioned
out amongst any number of enquirers, all of whom may work on them
independently and simultaneously. The bound book, by contrast, may only be
used by one person at a time and that must stay upon a shelf itself referred
to by an index card system. I began to set up a structure of rows of mirrors
on chains and pulleys and a set of levered and hinged mechanical arms to allow
me to open the drawers and to privately consult my files from any location
within the sanatorium. The clarity of the image is however so far too much
effaced by the diffusion of light across the system.
It must further be borne in mind that a system thus capable of indefinite
expansion obviates the necessity for hampering a researcher with furniture or
appliances of a larger size than are immediately required. The continuous and
orderly sequence of the cards may be extended further into the domain of
furniture and to the conduct of business and daily life. Reasoning, reference
and the order of ideas emerging as they embrace and articulate a chaotic world
and then communicate amongst themselves turning the world in turn into
something resembling the process of thought in an endless process of
consulting, rephrasing, adding and sorting.
For the patient, ideas flowed like a force of life, oblivious to any unnatural
limitation. Thought became, with the proper use of the system, part of the
stream of life itself. Thought moved through the cards not simply at the
superficial level of the movement of fingers and the mechanical sliding and
bunching of cards, but at the most profound depths of the movement between
reality and our ideas of it. The organisational grace to be found in
arrangement, classification and indexing still stirred the remnants of his
nervous system until the last day.
There is now a need to readdress urban commons through the lens of the digital
commons, writes Dubravka Sekulic. The lessons to be drawn from the free
software community and its resistance to the enclosure of code will likely
prove particularly valuable where participation and regulation are concerned.
> Commons are a particular type of institutional arrangement for governing the
use and disposition of resources. Their salient characteristic, which defines
them in contradistinction to property, is that no single person has exclusive
control over the use and disposition of any particular resource. Instead,
resources governed by commons may be used or disposed of by anyone among some
(more or less defined) number of persons, under rules that may range from
"anything goes" to quite crisply articulated formal rules that are effectively
enforced.
> (Benkler 2003: 6)
The above definition of commons, from the seminal paper "The political economy
of commons" by Yochai Benkler, addresses any type of commons, whether analogue
or digital. In fact, the concept of commons entered the digital realm from
physical space in order to interpret the type of communities, relationships
and production that started to appear with the development of the free as
opposed to the proprietary. Peter Linebaugh charted in his excellent book
_Magna Carta Manifesto_ , how the creation and development of the concept of
commons were closely connected to constantly changing relationships of people
and communities to the physical space. Here, I argue that the concept was
enriched when it was implemented in the digital field. Readdressing urban
space through the lens of digital commons can enable another imagination and
knowledge to appear around urban commons.
[](http://www.derive.at/)The
notion of commons in (urban) space is often complicated by archaic models of
organization and management - "the pasture we knew how to share". There is a
tendency to give the impression that the solution is in reverting to the past
models. In the realm of digital though, there is no "pasture" from the Middle
Ages to fall back on. Digital commons had to start from scratch and define its
own protocols of production and reproduction (caring and sharing). Therefore,
the digital commons and free software community can be the one to turn to, not
only for inspiration and advice, but also as a partner when addressing
questions of urban commons. Or, as Marcell Mars would put it "if we could
start again with (regulating and defining) land, knowing what we know now
about digital networks, we could come up with something much better and
appropriate for today's world. That property wouldn't be private, maybe not
even property, but something else. Only then can we say we have learned
something from the digital" (2013).
## Enclosure as the trigger for action
The moment we turn to commons in relation to (urban) space is the moment in
which the pressure to privatize public space and to commodify every aspect of
urban life has become so strong that it can be argued that it mirrors a moment
in which Magna Carta Libertatum was introduced to protect the basic
reproduction of life for those whose sustenance was connected to the common
pastures and forests of England in the thirteenth century. At the end of the
twentieth century, urban space became the ultimate commodity, and increasing
privatization not only endangered the reproduction of everyday life in the
city; the rent extraction through privatized public space and housing
endangered bare life itself. Additionally, the cities' continuous
privatization of its amenities transformed almost every action in the city, no
matter how mundane - as for example, drinking a glass of water from a tap -,
into an action that creates profit for some private entity and extracts it
from the community. Thus every activity became labour, which a citizen-worker
is not only alienated from, but also unaware of. David Harvey's statement
about the city replacing the factory as a site of class war seems to be not
only an apt description of the condition of life in the city, but also a cry
for action.
When Richard Stallman turned to the foundational gesture of the creation of
free software, GNU/GPL (General Public Licence) was his reaction to the
artificially imposed logic of scarcity on the world of code - and the
increasing and systematic enclosure that took place in the late 1970s and
1980s as "a tidal wave of commercialization transformed software from a
technical object into a commodity, to be bought and sold on the open market
under the alleged protection of intellectual property law" (Coleman 2012:
138). Stallman, who worked as a researcher at MIT's Artificial Intelligence
Laboratory, detected how "[m]any programmers are unhappy about the
commercialization of system software. It may enable them to make more money,
but it requires them to feel in conflict with other programmers in general
rather than feel as comrades. The fundamental act of friendship among
programmers is the sharing of programs; marketing arrangements now typically
used essentially forbid programmers to treat others as friends. The purchaser
of software must choose between friendship and obeying the law. Naturally,
many decide that friendship is more important. But those who believe in law
often do not feel at ease with either choice. They become cynical and think
that programming is just a way of making money" (Stallman 2002: 32).
In the period between 1980 and 1984, "one man [Stallman] envisioned a crusade
to change the situation" (Moglen 1999). Stallman understood that in order to
subvert the system, he would have to intervene in the protocols that regulate
the conditions under which the code is produced, and not the code itself;
although he did contribute some of the best lines of code into the compiler
and text editor - the foundational infrastructure for any development. The
gesture that enabled the creation of a free software community that yielded
the complex field of digital commons was not a perfect line of code. The
creation of GNU General Public License (GPL) was a legal hack to counteract
the imposing of intellectual property law on code. At that time, the only
license available for programmers wanting to keep the code free was public
domain, which gave no protection against the code being appropriated and
closed. GPL enabled free codes to become self-perpetuating. Everything built
using a free code had to be made available under the same condition, in order
to secure the freedom for programmers to continue sharing and not breaking the
law. "By working on and using GNU rather than proprietary programs, we can be
hospitable to everyone and obey the law. In addition, GNU serves as an example
to inspire and as a banner to rally others to join in sharing. This can give
us a feeling of harmony, which is impossible if we use software, which is not
free. For about half the programmers I talk to, this is an important happiness
that money cannot replace" (Stallman 2002: 33).
Architects and planners as well as environmental designers have for too long
believed the opposite, that a good enough design can subvert the logic of
enclosure that dominates the production and reproduction of space; that a good
enough design can keep space open and public by the sheer strength of spatial
intervention. Stallman rightfully understands that no design is strong enough
to keep private ownership from claiming what it believes belongs to it.
Digital and urban commons, despite operating in completely different realms
and economies, are under attack from the same threat of "market processes"
that "crucially depend upon the individual monopoly of capitalists (of all
sorts) over ownership of the means of production, including finance and land.
All rent, recall, is a return to the monopoly power of private ownership of
some crucial asset, such as land or a patent. The monopoly power of private
property is therefore both the beginning-point and the end-point of all
capitalist activity" (Harvey 2012: 100). Stallman envisioned a bleak future
(2003: 26-28) but found a way to "relate the means to the ends". He understood
that the emancipatory task of a struggle "is not only what has to be done, but
also how it will be done and who will do it" (Stavrides & De Angelis: 7).
Thus, to produce the necessary requirements - both for a community to emerge,
but also for the basis of future protocols - tools and methodologies are
needed for the community to create both free software and itself.
## Renegotiating (undoing) property, hacking the law, creating community
Property, as an instrument of allocation of resources, is a right that is
negotiated within society and by society and not written in stone or given as
such. The digital, more than any other field, discloses property as being
inappropriate for contemporary relationships between production and
reproduction and, additionally, proves how it is possible to fundamentally
rethink it. The digital offers this possibility as it is non-material, non-
rival and non-exclusive (Meretz 2013), unlike anything in the physical world.
And Elinor Ostrom's lifelong empirical researches give ground to the belief
that eschewing property, being the sole instrument of allocation, can work as
a tool of management even for rival, excludable goods.
The value of information in digital form is not flat, but property is not the
way to protect that value, as the music industry realized during the course of
the last ten years. Once the copy is _out there_ , the cost of protecting its
exclusivity on the grounds of property becomes too high in relation to the
potential value to be extracted. For example, the value is extracted from
information through controlling the moment of its release and not through
subsequent exploitation. Stallman decided to tackle the imposition of the
concept of property on computer code (and by extension to the digital realm as
a whole) by articulating it in another field: just as property is the product
of constant negotiations within a society, so are legal regulations. After
some time, he was joined by "[m]any free software developers [who] do not
consider intellectual property instruments as the pivotal stimulus for a
marketplace of ideas and knowledge. Instead, they see them as a form of
restriction so fundamental (or poorly executed) that they need to be
counteracted through alternative legal agreements that treat knowledge,
inventions, and other creative expressions not as property but rather as
speech to be freely shared, circulated, and modified" (Coleman 2012: 26).
The digital sphere can give a valid example of how renegotiating regulation
can transform a resource from scarce to abundant. When the change from
analogue signal to packet switching begun to take effect, the distribution of
finite territory and the way the radio frequency spectrum was managed got
renegotiated and the amount of slots of space to be allocated grew by an order
of magnitude while the absolute size of the spectrum stayed the same. This
shift enabled Brecht's dream of a two-sided radio to become reality, thus
enabling what he had suggested: "change this apparatus over from distribution
to communication".1
According to Lawrence Lessig, what regulates behavior in cyberspace is an
interdependence of four constraints: market, law, architecture and norms
(Lessig 2012: 121-25). Analogously, space can be put in place of cyberspace,
as the regulation of space is the sum of these four constraints. These four
constraints are in a dynamic relationship in which the balance can be tilted
towards one, depending on how much each of these categories puts pressure on
the other three. Changes in any one reflect the regulation of the whole.
"Architecture" in Lessig's theory should be understood broadly as the "built
environment" that regulates behaviour in (cyber)space. In the last few decades
we have experienced the domination of the market reconfiguring the basis of
norms, law and architecture. In order to counteract this, the other three
constraints need to be re-negotiated. In digital space, this reconfiguration
happened by declaring the code - that is, the set of instructions written as
highly formalized text in a specific programming language to be executed
(usually) by the computer - to be considered as speech in front of the law,
and by hacking the law in order to disrupt the way that property relationships
are formed.
To put it simply, in order to create a change in dynamics between the
architecture, norms and the market, the law had to be addressed first. This is
not a novel procedure, "legal hacking is going on all the time, it is just
that politics is doing it under the veil of legality because they are the
parliament, they are Microsoft, which can hire a whole law firm to defend them
and find all the legal loopholes. Legal hacking is the norm actually" (Bailey
2013). When it comes to physical space, one of the most obvious examples of
the reconfiguration of regulations under the influence of the market is to
create legal provisions, norms and architecture to sustain the concept of
developing (and privatizing) public space through public-private partnerships.
The decision of the Italian parliament that the privatization of services
(specifically of water management) is legal and does not obstruct one's access
to water as a human right, is another example of a crude manipulation of the
law by the state in favour of the market. Unlike legal hacks by corporations
that aim to create a favourable legal climate for another round of
accumulation through dispossession, Stallman's hack tries to limit the impact
of the market and to create a space of freedom for the creation of a code and
of sharable knowledge, by questioning one of the central pillars of liberal
jurisprudence: (intellectual) property law.
Similarly, translated into physical space, one of the initiatives in Europe
that comes closest to creating a real existing urban commons, Teatro Valle
Occupato in Rome, is doing the same, "pushing the borders of legality of
private property" by legally hacking the institution of a foundation to "serve
a public, or common, purpose" and having "notarized [a] document registered
with the Italian state, that creates a precedent for other people to follow in
its way" (Bailey 2013). Sounds familiar to Stallman's hack as the fundamental
gesture by which community and the whole eco-system can be formed.
It is obvious that, in order to create and sustain that type of legal hack, it
is a necessity to have a certain level of awareness and knowledge of how
systems, both political and legal, work, i.e. to be politically literate.
"While in general", says Italian commons-activist and legal scholar Saki
Bailey, "we've become extremely lazy [when it comes to politics]. We've
started to become a kind of society of people who give up their responsibility
to participate by handing it over to some charismatic leaders, experts of [a]
different type" (2013). Free software hackers, in order to understand and take
part in a constant negotiation that takes place on a legal level between the
market that seeks to cloister the code and hackers who want to keep it free,
had to become literate in an arcane legal language. Gabriella Coleman notes in
_Coding Freedom_ that hacker forums sometimes tend to produce legal analysis
that is just as serious as one would expect to find in a law office. Like the
occupants of Teatro Valle, free software hackers understand the importance of
devoting time and energy to understand constraints and to find ways to
structurally divert them.
This type of knowledge is not shared and created in isolation, but in
socialization, in discussions in physical or cyber spaces (such as #irc chat
rooms, forums, mailing lists…), the same way free software hackers share their
knowledge about code. Through this process of socializing knowledge, "the
community is formed, developed, and reproduced through practices focused on
common space. To generalize this principle: the community is developed through
commoning, through acts and forms of organization oriented towards the
production of the common" (Stavrides 2012: 588). Thus forming a community is
another crucial element of the creation of digital commons, but even more
important are its development and resilience. The emerging community was not
given something to manage, it created something together, and together devised
rules of self-regulation and decision-making.
The prime example of this principle in the free software community is the
Debian Project, formed around the development of the Debian Linux
distribution. It is a volunteer organization consisting of around 3,000
developers that since its inception in 1993 has defined a set of basic
principles by which the project and its members conduct their affairs. This
includes the introduction of new people into the community, a process called
Debian Social Contract (DSC). A special part of the DSC defines the criteria
for "free software", thus regulating technical aspects of the project and also
technical relations with the rest of a free software community. The Debian
Constitution, another document created by the community so it can govern
itself, describes the organizational structure for formal decision-making
within the project.
Another example is Wikipedia, where the community that makes the online
encyclopedia also takes part in creating regulations, with some aspects
debated almost endlessly on forums. It is even possible to detect a loose
community of "Internet users" who took to the streets all over the world when
SOPA (Stop Online Piracy Act) and PIPA (Preventing Real Online Threats to
Economic Creativity and Theft of Intellectual Property Act) threatened to
enclose the Internet, as we know it; the proposed legislation was successfully
contested.
Free software projects that represent the core of the digital commons are most
of the time born of the initiative of individuals, but their growth and life
cycle depend on the fact that they get picked up by a community or generate
community around them that is allowed to take part in their regulation and in
decisions about which shape and forms the project will take in the future.
This is an important lesson to be transferred to the physical space in which
many projects fail because they do not get picked up by the intended
community, as the community is not offered a chance to partake in its creation
and, more importantly, its regulation.
## Building common infrastructure and institutions
"The expansion of intellectual property law" as the main vehicle of the trend
to enclose the code that leads to the act of the creation of free software
and, thus, digital commons, "is part and parcel of a broader neoliberal trend
to privatize what was once under public or under the state's aegis, such as
health provision, water delivery, and military services" (Coleman 2012: 16).
The structural fight headed by the GNU/GPL against the enclosure of code
"defines the contractual relationship 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" (Mars & Medak 2004). Thus digital commons "is
based on the _communication_ among _singularities_ and emerges through
collaborative social processes of production " (Negri & Hardt 2005: 204).
The most important lesson urban commons can take from its digital counterpart
is at the same time the most difficult one: how to make a structural hack in
the moment of the creation of an urban commons that will enable it to become
structurally self-perpetuating, thus creating fertile ground not only for a
singular spatialization of urban commons to appear, but to multiply and create
a whole new eco-system. Digital commons was the first field in which what
Negri and Hardt (2009: 3-21) called the "republic of property" was challenged.
Urban commons, in order to really emerge as a spatialization of a new type of
relationship, need to start undoing property as well in order to socially re-
appropriate the city. Or in the words of Stavros Stavrides "the most urgent
and promising task, which can oppose the dominant governance model, is the
reinvention of common space. The realm of the common emerges in a constant
confrontation with state-controlled 'authorized' public space. This is an
emergence full of contradictions, perhaps, quite difficult to predict, but
nevertheless necessary. Behind a multifarious demand for justice and dignity,
new roads to collective emancipation are tested and invented. And, as the
Zapatistas say, we can create these roads only while walking. But we have to
listen, to observe, and to feel the walking movement. Together" (Stavrides
2012: 594).
The big task for both digital and urban commons is "[b]uilding a core common
infrastructure [which] is a necessary precondition to allow us to transition
away from a society of passive consumers buying what a small number of
commercial producers are selling. It will allow us to develop into a society
in which all can speak to all, and in which anyone can become an active
participant in political, social and cultural discourse" (Benkler 2003: 9).
This core common infrastructure has to be porous enough to include people that
are not similar, to provide "a ground to build a public realm and give
opportunities for discussing and negotiating what is good for all, rather than
the idea of strengthening communities in their struggle to define their own
commons. Relating commons to groups of "similar" people bears the danger of
eventually creating closed communities. People may thus define themselves as
commoners by excluding others from their milieu, from their own privileged
commons." (Stavrides 2010). If learning carefully from digital commons, urban
commons need to be conceptualized on the basis of the public, with a self-
regulating community that is open for others to join. That socializes
knowledge and thus produces and reproduces the commons, creating a space for
political emancipation that is capable of judicial arguments for the
protection and extension of regulations that are counter-market oriented.
## References
Bailey, Saki (2013): Interview by Dubravka Sekulic and Alexander de Cuveland.
Benkler, Yochai (2003): "The political economy of commons". _Upgrade_ IV, no.
3, 6-9, [www.benkler.org/Upgrade-
Novatica%20Commons.pdf](http://www.benkler.org/Upgrade-
Novatica%20Commons.pdf).
Benkler, Yochai (2006): _The Wealth of Networks: How Social Production
Transforms Markets and Freedom_. New Haven: Yale University Press.
Brecht, Bertolt (2000): "The radio as a communications apparatus". In: _Brecht
on Film and Radio_ , edited by Marc Silberman. Methuen, 41-6.
Coleman, E. Gabriella (2012): _Coding Freedom: The Ethics and Aesthetics of
Hacking_. Princeton University Press / Kindle edition.
Hardt, Michael and Antonio Negri (2005): _Multitude: War and Democracy in the
Age of Empire_. Penguin Books.
Hardt, Michael and Antonio Negri (2011): _Commonwealth_. Belknap Press of
Harvard University Press.
Harvey, David (2012): The Art of Rent. In: _Rebel Cities: From the Right to
the City to the Urban Revolution_ , 1st ed. Verso, 94-118.
Hill, Benjamin Mako (2012): Freedom for Users, Not for Software. In: Bollier,
David & Helfrich, Silke (Ed.): _The Wealth of the Commons: a World Beyond
Market and State_. Levellers Press / E-book.
Lessig, Lawrence (2012): _Code: Version 2.0_. Basic Books.
Linebaugh, Peter (2008): _The Magna Carta Manifesto: Liberties and Commons for
All_. University of California Press.
Mars, Marcell (2013): Interview by Dubravka Sekulic.
Mars, Marcell and Tomislav Medak (2004): "Both devil and gnu",
[www.desk.org:8080/ASU2/newsletter.Zarez.N5M.MedakRomicTXT.EnGlish](http://www.desk.org:8080/ASU2/newsletter.Zarez.N5M.MedakRomicTXT.EnGlish).
Martin, Reinhold (2013): "Public and common(s): Places: Design observer",
[placesjournal.org/article/public-and-
commons](https://placesjournal.org/article/public-and-commons).
Meretz, Stefan (2010): "Commons in a taxonomy of goods", [keimform.de/2010
/commons-in-a-taxonomy-of-goods](http://keimform.de/2010/commons-in-a
-taxonomy-of-goods/).
Moglen, Eben (1999): "Anarchism triumphant: Free software and the death of
copyright", First Monday,
[firstmonday.org/ojs/index.php/fm/article/view/684/594](http://firstmonday.org/ojs/index.php/fm/article/view/684/594).
Stallman, Richard and Joshua Gay (2002): _Free Software, Free Society:
Selected Essays of Richard M. Stallman_. GNU Press.
Stallman, Richard and Joshua Gay (2003): "The Right to Read". _Upgrade_ IV,
no. 3, 26-8.
Stavrides, Stavros (2013): "Contested urban rhythms: From the industrial city
to the post-industrial urban archipelago". _The Sociological Review_ 61,
34-50.
Stavrides, Stavros, and Massimo De Angelis (2010): "On the commons: A public
interview with Massimo De Angelis and Stavros Stavrides". _e-flux_ 17, 1-17,
[www.e-flux.com/journal/on-the-commons-a-public-interview-with-massimo-de-
angelis-and-stavros-stavrides/](http://www.e-flux.com/journal/on-the-commons-a
-public-interview-with-massimo-de-angelis-and-stavros-stavrides/).
1
"[...] radio is one-sided when it should be two-. It is purely an apparatus
for distribution, for mere sharing out. So here is a positive suggestion:
change this apparatus over from distribution to communication". See "The radio
as a communications apparatus", Brecht 2000.
Published 4 November 2015
Original in English
First published by derive 61 (2015)