juridical in Mars & Medak 2019
oration of balance but rather in the
confirmation of entrenched interests. It is, however, not necessary
that courts act in such a one-sided manner. As Cornelia Vismann
(2011) reminds us in her analysis of the ancient roots of legal mediation, the juridical process has two facets: first, a theatrical aspect
that has common roots with the Greek dramatic theatre and its
social function as a translator of a matter of conflict into a case for
weighted juridical debate; second, an agonistic aspect not unlike a
sporting competition where a winner has to be decided, one that
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50
leads to judgment and sanction. In the matter of copyright versus
access, however, the fact that courts cannot look past the me
re unjust, a more commonised or a more commodified world.
Authorship, Law, and Legitimacy
Before we can talk of such structural transformation, the normative
question we expect to be asked is whether something that is considered a matter of law and juridical decision can be made a matter
of politics and political process. Let’s see.
Copyright has a fundamentally economic function—to unambiguously establish individualized property in the products of creative
labor. A clear indication of this economi
tion
When we talk today of illegal copying, we primarily mean an
infringement of the legal rights of authors and publishers. There’s an
immediate assumption that the infringing practice of illegal copying
and distribution falls under the domain of juridical sanction, that it is
a matter of law. Yet if we look to the history of copyright, the illegality
of copying was a political matter long before it became a legal one.
Publisher’s rights, author’s rights, and mechanisms of reputation—
the three
h politicization. Transitioning from politics to law was a social achievement
as the despotism of political will was suppressed by legal norms
guaranteeing rights and liberties for authors; this much is true. But
in the face of the draconian, failed juridical rationality sustaining
the schizoid impasse imposed by economic despotism, these developments hold little justification. Thus we return once more to the
words of Aaron Swartz to whom we remain indebted for political
inspiration and resolve: “There
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