Sobre la «fuerza instituyente» en ciertas prácticas anti-copyright de la cultura digital, por Gary Hall
por Juan Pablo Anaya
“what is most interesting about certain phenomena associated with networked digital culture such as Napster, the Pirate Bay, Popcorn Time, Aaaaarg, and the unauthorized downloading from JSTOR’s database of the open access guerrilla Aaron Swartz, is that we cannot tell at the time of their initial appearance whether they are legitimate. This is because the new conditions created by networked digital culture, for example the ability to digitize and make freely available whole libraries worth of books (as is the case with Google Books and Aaaaarg), at times require the creation of equally new intellectual property laws and copyright policies. The 1998 Digital Millennium Copyright Act, 2001 European Union Copyright Directive, and the UK’s Digital Economies Act 2010 are some examples; the Google Book settlement, SOPA (Stop Online Piracy Act), and PIPA (Protect IP Act) in the United States are (or were) others. It follows that we can never be sure whether these so-called pirates, in the attempts they are making to contend with the new conditions and possibilities created by networked digital culture, to try them and put them to the test, are not infact involved in the creation of the very new laws, policies, clauses, settlements, licensing agreements, and acts of Congress and Parliament by which they could be judged.
Consider the case of William Fox, a filmmaker who relocated from America’s East Coast to California in the early twentieth century in part “to escape controls that patents granted the inventor of filmmaking, Thomas Edison.” As Lawrence Lessig recounts in his chapter on “pirates” in Free Culture, Fox founded the film studio 20th Century Fox precisely by pirating Edison’s creative property. 37 (Ironically, the chairman and CEO of 20th Century Fox’s owners, 21st Century Fox, is that scourge of Internet piracy Rupert Murdoch, who attacked the Obama administration on Twitter after the White House indicated it would not be supporting some of the harsher measures proposed in the SOPA bill.) 38 As the example of Fox shows, we can never tell the founder of a new institution or culture in advance. We can only finally judge whether the activities of such supposed pirates are legal or not, legitimate or not, just or not from some point “projected into an indefinite future.” This is why I am suggesting perhaps acting something like pirate philosophers: because a responsible ethical, as opposed to moralistic, approach to piracy would not presume to know what it is in advance.
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.”
Gary Hall, Pirate Philosophy