El legislador instituyente (de Rousseau) y las prácticas anti -copyright en internet, por Gary Hall
por Juan Pablo Anaya
“Another way to think about the issue of piracy is in relation to the legislator in Rousseau’s The Social Contract. Here, too, we can never know whether the legislator—the founder of a new law or institution, such as a university, or indeed new way of being and doing as a theorist or philosopher—is legitimate or a charlatan. The reason for this is the aporia that lies at the heart of authority, whereby the legislator already has to possess the authority the founding of the new institution is supposed to provide him or her with in order to be able to found it. Certain so-called Internet pirates are in a similar situation to Rousseau’s legislator. They too may be involved in performatively inventing, trialing, and testing the very new laws and institutions by which their activities may then be judged and justified. As such, they can claim legitimacy only from themselves. This is a state of affairs that as well as marking their impossibility also constitutes their founding power, their instituting force. It is here, between the possible and the impossible, legality and illegality, that we must begin any assessment or judgment of them. And it should be noted that it is not just the potential pirates who may be legislators or charlatans. The current laws and institutions by which we might condemn Internet piracy as illegal are based on the same aporetic structure of authority. Such lawmakers are always also undecidably charlatans or pirates too (or hackers, in the case of Murdoch’s News International—now News UK).
Consequently, we cannot tell what will happen with pirate philosophy. It may lead to new forms of culture, economy, and education more in tune with the change in political mood post-2008: where people work and create for reasons other than to get paid; where the protection of copyright is no longer possible; where the cultural industries—book pub- lishers, the press, and so forth—are radically reconfigured; music, television, and film are available to freely stream, download, and share (which is already the case); academic monographs are circulated using text-sharing platforms (which they already are); and even our concepts of the unified, sovereign, proprietorial subject and individualized humanist author (on which, as chapter 1 shows, the Creative Commons, open access, and free software movements all depend) are dramatically transformed. In this respect, pirate philosophy may play a part in the development of not just a new kind of university, but new laws, new economies, and new ways of organizing postindustrial society. In the process, it may have as profound an effect “as the establishment of copyright … in the eighteenth century, and the development of modern patent systems in the nineteenth,” to borrow Johns’s words. But it may not. And that is the point. As with the famous remark about the significance of the French Revolution—let alone the “crisis of capitalism” and the “global springs”—it is still too early to tell. Nevertheless, what is interesting is the potential that pirate philosophy contains for the development of a new kind of economy and society: one based far less on individualism, possession, acquisition, accumulation, competition, celebrity, and ideas of knowledge, research, and thought as something to be owned, commodified, communicated, disseminated, and exchanged as the property of single, indivisible authors (who, as Andrew Ross notes, are often likely to be corporate entities).”
Hary Hall, Pirate Philosophy, pág. 141