Reviewer:

1) Is the subject matter relevant?

Yes, the article draws links between system architectures and legal instruments that are central to conversations around how copyright law may be disrupted.

2) Is the treatment of the subject matter intellectually interesting? Are there citations of bodies of literature you think are essential to which the author has not referred?

Yes, interesting subject matter with some useful examples and case studies. It might be useful to refer to Lessig’s ‘Code’ to provide a more nuanced context for the role of law in the regulatory framework. As it stands, the author makes a fairly direct link between technical possibility and legal structures that are not totally sustainable.

3) Are there any noticeable problems with the author’s mean of validating assumptions or making judgments?

See (2) above. Whilst the legal difficulties of engaging with peer-to-peer systems are well articulated, the author suggests that technical constraints need, in themselves, drive legal developments. Whilst there is clearly a technical dimension in regulatory practice, it is not the only consideration – and other areas (see Lessig for example) need to be taken into account in these discourses. This is reflected in a tone which suggests that because a law is currently unenforceable, it should not exist – a theme which has many counter-examples, as laws can shape behaviours without necessarily being enforced. Again, a more nuanced context around regulatory approaches would be useful.

In addition, the author blurs peer-to-peer production with peer-to-peer distribution, when the two practices are quite distinct and should be treated as such.  The article’s conversation around collective rights is interesting and valuable, but the difference between the possible types of p2p network activities is not really explored beyond a claim that users are largely ignorant of the networks usage. There is, however, an argument around individual intent within a p2p network that is not addressed.

4) Is the article well written?

Yes, the article is well written.

5) Are there portions of the article that you recommend to be shortened, excised or expanded?

See above. There are areas that should be more fully addressed to properly situate the role of law in the complexity of regulating technical networks. The conclusion could also be extended to better synthesise and draw together the threads of the arguments.

Reviewer:

1) Is the subject matter relevant?

Yes.

It refers to the general but pertinent problem of law’s lagging behind the technological development. However it approaches the question, from a new, interesting perspective, which focuses on ‘challenging liberal legalism design grounded around individualism’ and on introduction of the category of the commons as a potential new collective subject of law.

2) Is the treatment of the subject matter intellectually interesting? Are there citations of bodies of literature you think are essential to which the author has not referred?

In general, I find the manuscript interesting and original. It displays a good understanding of the described problem. Especially the first part, in which the author describes the specificities of the newest technological developments and their problematic relationship with the current legal regime proves well researched, interesting and (still) concise.

Nevertheless the second part of the article seems a little bit under developed. I think it is not enough just to list some examples of the collective thinking in law, in my opinion it would be useful to get into more details and see whether there are some useful analogies.

I think it would be interesting and useful to refer to some additional sources, especially with regards to the conclusion developed by the author, according to which: ‘there is a need for cultural change from neoliberal paradigm to recognise community rights and duties and collective persons as opposed to individual persons’. The author might find it interesting to refer to the following works:

I. The commons and the law plot:

1. The debate between professors Antonio Negri and Gunther Teubner titled

The Law of the Common: Globalization, property and new horizons of liberation.’ which took place on 10 March 2011 at the International University College of Turin, and was subsequently published in Finnish Yearbook of International Law (Vol. 21, 2010) 

2. M Fuster Morell, ‘The Free Culture and 15M Movements in Spain’ (2012) Composition, Social Networks and Synergies, Social Movement Studies: Journal of Social, Cultural and Political Protest 1–7.

3. Saki Bailey and Ugo Mattei, ‘Social Movements as Constituent Power: The Italian Struggle for the Commons’ (Spring 2013) 20 Ind J Global Leg Stud 965 (2013).

4. Balakrishnan Rajagopal, International Law from Below. Development, Social Movements and Third World Resistance, Cambridge University Press 2003, esp. Chapter 8 “Recoding resistance: social movements and the challenge to international law”.

 5. Bessa Adriana, Traditional local communities in international law (unpublished EUI PhD thesis), where the author develops a definition of local community, a parallel concept to the commons within the regime of international law that might be referred to/applied by analogy.

6. Carol M. Rose, ‘The Comedy of the Commons: Commerce, Custom and Inherently Public Property’ (1986). Faculty Scholarship Series. Paper 1828. http://digitalcommons.law.yale.edu/fss_papers/1828

II. The western legal systems focused on individual rights plot

The author’s starting point is that the current ineffectiveness of legal regulation in the rapidly changing technological reality could be traced back to the very nature of Western legal systems that “tend to mostly recognise rights only to individuals”.

Such a phrasing, in my opinion, requires introducing at least some level of comparative approach, which would show how the question of individual/ collective is dealt with in non-western legal orders. Otherwise reader is left disappointed as the initial phrasing promises some alternatives, which however are not presented in the text.

See e.g.:

Lee Godden and Mauren Tehan Translating native Title to Individual ‘Title’ in Australia: Are Real Property Forms and Indigenous Interests Reconcilable? in: Elizabeth Cooke (ed.), Modern Studies in Property Law: Volume 4. (Book 4) Hart Publishing (2007).

M.A. Stephenson, Individual Title versus Collective Title in Australia: Reflections on the North American and New Zealand Experiences of Indigenous Title to Land in: Elizabeth Cooke (ed.), Modern Studies in Property Law: Volume 4. (Book 4) Hart Publishing (2007).

Michael Diamond, Shared Equity Housing: Cultural Understanding and the Meaning of Ownership Chapter 3. in: Robin Paul Malloy and Michael Diamond, The Public Nature of Private Property (Ashgate, 2011). (where the authors show that legal regulations are not culturally neutral, hence understanding of property rights differs between the representatives of different cultures).

Nestor M. Davidson and Rashmi Dyal-Chand, Crisis and the Public-Private Divide in Property, Chapter 4 in: Robin Paul Malloy and Michael Diamond, The Public Nature of Private Property (Ashgate, 2011).(where the authors explain that legal regulations are not neutral, hence understanding of property rights differs between the representatives of different cultures).

David Fagundes, Explainng the Persistent Myth of Property Absolutism, Chapter 2 in: Robin Paul Malloy and Michael Diamond, The Public Nature of Private Property (Ashgate, 2011). (where the author explains that legal regulations are not neutral, hence understanding of property rights differs between the representatives of different cultures).

Peter Mathiessen, Indian Country p.118. (Penguin 1994) (“When we speak of land, we are not speaking of property, territory or even a piece of ground upon which our houses sit and our crops are grown, we are speaking of something truly sacred.”) (quoting Jimmie Durham, Eastern Band of Cherokees).

III. Teubner’s societal constiutionalism

See: e.g.: Gunther Teubner, ‘Altera Pars Audiatur: Law in the Collision of Discourses’ in: Richard Rawlings (ed.) Law, Society and Economy, Oxford University Press 1997;

Andreas Fischer-Lescano and Gunther Teubner, ‘Regime -collisions: The vain search for legal unity in the fragmentation of global law’ in: Michigan Journal of International Law [Vol. 25:999, Summer 2004];

Gunther Teubner, ‘Societal Constitutionalism: Alternatives to State-Centered Constitutional Theory?’ in: CONSTITUTIONALISM AND TRANSNATIONAL GOVERNANCE, Christian Joerges, Inge-Johanne Sand and Gunther Teubner, eds., Oxford Press, pp. 3-28, 2004;

Gunther Teubner, Constitutional Fragments. Societal Constitutionalism and Globalization, Oxford University Press, 2012.

IV. Metaphors in law plot

Stefan Larsson, Metaphors, law and digital phenomena: the Swedish pirate bay case. International Journal of Law and Information Technology, Vol. 21, No. 4 (2013), pp. 354–379.

V. Other

In the attached pdf version of the manuscript I have made some comments referring to particular fragments in the text where I suggest adding reference to more sources.

3) Are there any noticeable problems with the author’s mean of validating assumptions or making judgements?

The structure is coherent and logical, however sometimes sentences are unnecessarily long, what impedes understanding of the content.

4) Is the article well written?

Generally yes, however it needs language correction. Not being a native speaker I could not have corrected language mistakes, however in some situations where the mistakes were evident I highlighted them in the pdf version of the manuscript.

5) Are there portions of the article that you recommend to be shortened, excised or expanded?

I am personally disappointed by the fact that the very promising argument introduced at the beginning of the article: distribution of the law itself has not been developed deeply enough (at least this is my feeling).

I would also suggest developing the part of the article in which the author focuses on different examples of ‘collective thinking in law’. I think it would be useful to explain in more detail some examples where this collective/commons approach has been used in order to see whether it could be applied analogically in the digital realm. I find especially interesting the plot of local communities that the author can find in the work by Adriana Bessa referred to above but also in the article by Mattei and Bailey also mentioned above.

Maybe it would be useful also to have a look at:

Naomi Klein, ‘Reclaiming the Commons’, New Left Review, May- June 2001.

See also the response to question 2 and notes in the pdf version of the text.