Angela Daly

Like many, I am sad to see the end of the Journal of Peer Production project. One of only a few free and open journals which publish truly interdisciplinary, forward thinking and non-traditional academic pieces, and which has always been ahead of its time and true to its principles, JoPP’s finalisation will leave a gap in the activist-academic ecosystem.

I’ve been a member of JoPP’s editorial board for some years, contributed a few articles (Daly, 2013; Moilanen et al., 2015) and essays (Daly, 2019) of my own to various editions, but my most substantial role has been co-editing the sixth issue of JoPP on Disruption and the Law with Steve Collins of Macquarie University published in early 2015. As part of this last issue of JoPP, I want to share some reflections on that issue and its themes, as well as on developments and continuities and on my approach and thinking about disruption and the law in the intervening seven years. (In a stereo/typically lawyerly way, at the outset I want to affirm that this essay represents my own views and not – necessarily – the views of my co-editor Steve or those of the contributing article authors.)

Disruption(s) and the Law

The special issue’s theme was ‘disruption and the law’ where we aimed to discuss the ‘disruptive’ impact of peer production and digital technologies on the law. We largely viewed ‘disruption’ from a technological perspective in this special issue, but that may have been too technocentric. In the intervening years, I have expanded my own views of what disruption is, or what are relevant disruptions for the law (and peer production), with technology being just one such element.

There were huge disruptions to the global financial system in 2008-2009 whose effects are still being felt in various parts of the world, and which have influenced political movements and currents which have, in turn, had an effect on technology and its uses, including in peer production – a topic I will come to later in this essay. The financial crisis did call into question conventional western neoliberal capitalism as being a good, correct or reliable economic system even among those who previously supported it, and it opened up more imaginaries, if not actualities, for other forms of social and economic organisation.

Another disruption is climate change. We are increasingly seeing climate change-related disruptions to our ways of life throughout the world, and these disruptions are affecting law and technology. While digital technologies and peer production can promote sustainable practices, the very digital technologies which facilitate contemporary and seemingly emancipatory peer production have environmental and sustainability costs of their own in terms of the digital and physical infrastructures they require (Robra, Heikkurinen and Nesterova, 2020), along with the other limitations in terms of inequalities, power concentrations and hierarchies that characterise some peer production initiatives in practice (Kostakis, Vragoteris and Acharja, 2021).

At the time of writing, we are living through another enormous disruption in the form of the COVID-19 pandemic which is having profound and ongoing effects on all aspects of our lives in all the countries of the world. Disruptions to global supply chains have led to increasing ‘onshoring’ including through peer production-friendly techniques such as 3D printing/additive manufacturing, especially to produce essential supplies and equipment for tackling the pandemic (Mahr and Dickel, 2020). The role of intellectual property (IP) as a barrier to this peer production, especially producing and accessing COVID-19 vaccines and medical equipment, has become a mainstream political topic (McMahon, 2021). The extent to which this pivot to peer production and questioning of conventional proprietary IP norms prevails over conventional proprietary IP in the COVID context remains to be seen, as does whether it can be sustained in a post-COVID context.

Large technology companies have also weathered the pandemic well, so even if peer production has increased, this may be offset by further centralisations of power in the digital context. Nevertheless, as Dartnell and Kish (2021) put it:

the consumption and production changes seen during the coronavirus pandemic have at least strengthened the prefigurative politic of P2P. Whether this growth is sustained is still to be seen.

Another disruption perhaps more directly related to technology since the publication of our special issue has been the continued rise of China as a global and technological power, and the move to a more multipolar global order (Thussu, 2018). While peer production exists in China, it can take different forms to the peer production which has generally been present in, or studied from, the North/West (Shea and Gu, 2018). We acknowledged that the special issue was still largely Western-centric, the exceptions being Crowdy (2015) and Dulong de Rosnay’s (2015) contributions, and that further research was needed in this area, including whether the notion of peer production itself is at all disruptive in non-Western contexts. This still remains a topic which is under-studied, especially in the context of law’s relationship with peer production.

However, it may also be wrong to characterise these phenomena as disruptions. The idea that technology is inherently disruptive to the law, and thus that the law is always playing catch-up to technology, prevails in many quarters of legal literature. This is a rather techno-determinist perspective: laws applicable to (digital) technologies, and those technologies themselves, have been developed in a deregulated neoliberal context, especially during the 1990s and 2000s (Daly, 2016). While there is a current pivot to regulation of such technologies, this regulation largely preserves capitalist assumptions in how technology and data is made, used and circulated (Daly, 2021).

The other aforementioned ‘disruptions’ might also be laid at the door of capitalism and Western-/eurocentrism (see e.g. Schindler and Silver, 2019) and the ways in which this North/West approach to law (see e.g. Koskenniemi, 2011) and other areas has obscured these phenomena until they have become impossible to ignore and therefore become ‘disruptions’. Perhaps pandemics emanating from capitalist practices are the closest to a genuine ‘disruption’ of the lot. But they have been occurring for some time already, with more predicted prior to COVID-19 (Davis, 2020) – so again COVID-19 may only be characterised as a disruption in the myopic eyes of those who happened not to heed these warnings.

I acknowledge that I myself have been myopic in my understanding of ‘disruption’ by not considering all of these factors (financial crises, geopolitical multipolarity, climate change, pandemics) in my thinking about peer production and law – or at least until after this special issue was released and I realised that these factors altogether cannot be ignored by a coherent and holistic intellectual analysis of peer production and law. Furthering this analysis will be crucial to future work on peer production and law – although (sadly) work that will have to be done and be published in other platforms and outlets.

Revisiting de/centralisation, 3D printing, and the dark side of peer production

Here I discuss a few themes that characterised the special issue, and I offer some reflections on the trajectories of these topics in the intervening years.

Many of the special issue articles discussed dynamics of decentralisation and distribution via peer production and digital technologies. Re/centralisation and decentralisation in digital technologies, with the resulting space for peer production and its appropriation by large corporations, remains an important topic for law and peer production discussions (see e.g. O’Neil et al., 2021), which De Filippi and Tréguer (2015) discussed in relation to wireless community networks, mainly in Europe. Since 2015, we have witnessed the rise of other forms of decentralised infrastructures for energy peer production such as community energy networks facilitated by digital data, and the misfit with traditional energy regulation frameworks which presume a centralised production model (van Soest, 2018; Tushar et al., 2021).

However, we also see more appropriation of peer production in recentralising dynamics, such as by large digital platforms, whether it be YouTube and creative content, or Uber and driving as work. This appropriation was already occurring at the time our special issue was published, as we saw in McGregor, Brown and Glöss’ (2015) essay on Uber, and has accelerated since then. This appropriation of peer production clearly restricts its emancipatory potential, and seems to be the more dominant tendency in practice, rather than a decentralised anti-capitalist one.

There are attempts to regulate large platforms and intermediaries, and these have also accelerated since the publication of this special issue worldwide. But few if any of these attempts consider the potential for law which will facilitate genuine peer production, let alone the more radical distribution of the law itself as Dulong de Rosnay (2015) suggested. The Marco Civil da Internet in Brazil is an exception: its formation involved a consultative online crowdsourced process to create legally enforceable principles for Internet governance in Brazil (Affonso Souza, Steibel and Lemos, 2017). Yet, radical imaginaries of distributed and peer produced law for a new, more equitable economy and society continue to emerge (e.g. Morgan and Thorpe, 2016), alongside the challenges to conventional western legal categories which continue to abound, including from new technologies like AI (Bennett and Daly, 2020).

A topic very close to my own academic heart is 3D printing. Three articles in the JoPP special issue on disruption and the law featured 3D printing (Fordyce, 2015; Moilanen et al., 2015; Record et al., 2015). While there are ample opportunities for peer production in 3D printing, 3D printing as a whole has not become very widespread in society (Birtchnell et al., 2018). Indeed, as mentioned above, 3D printing’s utility may only have manifested with the disruptions to global supply chains and centralised manufacturing brought about by the COVID-19 pandemic, and even then, it is far from being the dominant mode of production.

A theme that has gained in prominence since 2015 is the ‘dark side’ of peer production, as discussed in Fordyce’s contribution: 3D printing can give rise to radical right-wing imaginaries for white supremacists and anti-feminists. This links back to my earlier comment about disruptions felt in various parts of the world, including North/Western societies, in the aftermath of the 2008-2009 financial crisis. Since then, and in particular since the publication of our special issue, we have seen the rise of the radical right in various countries, such as Trump in the US, Bolsonaro in Brazil and the Brexit referendum and its fall-out in the UK. Many of these so-called ‘populist’ right wing movements and governments have mobilised non-traditional, distributed new media to build a following and organise politically (Schroeder, 2019). This demonstrates the limits of a progressive emancipatory discourse accompanying peer production via new digital technologies and suggests, as Fordyce foresaw, that they can be used by regressive right-wing forces as well as progressive ones.

Bitcoin and blockchain technologies are another case in point (Golumbia, 2015). We need to be careful about this dark side of peer production, by acknowledging that peer production does not automatically lead to emancipatory outcomes, and that the law should not unquestioningly support peer production of any sort, nor should the law be peer produced and distributed unless it is also promoting progressive goals. Indeed, both the process and the outcomes of peer production, and the law’s interactions with them, must be emancipatory.

Final reflections

In concluding, I consider the special issue to still be of much relevance some seven years’ after its publication, with themes and topics that still resonate in current discourses on peer production, law and other areas. Broadening our notions of disruption, and indeed questioning whether they are indeed disruptions at all, are important in progressing progressive discussions in peer production and law, along with acknowledging that regressive outcomes can occur from decentralised, distributed and, yes, even peer produced activities. From these reflections on law and disruption, I believe research into peer production should analyse more than just technology, and also examine the whole process of peer production and its outcomes and uses, in a similar way to the approach of beginning-to-end that we advocated in Good Data (Daly, Devitt and Mann, 2019). These future directions will unfortunately have to find academic homes elsewhere, but I am sure JoPP’s archives will continue to yield insights for future research, including in the discipline of Law.

References

Affonso Souza, C., Steibel, F., and Lemos, R. (2017) Notes on the creation and impacts of Brazil’s Internet Bill of Rights, The Theory and Practice of Legislation, 5 (1), pp. 73-94. doi: https://doi.org/10.1080/20508840.2016.1264677.

Bennett B. and Daly, A. (2020) Recognising rights for robots: Can we? Will we? Should we?, Law, Innovation and Technology, 12(1), pp. 60-80. doi: https://doi.org/10.1080/17579961.2020.1727063.

Birtchnell, T., Daly, A., Rayna, T. and Striukova, L. (2018) 3D Printing and Intellectual Property Futures. UK Intellectual Property Office Report. Available at: https://www.gov.uk/government/publications/3d-printing-and-intellectual-property-futures. (Accessed: 9 November 2021).

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