Coding Freedom: The Ethics and Aesthetics of Hacking

a libertarian in that sense, and no longer much of a theist” (quoted in Levy 2002). Identifying with workers’ rights, Lessig shed his “theism” to cast a critical eye toward markets and came to place more faith in the role of constitutional governments as safeguards of democratic liberty.
    The F/OSS movement has not yet been completely engulfed by Lessig’s political claims of the commons. There have even been some important critiques of Creative Commons among advocate-lawyers and F/OSS developers who note how Creative Commons’ promotion of choice dilutes the clear standard of freedom found in F/OSS (Elkin-Koren 2006; Hill 2005), and edges quite close to neoliberal territory in advocating a language of choice. Despite these differences, there is an affinity between the two, and they act to mutually reinforce each other’s goals, interests, and visions. In charteringa new nonprofit that curates licenses modeled along the lines of F/OSS, high-profile academic lawyers like Lessig have raised the credibility of the idea of software freedom. Conversely, the success of F/OSS has served to demonstrate the plausibility of Creative Commons’ idea. Through a process of cross-pollination, many hackers have been inspired by the aims and actions of Lessig, particularly those concerning the notion of a commons.
    The Politics of Defamiliarization
    “Free software may have started as mere software,” explains Bollier (2009, 37), “but it has become [ … ] proof that individual and collective goals, and the marketplace and the commons, are not such distinct arenas.” Despite the fact that versions of this statement are routine, much less has been written about the social mechanisms and political conditions under which F/OSS could serve as such a powerful icon. In the previous section, I examined how and under what conditions F/OSS has served as transposable model. I now offer a few concluding thoughts about the effects of its adoption across a wide domain of social arenas.
    As already noted, a central feature of F/OSS is its political agnosticism (or alternatively, its narrowly defined politics), which has facilitated its visible spread and adoption in distinct arenas of life, allowing it to attain a position where it can perform a political message. Because the practices of F/OSS challenge economic incentive theory—assumptions that buttress intellectual property law—it works as a form of cultural critique, tacit assumptions converted to an explicit state of affairs. The moment that “any set of values, and material forms comes to be explicitly negotiable,” observe Comaroff and Comaroff (1992, 29), signals “the end of its naturalized state.”
    Jacques Derrida’s work on language, culture, and law provides insight into the realization and practice of copyleft. Along with a string of other theorists, Derrida has demonstrated that any naturalized proposition (like heterosexuality) or social fact both presupposes and ultimately propagates what it excludes (Butler 1997; Derrida 1978; Graeber 2001, 2004). It is just this structural quality of language and cultural concepts that Stallman exploited when he established the first F/OSS license, the GPL. What is important to highlight here, though, is that while mainstream copyright discourse and related intellectual property laws necessarily presuppose their opposition, they lack any metapragmatic indication of this presupposition. Most of copyright’s recent legal history in fact represents a vehement disavowal, through economic incentive theory, of oppositional entailment of the copyright. The GPL more clearly speaks a metapragmatic commentary on its oppositional existence—an awareness even built into its informal name, copyleft, which explicitly calls into being and thus points to its counterpart, copyright.
    Noting this asymmetry is crucial if we are to understand how copyleft licenses provide not only an alternative but also one that critically points tothe shortcomings of its inverted cousin—copyright. We might even push this further, again with the help of Derrida, this time using insights from an essay titled “Force of the Law: The Mystical Foundation of Authority.” Derrida (1990, 12) identifies what he calls the “performative” (and circular) nature of liberal law, in which law gains its authority by virtue of being sanctioned as law: “Laws keep up their good standing,” explains Derrida, “not because they are just, but because they are