Law in Contemporary Society


-- By MoAli - 22 Apr 2024

In Book 22 of Livy’s magisterial Roman history, “Ab Urbe Condita,” he recounts a curious interaction between Hannibal and Maharbal, his cavalry commander at Cannae. In the aftermath of this momentous Roman defeat in 216 BCE, the Carthaginian high command’s revelry and jubilation is interrupted by the indefatigable zeal of Maharbal, who beseeches his master to immediately march on Rome herself. “In five days you shall banquet in the Capitol!” But Hannibal respectfully demurs, preferring to husband his strength and deliberate with his lieutenants before taking so rash an action. “You know how to gain a victory, Hannibal: you know not how to use one,” is the memorable reply that Livy attributes to Maharbal, the rejection of whose plan “saved the City and the empire.”

“Anarchism Triumphant” was written in 1999, and despite its prescience regarding the unrelenting march of free software, like Maharbal’s exhortation to Hannibal it was a call to action delivered, perhaps fatally, a beat too soon. In the intervening quarter century since the copyleft prophesy, the battle lines of software governance have shifted from under the ground of her most ardent legionaries. While the ubiquity of commons-oriented software tools like GitHub? , Perl, GNU, Linux, and Apache have greatly reduced the proprietary castles that held computing in a rude sort of corporate bondage in decades past, today the old masters have developed new frameworks for domination and control. The rise of open core business models, of cloud computing services, and most of all, of the corporate proprietization of user data enabled by increasingly invasive surveillance capitalism has spawned new foes whose strong castle walls are diligently maintained by the likes of Google, Meta, Amazon, and others. The network effects of entrenched platforms, the inertia of legal systems, and the seductive whispers of walled gardens have undergirded a new digital sharecropping where a select few toil behind closed doors while the digital commoners, awash with copylefted tools dearly won by our forebears, remain destitute of soil to till. We are locked out of the latifundia of user data accumulated on us, and only permitted to experience these walled gardens we built as slaves.

Our triumph, therefore, cannot be one of storming a single Capitol. Indeed, the victory prophesied in “Anarchism Triumphant” is well on its way to fruition on its own terms. Yet the spirit of copyleft, of open collaboration and mutuality in the cybersphere, remains precarious and remote in this new context. It is in this spirit we must channel the creativity and courage of those who came before us, Stallman, Torvalds, Moglen, and others, who would dare rethink our relationship to the tools that connect us. To move on the works of the gatekeepers of the digital superhighways will require an audacious thinking that encourages, even mandates, freedom of information, freedom to tinker, and equality of access. This means reforging the copyleft sword to incorporate derivative works built on copylefted programs, to fragment the information monopolies by securing user stewardship of user data (ie. "right to be forgotten"), and to educate and organize communities maintaining their own digital free-cosystems. Perhaps it is too late for a movement like this to take root in this country just yet, but networked societies in India, Nigeria, and beyond may vanguard a new paradigm of connectivity, and reform the world along the way.

Our digital overlords may yet be put to rout. “We Have No Moat” was the latest triumph of open-source in the context of machine learning and it exposed another crack in the corporate edifice of proprietary software and sequestered data. Though like Maharbal and Moglen we may at times be too zealous too soon, our Rome is destined to decline and certainly fall under the weight of its internal contradictions. This time, I will not hesitate to be on hand with our terms.

I am too close tot he subject to be reliable, perhaps, but I would not have titled the volume of my memoirs about free software and related concerns "On Being Right Too Soon" if I weren't basically in agreement with your analysis. Stallman thought our vision was primarily about ethics. I thought it was primarily about politics. We were premature. Mostly it was about the political economy of software, about which we were entirely correct.

Yochai Benler's talk at our SFLC Conference in 2017 also resonates with your view in explaining the trajectory of the ideas against industry and proprietary pushback.

But you are also correct that the force of the idea of enablement is deep in the middle of the "AI" frenzy, as Yann and others make the "open source" form relevant, while the role of copyleft for publishers will soon be reevaluated because of the scraping disaster they now realize they have suffered.

I don't see any way to improve this. Rest on it until you too are being right too soon.

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r5 - 27 May 2024 - 19:14:22 - EbenMoglen
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