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[David M.Berry <d.berry AT sussex.ac.uk>]

Libre Commons = Libre Culture + Radical Democracy

- David M. Berry & Giles Moss



We have been encouraged of late to see more critical reflection and  
commentary about libre culture, Creative Commons and the immaterial  
commons coming up on our screens (Berry 2005; Dvorak 2005; Hill 2005;  
Nimmer 2005; Orlowski 2005; Tóth 2005). In this article, we once  
again aim to foment and contribute to this discussion. We maintain  
that the politicization of the project of the commons is a positive  
development and we look forward to more agonistic debate. We reject  
the silencing tactics favored by some, who seem to imply that it  
would best to avoid debating libre culture and, instead, be content  
with playing ‘follow my leader’ or ‘Simon says…’. So many unspoken  
words spell out a problem in our view, rather than a solution.

It’s not surprising that those who question the value of contestation  
and dissensus would read our previous comments on the creative  
commons as negative and destructive (Berry & Moss 2005). This was not  
our intention. We wanted our article on the creative commons to be  
nothing but positive and constructive. Why? Because we think that the  
only way to consolidate the power and realize the promise of libre  
culture is through the creation of a radical democratic project. Such  
a project rejects all bureaucratic tendencies and silencing tactics.  
It is premised on the political as much as anything else, where the  
political is understood in its specificity, as a field of agonistic  
contestation and circuitous re-articulation. Radical democracy offers  
a positive vision for libre culture, and a constructive response to  
the question of how libre culture can deepen and extend itself. It is  
about a multiplicity of singular networks of struggle operating on  
the terrain of civil society who may seek strategic alliances and  
articulate as an active political subject under a ‘common’ radical  
democratic (counter-hegemonic) project.  This stretches libre culture  
out in myriad directions, to form multiple points of passage with  
other singularities who are now struggling against various power  
asymmetries and injustices.

In this article, then, we want to introduce libre culture to radical  
democracy.[1] We hope that a meeting between the two will lead to a  
mutually beneficial engagement. This hope and vision here goes under  
the name of the libre commons to differentiate it from other groups  
and proposals (such as Creative Commons). Libre culture is presently  
being reduced to economic, moral, technological or legal logics, all  
of which (in different ways) claim to circumvent the political and  
move us along effortlessly in straight, non-political lines (Berry  
2004). In contrast, libre commons (= radical democracy + libre  
culture) makes room for plurality, dissensus and curvature — the  
raison d’etre of the political.

In our view, thinking about libre culture with radical democracy is  
long overdue. True, Micheal Hardt and Antonio Negri  have recently  
penned: ‘Our approach to understanding the democracy of the  
multitude… is an open-source society, that is, a society whose source  
code is revealed so that we can all work collaboratively to solve its  
bugs and create new, better social programmes’ (Hardt & Negri 2004).  
We concur, needless to say, with the sentiment. Libre culture’s  
democratic effects could be far-reaching. But we question the  
prevalent idea that democracy is an essential part of libre culture  
and something that will automatically flow from it. Libre culture can  
be understood in myriad ways and move in various directions. Not all  
of these directly are particularly democratic, neither are they (for  
that matter) necessarily counter to the present. Insofar as libre  
culture eschews the political, we argue, it is not likely to be very  
democratic in its effects at all. In the light of this, it is unclear  
to us what Hardt and Negri actually mean when they invoke the term  
“open-source”. For one thing, their delphic usage ignores a number of  
significant internal differences in libre culture between, say, Free  
Software, Open Source and the Creative Commons, or between eminent  
spokesmen like Richard Stallman, Eric Raymond and Lawrence Lessig.  
Such differences, from our anti-essentialist perspective, are  
critical to the future direction of libre culture. And it is for this  
reason that we here wish to defend an alternative radical democratic  
position. In short, this is the idea of the libre commons.



1. Anti-Political Motifs

Our last discussion of the commons took the form of a critique aimed  
squarely at the creative commons (Berry & Moss 2005). We argued that,  
despite the rhetoric, the creative common was a simulacra of a  
commons that was instantiated in private property, contract and  
possessive individualism. The creative commons in no way replaced  
commonalty. Rather than offering us an alternative, the creative  
common movement is a continuation of the process by which private  
property and a neo-liberal worldview colonizes all aspects of life.  
Despite its achievements, the creative commons has a depressing  
inability to see beyond markets and money as steering media.

So our previous article was an invitation to think about libre  
culture in a more critical and political way. We wanted (and still  
want) to provoke contestation and open up libre culture to consider  
all possibilities. Unfortunately, many of the responses we received  
did not welcome the politicization of the issue. They found it  
unhelpful, rather than helpful. Why? The responses were varied and  
came from different directions, but one striking thing that they all  
shared were an insidious anti-political tendency. Again and again, we  
found the anti-political logics of economics (like certain currents  
within the creative commons or open-source movement), moral consensus  
(like certain currents with the Free Software Foundation), and, of  
course, law (as a key nodal or obligatory passage point for libre  
culture, more generally). But nowhere do we find the political. In  
this respect, the reaction we received to our last article reminded  
us of Carl Schmidt’s perspicuous remarks on modern liberalism. ‘In a  
very systematic fashion’, so Schmidt argues, ‘liberal thought evades  
or ignores politics and moves instead in a typical always recurring  
polarity of two heterogonous spheres, namely ethics and  
economics’ (Mouffe 2000).

Many people took umbrage with our previous argument against the  
creative commons for undermining the libre culture movement. One  
person emailed, ‘I strongly believe that we must present a united  
front…you must be prepared to compromise’. It was argued, in  
particular, that our ‘theoretical critique’ made little sense  
strategically and practically. If anything, it would damage the  
process whereby libre culture was now broadening itself out and  
developing a wider appeal. It is quite right, in our view, to  
question the value of overly abstract theorizing, to make hurtful  
quips about armchairs, when theory is entirely detached from  
practical intent and the reality of social (or, more accurately,  
socio-technical) struggle. Most of us share, despite our other  
differences, a hope that the project of libre culture will deepen and  
extend. But the salient question is how, by which machinery, and in  
which direction. In our view, the creative commons has widened itself  
out in such a way that it now bears little resemblance to the  
underlying arguments that should be made for libre culture. By  
opening itself up to a broad membership, especially by courting  
private industry and property, it is following an economic market  
logic that compromises libre culture and encourages multinational  
corporations to take centre stage. It has taken the same path as  
‘open-source’. (Eric Raymond, of course, distinguished the term ‘open  
source’ from that of ‘free software’ because the latter term was  
unappealing to private industry.)  This results in inevitable  
dilemmas for libre culture in terms of co-option and compromise, as  
we argued in our last article on the subject.

By what other means can libre culture deepen and extend itself? Well,  
we were interested to read the intervention by Hill (2005).  
Thankfully, this article moved away from the narrow economistic logic  
of the creative commons and open source. Hill has another agenda, but  
one that is no less familiar to those versed in debates over libre  
culture. For him, the creative commons had lost touch with a moral  
set of principles that allowed us to distinguish between (what he  
termed) ‘right’ and ‘wrong’.  Some of Hill’s criticisms of the  
Creative Commons tally with our previous remarks. But we are none the  
less skeptical of his proposed alternative. What he does, in effect,  
is displace the problem with the creative commons to a different  
level. Rather than turn to economics, he turns to the order of  
morality. By an over-hasty fetishisation of technology, and the naive  
acceptance of human rights in a metaphysical sense, there is a lack  
of grounding in real concrete political action. His arguments are  
again anti-political. They attempt to close down the space for  
contestation, too, but this time in the name of an ultimate and  
invariable ‘good’ or ‘right’.

This indicates a more general problem with many of the arguments of  
the Free Software Movement: they are overwhelmingly made within a  
moral register. Claims to authority are made by reference to a priori  
human rights divorced from the political realm. Decisions are made  
between “right” and “wrong” (note the quite deliberate scare quotes)  
on the basis of a supposedly shared morality. There is then no ground  
for further discussion as the terms of the decision have already been  
set a priori. This has dangerous consequences. It closes down  
possibilities; it prevents alternative articulations. They are all  
variously labeled dangerous, evil or wrong. Counter-arguments can be  
neatly ignored and an ostensible moral consensus within the free  
culture “community’ maintained. We have assertions made to a ‘right  
to...’, not political claims to struggle to bring into effect these  
rights and liberties. The discourse of rights, used in such a way,  
does not encourage political thinking. Instead, it tends to close  
down debate to a simplistic friend/enemy binary.



2. The Libre Commons

The alternative we want to suggest to broadening and extending libre  
culture is the radical democratic project of the libre commons. We  
believe that a political approach should be sought that channels  
dissent within the movement of libre culture towards a vibrant  
political space of agonistic debate, rather than an antagonistic  
friend/enemy relation. Our position is that no movement can remain  
legitimate without a political component; that is, without realizing  
the importance of the struggle of groups asserting and contesting  
their agonistic positions through a political process to reach a  
decision. This is not a decision to be taken by consensus. Moral  
consensus merely invalidates the political as it does not allow for  
opinions to fall outside of its boundaries (Mouffe 2005). When they  
do, and they will do, they are illegitimate or ignored as ‘foe’. We  
argue that the very rights that libre culture movements are calling  
for should be substantiated through political democratic means and  
agonistic debate.

This offers a different way— a ‘third way’ if you like— for libre  
culture to broaden itself out and deepen. But this approach is no  
less productive and constructive than any other. Indeed, we believe  
it to be more so. It is about a multiplicity of singular networks of  
struggle operating on the terrain of civil society. These networks  
can seek alliance and articulate as an active political subject under  
a ‘common’ and counter-hegemonic radical democratic project. The  
common that they articulate under is an ‘empty place of power’ and is  
therefore truly democratic. It is something to be articulated and re- 
articulated, made and re-made, by political means. It is not reduced  
to (possessive individualist) economic or (consensus-based) moral  
assumptions. It is vision where libre culture connects and finds  
points of passage with other singularities (machines of struggle) who  
are coming up against various other power asymmetries.

Strategic alliances can here be drawn through political means against  
the unremitting exploitation of the ‘common’ pool of immaterial  
labour. Which is to say, it is about time that libre culture  
meaningfully engaged with various other struggles against the  
commodification of knowledge, as they are expressed, for example, in  
terms of native knowledge, farmers, the sick, and workers more  
generally.  This will require an articulation of the dangers and  
threats from commodification from knowledge expressed in terms that  
can be valued and understood by a broader constituency. As libre  
culture becomes more inclusive, acquiring new members, allies and  
connections, it grows more political. It clarifies, with ever greater  
sophistication, the various causes of the complaint, and what is  
needed to remedy it. It is no longer good enough to limit the demands  
to a technical concern for computer programming or the freedom to  
make music. Rather, these issues flow out across a number of  
different planes. There is a need to build alliances across these  
different struggles. This may well involve the uncomfortable truth  
that a cozy moral consensus is not reached. But political alliances  
can be drawn and partial closures fixed under the common, as a  
counter-hegemonic project (Laclau & Mouffe 2001).

Fragmentation and contestation, rather than being seen as a weakness,  
is a positive political moment. Through agonistic debate there is the  
possibility for the development of a multi-perspectival approach to  
instantiating a new form of commons for the twenty-first century.  
Debate is never closed absolutely, for there is never a full  
reconciliation. There is only a temporary hegemonic closure which can  
continue to be countered or rearticulated. One condition of this is  
through the development of ‘the common’ as the empty signifier and  
place of power around which numerous diverse groups can  
democratically mobilize. The common is to be articulated through the  
creation of alliances between individuals and groups (i.e., singular  
machines of struggle) formed through political dialogue and action.



3. Libre Commons ‘Licences’



Up to this point we have been oddly silent on law. Somehow or other  
we have got a fair way through an article on libre culture without  
really mentioning law directly. Throughout this article, we have  
argued, along with radical democracy, for a turn away from the anti- 
political language of economics, technology and morality. This means  
that legal rights understood as a priori human rights would fall  
foul, too, since they presuppose the (all too Western and  
imperialistic) idea of a universal moral consensus. We reject the  
ideas of a universal human nature, of a universal cannon of  
rationality, as well as possibilities of a universal condition of  
truth. But rejecting the notion of human rights as given or universal  
does not mean that do not value rights per se. Quite the contrary.  
They can be extremely useful strategic devices in the political field.

We would also support other measures that pertain to legal rights.  
“Why not have a new legislative agenda for a ‘global commons’/ Let’s  
also prevent the world-wide drift to unitary (i.e., US) intellectual  
property rights”. Like you, we want all this and more from the law.  
But even so, we do not forget that it is only through political  
struggle that rights are constructed, invested with meaning and given  
any force. Yes, being political can be arduous and frustrating;   
politics often moves circuitously, rather than in a straight line. Be  
this as it may, rights are constructed not given, they are the result  
of political struggle, not assertions of moral orders. There is no  
way to bypass politics. There is no such thing as a priori human  
rights, just legal promises that we must continually ensure our  
fulfilled for ourselves and for our friends also. We need, in sum, to  
always re-articulate rights as democratic and political rights,  
rather than viewing them as given, universal or reducing them to an  
individualist framework.

These are the grounds on which we have introduced the Libre Commons  
licences into the ether, including the Res Communes and the Res  
Divini Juris licences. Let’s be clear: these “licences” are politic- 
democratic devices. We do not claim that they have legal authority.  
Indeed, our non-legal usage of the term licence has upset some  
lawyers and the like. They have lectured to us that our use of the  
term “licence” is ‘wrong’, ‘incorrect’ and ‘contradictory’. It is not  
surprising that those, who retain power and status by claiming to  
speak ‘correctly’ and with ‘rectitude’ on other’s behalf, would fear  
polysemy and flat-out deny our capacity to think or speak otherwise.  
It is not surprising that those who move in anti-political worlds of  
straight lines would want to deny our political capacity to contest  
and multiply meanings.

We want, in contrast, to here be a little more licentious with the  
word licence than the lawyers allow. For those wonks and purists of  
etymology, with an Oxford English dictionary at the ready, let us say  
that for the purposes of the libre commons we are drawing on other  
connotations of the term. We don’t take 'licence' to mean legal  
permission. Closer to our meaning of license would be licence as in  
‘poetic license’, as in a poetics of knowledge and politics. The  
meanings proliferate further: ‘liberty of action’, ‘abuse of  
freedom’, ‘licentiousness’, ‘disregard of proprietary’,  
‘irregularity’, ‘deviation from the norm’ and so on. In any case, let  
us turn to consider the poetic license of the libre commons more  
directly.



Libre Commons Res Communes Licence

The commons is that which is shared in common with others. This can  
be a resource, such as land or water, that members of “community” own  
and share. The commons has traditionally been limited to a local  
community right and to a physical resource such as a forest. But it  
has also been used to refer to the space of intellectual thought —an  
‘ideas commons’, an ‘innovation commons’, an ‘intellectual commons’,  
a ‘digital commons’, ‘immaterial commons’ and inevitably an ‘e- 
commons’, ‘the public domain’ or ‘Intellectual Space’. This Libre  
Commons Res Communes Licence commits work that is inscribed with it  
to a shared common that all can draw from and reuse.

We are, to be clear, using the concept of the commons in an inclusive  
and positive sense. The commons is shared in common between us (i.e.,  
positive in being ‘owned’ by us all) and inclusive in that we are all  
included in being able to use the commons (i.e. inclusive in as much  
as it includes the human race as a whole). This differs from negative  
conceptions of ‘community’ relating to the commons, where the commons  
is an unowned space, ripe for appropriation and privatization by  
anyone (i.e. the justification used by corporations for the  
appropriation of common land).



> Res Communes Licence
>
>
>
> The Res Communes license is designed to reject a state-centred  
> legal construct of a commons (or commons without commonalty) in  
> order to concentrate on creating a common which is shared between  
> us in collective practices (a commons with commonalty).
>
> The 'Commune' or the 'Commonalty' originally meant 'the people of  
> the whole realm' or 'all the King's subjects' as opposed to the  
> King, the Nobles or the 'Commons' in Parliament. We here refer to  
> the commonalty to refer to the global multitude, the people of the  
> whole world.
>
> 1. This work is outside of all legal jurisdictions and takes its  
> force and action from the constituent radical democratic practices  
> of the global multitude against the logic of capital.
>
> 2. All work that is so inscribed should bear the text '(L) 2005  
> Libre Commons Res Communes License'.
>
> 3. As a user of this license the work is available to be shared and  
> used as part of a common creative substrate that is shared between us.


Libre Commons Res Divini Juris Licence



Temples, tombs, religious statues and places were considered to  
belong to no one because they were in the service of the gods. The  
impediment to being turned into property was not natural but divine.  
Following Heidegger's call that only a God can save us, the God in  
question is that that can produce a clearing, the possibility of  
another place, making a different world. Drawn from a concept of  
Species Being, or a shared common practice such as the General  
Intellect (i.e. commonalty), works that are contributed to the Res  
Divini Juris are committed to the human species as a whole. Beyond  
Temporal Law and the liberal legal system, we could think of it as a  
space of the permanent state of exception.

In this case, the space is one which lies beyond a notion of human  
‘ownership’ at all. Instead, due to their sacredness, there should be  
no attempt to commodify or privatize. We can think here of the  
sanctity of human life, the human genome or the great knowledge and  
literature passed onto us from previous thinkers.



> Res Divini Juris Licence
>
>
>
> The Res Divini Juris license is designed to so that sacred spaces  
> can be opened up, and offer the possibility of contestation and  
> debate which can discuss matters of public importance as a  
> practical activity. What is endangered under advanced capitalism is  
> a source of resistance. Treating everything as resources makes  
> possible endless disaggregation, redistribution, and re-aggregation  
> for its own sake. This can be seen as a period of de- 
> industrialisation and growth in the communicational and semiotic as  
> generators of surplus value in the period after the second world  
> war. The informational economy has emerged as a moment where  
> capitalism seeks to enclosure cultural texts to maximise profit,  
> the shift from the consumption of goods to the consumption of  
> experiences.
>
> Alternatively, background practices work by gathering and so  
> bringing things ‘into their own’ (i.e. uncovering). The gathering  
> of local practices around things produces temporary, self-enclosed  
> local worlds that can resist the totalising and dispersing effects  
> of the flexible and efficient ordering under capitalism.
>
> 1. By using this license you are agreeing to allow your work to be  
> shared as a step on the path of revealing. Within the realm of the  
> gods, the work will contribute to a shared new world of collective  
> practices and networks of singularities operating within a non- 
> instrumental and communal life.
>
> 2. All work that is so inscribed should bear the text '(L) 2005  
> Libre Commons Res Divini Juris License'.
>
> 3. This license operates under a permanent state of exception. It  
> is a result of radical democratic practices beyond the state.
>
> 4. Users of the license are committed to political action and  
> social struggle.
4. Coda



Working assumptions on our part about the likely readership of this  
paper has made our meeting between libre culture and radical  
democracy rather one-sided. Rightly or wrongly, we assumed that our  
readership would know more about libre culture than radical  
democracy. We have therefore let radical democracy do much of the  
talking in this article. The result has been more of a monologue than  
a dialogue. None the less, we began by saying that we hoped a meeting  
between libre culture and radical democracy would lead to a mutually  
beneficial engagement. The struggle for the libre commons can, as we  
have argued throughout, form the basis for a ‘common’ radical  
democratic project. But to achieve this, radical democracy needs to  
engage with libre culture as much as the other way around. So what  
does thinking about radical democracy along with libre culture mean?  
Well, this is another topic, another intervention, for another time.  
A lot could be said, and needs to be said, but let us conclude with  
one thing that libre culture might say to radical democracy.

As we have argued above, radical democracy underlines the centrality  
and specificity of the political: that is, agonistic debate and  
contestation. Relentlessly, radical democracy keeps saying to libre  
culture: “Don’t forget the political by reducing everything to  
straight lines/ the only way to protect our rights and liberties is  
by acting politically”.

But then Libre culture might say, “Fair enough, I accept that I have  
to act politically and that democratic rights are important/ But  
where does all this political contestation that you talk of take  
place?/ Many of the old ‘public places’ have been privatized, have  
fallen into disrepair or were just plain miserable/ You’re just not  
being practical!/ How are we to construct public-political spaces  
adequate to our time, or much better, how are we to construct  
untimely spaces, adequate for a possible time to come?”

With radical democracy, we stress the need for plural passage points,  
for multiplying the forms and modes of democratic agency and  
subjectivity available in the present. We favor heterogeneity-  
multiple assemblages of humans and non-humans. We question, to be  
sure, the liberal idea of a single, homogenous public. This is for  
the same reason that we have questioned an overly singular and  
concrete sense of libre culture, and the idea that it can move in  
straight lines. Meanwhile, however, thinking about radical democracy  
along with libre culture, gives us reason to look at this through a  
different optic. This is an optic whose focus has been sharpened  
through the struggle against the intellectual property regime.  
Postmodern capitalism, whose chief expressions are the market and the  
commodification of immaterial labour through intellectual property,  
brings an endless spinning off and proliferation of the seductively  
‘new’ or ‘novel’. On the surface there seems to be the continuous  
reproduction and valorization of multiple passage points and sites of  
power. But then as soon as they are produced these passage points are  
devalued with the next upgrade, the next conceit, the next chance for  
profit, by in-built obsolescence and patents that are in the danger  
running out.

Hannah Arendt, in The Human Condition, was clear on the importance of  
the objectivity or thing-character of the world and particularly  
public space. Along with Arendt, we might say not only does libre  
culture provide the possibility for widespread experimentation with  
public socio-technical space, it also ensures that public spaces can  
(if we want them to) have a relative durability and stability. Common  
ownership is the basis from which socio-technical space can be  
protected, and the stability and durability necessary to democratic  
engagement and agency be ensured (Arendt 1999). Libre culture, to put  
it bluntly, puts these decisions in public and democratic hands.

Libre Commons licences carry the hope that they can be both a way of  
rethinking the commons, beyond narrow conceptions of public and  
private ownership, and also contribute to a stability of creativity,  
a place where things may be placed outside of the ‘system of needs’,  
with its rampant exploitation and reduction of all to profit.  That  
this space can become re-thought as a space of the ‘common-wealth’,  
that is, that all may have access to use the ‘common things’ and  
productively contribute to the common good. This, of course, is but  
one more expression of libre culture’s long overdue political calling.



Notes:



[1] Our understanding of radical democracy follows more-or-less the  
various writings of Earnesto Laclau and Chantel Mouffe: it is  
relational rather than essentialist, stresses the agonistic nature of  
the political and is radical as in far-reaching



More info



http://www.creativecommons.org

http://www.fsf.org

http://www.libresociety.org



References



Arendt, H. (1999). The Human Condition. Chicago, London: University  
of Chicago Press.

Berry, D. M. (2004). The Contestation of Code: a Preliminary  
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Berry, D. M., & Moss, G. (2005). On the “Creative Commons”: a  
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free_issues/issue_05/commons_without_commonality

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Laclau, E., & Mouffe, C. (2001). Hegemony and Socialist Strategy:  
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Mouffe, C. (2005). On the Political. London: Routledge.

Orlowski, Andrew (2005). On Creativity, Computers and Copyright. The  
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Nimmer, Raymond (2005). Open source license proliferation, a broader  
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Tóth, Péter Benjamin. (2005). Creative Humbug: Personal feelings  
about the Creative Commons licenses. Retrieved from http:// 
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