Editorial Notes: Playing catchup? How the law encounters disruptive peer production
The disruption caused by new technologies and non-conventional methods of organisation – from a Western perspective at least – have posed challenges for the law, confronting regulators with the need to balance justice and an appreciation of new realities with powerful interests and existing paradigms. Experience from the “disruptions” of the late twentieth century has shown that the response from incumbent industries can lead to a period of intense litigation and lobbying for laws that will maintain the status quo. For example, following its “Napster moment”, the music industry fought to maintain its grip on distribution channels through increased copyright enforcement and the longer copyright terms it managed to extract from the legislative process. The newspaper industry has similarly seen its historical revenue stream of classified ads disrupted by more efficient online listings, and responded to its own failure to capitalise on online advertising by launching legal campaigns against Google News in various European countries.
Though the law as it stands may not be well-equipped to deal with disruptive episodes, the technological innovations of the last twenty years have created an environment that generates disruption. The Internet, the Web and networked personal computers have converged into the ubiquitous post-PC media device, leaving twentieth century paradigms of production, consumption and distribution, particularly in the Western world, under considerable threat. The latest technology to be added to this group of disruptive innovations may be 3D printing, which in recent times has become increasingly available and accessible to users in developed economies, whilst the manufacturing capacity of 3D printers has dramatically grown. Although current offerings on the market are far from a Star Trek-like “replicator”, the spectre of disruption has once again arrived with the prospect of 3D printed guns inspiring a moral panic and raising questions of gun control, regulation, jurisdiction and effective control. In addition, 3D printing raises a number of issues regarding intellectual property, going far beyond the copyright problems that file-sharing brought about due to its production of physical objects.
It is against this backdrop that we present this special issue of the Journal of Peer Production, comprising six peer-reviewed papers and one discussion paper covering an array of diverse issues implicated by the emergence of new production and distribution technologies, associated peer practices and tensions with legal and de facto regulatory frameworks. We are pleased to present the work of authors from various disciplines, discussing developments in geographical regions as far apart as Canada, Europe and Papua New Guinea.
Our first two papers interrogate the theory of peer production and interaction with the law, especially entrenched Western legal concepts and imaginaries. New technologies, peer production and the blurring lines between producers and consumers have had significant and disruptive impacts in the creation, distribution and economy of music. Denis Crowdy argues that the Global North is where these impacts have been predominantly explored. Consequently, the impacts on cultural production in the Global South have been overlooked. Through the lens of ethnomusicology, Crowdy compares music practices in the Global North with those of the South, where notions of authorship, ownership and copyright become problematised. Melanie Dulong de Rosnay notes that the discourse surrounding peer-to-peer and law overwhelmingly focuses on the turbulent relationships between pirate activities (such as torrenting) and the entertainment industries as mediated by enforcement measures including copyright law. Intending to progress discussion of peer-to-peer beyond these tensions of copyright enforcement, Dulong de Rosnay proposes applying peer-to-peer practices and distributing the law itself – or at least opening the law up to recognising collective ownership over collaborative efforts – to prompt new relationships between law and technology.
Following on from Crowdy and Dulong de Rosnay’s problematising of the relationships between peer production and the law, Primavera de Filippi and Félix Tréguer provide practical examples of how new technologies fit into existing regulatory categories through examination of the perennial issues arising from the dichotomy of centralisation/decentralisation in telecommunications networks. The authors focus their attention on contemporary grassroots community networks (known as Wireless Community Networks), which they suggest offer a counterbalance to the erosion of Internet users’ autonomy as experienced under current telecommunications policies.
Moira McGregor, Barry Brown and Mareike Glöss’ discussion paper examines the app-based personal transport service, Uber. The authors conducted 32 participant interviews in order to unpack how Uber and similar services circumvent and undermine the regulatory frameworks in place to govern traditional taxi services and juxtapose their findings against social practices. This discussion paper suggests that whilst at first glance Uber offers many competitive advantages for customers and drivers alike, the company is the ultimate arbiter on prices. Where licensed taxi drivers are represented as part of the regulatory framework, Uber drivers enjoy no similar voice, and indeed Uber itself has internal rules which essentially constitute a private regulatory framework to govern the interactions between passengers and drivers.
The final three papers on the issue focus on various aspects of 3D printing, arguably poised as the next significant disruptive technology. Thingiverse is one of the internet’s primary repositories for 3D printing designs. Jarkko Moilanen, Angela Daly, Ramon Lobato and Darcy Allen examine how sharing and intellectual property are managed both vertically (with Makerbot, Thingiverse’s parent company) and horizontally (between Thingiverse users). While hacker and maker communities are usually characterised by a high degree of IP sharing, their results paint a more complex picture of the interactions in this peer production environment. The remaining two papers looks into the ‘darker’ implications arising from increasingly accessible 3D printers. Robbie Fordyce tackles the issues arising at the nexus of addictive manufacture, the political imaginary and Italian radical thought. He argues that the influence of additive manufacture on governance and political action may be of more consequence than the objects actually manufactured. Fordyce draws on ethnographic studies of online communities ‘Stormfront’ and ‘A Voice for Men’ and deploys Italian radical theorists such as Agamben, Tronti, Hage, Boltanski and Chiapello to explore the tensions between 3D printing and dissident political groups. The 3D printed Liberator gun addressed in the previous paper is also the focus of attention for Isaac Record, ginger coons, Daniel Southwick and Matt Ratto. The authors undertook to produce a non-functioning version of the Liberator and documented their experiences. Their paper analyses the disruptive implications of increasingly available 3D printing processes and suggests several possible resolutive actions available to regulators and regulation.
This special issue of the Journal of Peer Production advances the existing scholarship on peer production – particularly around its governance structures, interaction with existing laws and social norm creation – by identifying and mapping current trends, practices and issues, but also acts as a prompt for further research. Peer-linking and sharing services such as Uber and Thingiverse are developing private forms of social ordering and regulation that are frequently incompatible with established practices. The respective articles on Uber and Thingiverse in this edition demonstrate the private forms of ordering that have emerged from certain ‘disruptive’ peer to peer practices. This prompts a critical evaluation of the power relations among peers and any actor which mediates their interactions, and, accordingly, a critical appraisal of how the disruption of an existing ecosystem may not always be positive from the perspectives of equity, labour relations, etc.
Indeed, the context around each ‘disruption’ is key. Further non-Western perspectives may be a future avenue for more research on this topic, expanding upon Crowdy and Dulong de Rosnay’s papers in this edition. Is collectivism – or even the idea of peer production – an example of the ‘Emperor’s New Clothes’ from a Global South perspective? Also, how can existing North-South socio-economic divides be addressed by peer production and laws and regulations around it? Nevertheless, for Western contexts where peer production remains a ‘disruptive’ idea, another question arises as to how the legislative process, still essentially a top-down affair, can take on board peer production. Can the law and even the law-making process could be reconfigured to accommodate peer practices? Can the law be crowdsourced? Iceland’s attempt to inclusively and transparently draft a new constitution ultimately stalled, but California and New York have demonstrated some success in ‘crowdsourcing the law’ by allowing members of the public to comment on legislative drafts hosted on Wikis. While Dulong de Rosnay’s paper makes a brave start at attempting to reimage law, more inquiry is needed, possibly in the form of the potential of crowd-sourced laws at a more systemic level.
3D printing is the disruptive technology du jour with the potential to radically reformulate the business and shape of manufacturing practices. Just as the ‘Heavenly Jukebox’ emerged out of disruption and innovation in the music industry, 3D printers are touted to let us print what we want, when we want it – and at home! Yet in these nascent stages of widely accessible 3D printing such projections are somewhat hyperbolic and technologically deterministic. In this light, the actual progress of 3D printing as a social phenomenon will be another important topic for further research – along with an assessment of, for example the extent to which the current moral panic caused by 3D printed firearms is justified, and the strength of the challenge that 3D printing poses to existing intellectual property laws – in other words, the extent to which it is truly disruptive.
Looking forward from here – as ever more areas of life are disrupted by new technologies – cryptocurrencies would be another good example – as existing laws become more difficult to enforce or more inappropriate for the new reality, as incumbents push back against these changes, then it seems that ever more areas of the interaction between law, peer production and disruption will be ripe for further research.
Finally, we would like to thank the authors, reviewers, our copy editor Clare Shamier and the JoPP editorial board (especially Mathieu O’Neil) for their contributions to this issue – without their hard work/peer to peer production, this special edition of the Journal of Peer Production would not have come to fruition.
Angela Daly & Steve Collins