Inked

'Tattoos and IP Norms' by Aaron Perzanowski in (2013) 98 Minnesota Law Review 511 comments

Twenty-one percent of adults in the United States — more than sixty-five million Americans — have at least one tattoo. For those under age forty, that percentage nearly doubles. Not surprisingly, the tattoo business is booming. By some estimates, the U.S. tattoo industry generates $2.3 billion in annual revenue. Once the mark of sailors, convicts, and circus performers, the tattoo has infiltrated mainstream society.

Despite its countercultural origins, the tattoo industry shares much in common with other, more familiar creative industries. Fundamentally, it capitalizes on market demand for original creative works. Yet as public goods, the value of those works is readily appropriable through copying. Predictably, copying is both a practical reality and a source of concern within the industry. But unlike their counterparts in most other creative industries, tattooers nearly uniformly reject formal legal mechanisms for adjudicating claims over ownership and copying. Although tattoos fall squarely within the protections of the Copyright Act, copyright law plays virtually no part in the day-to-day operation of the tattoo industry. Instead, tattooers rely on a set of informal social norms to structure creative production and mediate relationships within their industry.  

Following in the tradition of earlier scholarship exploring the intersection of intellectual property law and social norms, But this Article differs from much of the prior work on intellectual property and social norms in two ways. First, the tattoo industry norms reported here represent the first example of market-driven informal alternatives to intellectual property law that emerged despite fully applicable formal protections. Unlike norms that emerge in the shadow of some barrier to meaningful intellectual property protection,this Article sets out with three objectives: to provide a descriptive account of the norms related to creative production within the tattoo industry; to explain both the industry’s choice to forego formal assertions of legal rights and the particular content of the norms it has embraced; and to consider the implications of this case study for intellectual property law and policy more generally.

But this Article differs from much of the prior work on intellectual property and social norms in two ways. First, the tattoo industry norms reported here represent the first example of market-driven informal alternatives to intellectual property law that emerged despite fully applicable formal protections. Unlike norms that emerge in the shadow of some barrier to meaningful intellectual property protection tattoo industry norms function as an informal system of community governance that developed despite an applicable body of formal law. And unlike norms governing nonmarket behavior, tattoo industry norms prevail despite the same profit motive characteristic of many creative fields. 

Second, tattoo industry norms are unique because they must account for a more complex set of relationships than those observed in earlier case studies. Tattooers must establish norms that govern not only their interactions with each other, but with clients who play an important role in the creation and use of their works as well. Further complicating matters, aside from copying within their industry, tattooers are faced with the question of the propriety of copying outside of it. This overlapping complex of relationships between tattooers, clients, and the broader art world yields a correspondingly rich, nuanced, and perhaps contradictory set of creative norms. 

Part I of this Article offers a brief history of the practice of tattooing — beginning with its widespread use in early civilizations, then turning to its colonial reincorporation into the West, and the recent emergence of the “tattoo renaissance. This Part will also introduce the basic structure and vocabulary of the contemporary tattoo industry.

After establishing the doctrinal applicability and practical irrelevance of formal copyright law to tattoos, Part II catalogs the norms that structure the tattoo industry. To develop this descriptive account, I conducted fourteen in-person qualitative interviews in early 2012 with tattooers throughout the United States, identified through snowball sampling relying on existing industry contacts. In terms of geography, gender, experience level, work environment, style, and clientele, these interviews capture a diverse, if not necessarily representative, cross section of perspectives within the tattoo community.

These interviews revealed five core norms. First, tattooers as a rule recognize the autonomy interests of their clients both in the design of custom tattoos and their subsequent display and use. Second, tattooers collectively refrain from reusing custom designs — that is, a tattooer who designs an image for a client will not apply that same image on another client. Third, tattooers discourage the copying of custom designs — that is, a tattooer generally will not apply another tattooer’s custom images to a willing client. Fourth, tattooers create and use pre-designed tattoo imagery, or “flash,” with the understanding that it will be freely reproduced. Finally, tattooers generally embrace the copying of works that originate outside of the tattoo industry, suchas paintings, photos, or illustrations. In some ways, these norms unintentionally echo familiar concepts from copyright law, but they differ from formal law in important respects as well.

Part III offers a number of complementary explanations for the content of tattoo industry norms and the industry’s reliance upon them. Both the culture and economics of the tattoo industry gave rise to its particular set of norms. Tattooers share a disdain for authority and a history of harsh legal regulation that renders them generally hostile to the legal system. Perhaps more importantly, as a deeply client-driven enterprise, the tattoo industry is sensitive to consumer expectations. Those expectations provide strong incentives for the development of norms in order to preserve the industry’s collective interest in the continued viability of the market for custom tattoos. Finally, tattoo norms also erect barriers to entry to the increasingly crowded field of tattooers, revealing the guild-like nature of the industry.

Part IV concludes by considering the broader lessons the tattoo industry offers for intellectual property law and policy. The tattoo industry’s success reveals the importance of customizing creative goods to deter widespread copying and of bundling easily copied creative goods with difficult-to-copy personal services.

Public sector procurement

The report from the Joint Select Committee on Government Procurement regarding its inquiry into the Commonwealth Procurement Framework (particularly the amended Commonwealth Procurement Rules) offers recommendation for improvement of the regime.

The report states

Amendments to the Commonwealth Procurement Rules came into effect on 1 March 2017. The amendments aim to ensure that the full benefit of Commonwealth procurement will flow to the Australian economy. The amendments will also ensure that Australian regulations and standards are upheld. The amendments are designed to mitigate the disadvantages faced by Australian suppliers accessing government procurement opportunities.

The evidence received by the Committee showed overall support for the amendments to the Commonwealth Procurement Rules. However this support was tempered by concerns about effective implementation. Many of the new clauses lack clarity or leave too much to the discretion of officials. The Committee has made suggestions to tighten up the clauses by refining or expanding the terms.

The Committee heard about several problems with the implementation of the previous Commonwealth Procurement Rules. These include a procurement culture that focuses on lowest cost rather than value-for-money, a lack of accountability and transparency, and unacceptable risk shifting. There is also a perception that–due to a lack of technical skill and expertise–the government has become an uninformed purchaser. The absence of a requirement to comply with Australian standards is also considered a deficiency.

There are several flow-on risks that may have a detriment on Australia more broadly. These include the loss of a skilled workforce, safety, economic and environmental risks and potential wastage. The procurement system may also create barriers to domestic businesses to even attempt to take advantage of procurement opportunities. Comprehensive guidelines are essential to address the current deficiencies and ensure that the implementation of the new clauses is successful. New guidelines are required to remove the discretionary nature of decision making and replace it with specific standards that must be met, as well as mandate the evidence required from tenderers. Economic benefit, in particular, requires explicit definition and weighting to properly assess suppliers claims. There must also be specific, detailed guidance on negotiating the complex area of human rights.

Additional procurement connected policies are needed to provide guidance for environmental sustainability and human rights. These guidelines and policies should be supplemented with a public service wide training program. Improved record keeping is essential to address the lack of transparency and accountability in the current system.

Contract management can be better utilised to control implementation and maximise procurement and contract outcomes. Good contract management ensures that tenderers meet their obligations and responsibilities.

If the amended Commonwealth Procurement Rules are to encourage Australian suppliers, the Australian Government must not enter into international trade agreements which diminish the benefits that underpin these amendments. Additionally, procurement officers must be better informed of the exemptions currently available in the international agreements to preference domestic businesses.

A range of best practice models are available for Australia to draw on to improve the procurement system.

The Committee believes that a three pronged approach is necessary to address the implementation issues identified in this report and ensure the new rules are applied consistently, transparently and to maximum effect. It would like to see:

• the publication of comprehensive implementation guidelines coupled with public service wide training to support officials to apply the rules in the manner in which they are intended; 

• the introduction of procurement connected policies to safeguard the Australian Government’s role as a model procurer; and 

• the formation of an independent Industry Participation Advocate modelled on the South Australian system to facilitate consideration of Australian economic benefit required by clause 10.30.

The Committee' recommendations are

R1 - that the Department of Finance revise clause 10.9(c) of the Commonwealth Procurement Rules to require all goods purchased by the Australian Government to comply with Australian standards unless none are applicable.

R2 - that the Attorney-General’s Department oversee the introduction and application of a procurement connected policy requiring Commonwealth agencies to evaluate suppliers’ compliance with human rights regulation.

R3 - that the Department of Environment oversee the introduction and application of a procurement connected policy requiring Commonwealth agencies to evaluate the whole-of-life environmental sustainability of goods and services to be procured.

R4 - that the Department of Industry, Innovation and Science enhance the procurement connected policy for Australian Industry Participation Plans, requiring that good procurement practices are implemented down through the supply chain so that both prime and subcontractors: implement best practice terms and conditions; and are contractually obligated to report on those terms and conditions.

R5 - that all Commonwealth contracts contain a similar clause to Commonwealth Contracting Suite clause 10, ensuring that the obligations of prime contractors apply to all sub-contractors.

R6 - that rural and regional small and medium businesses be added to the list of exemptions under Appendix A: Exemptions from Division 2 of the Commonwealth Procurement Rules.

R7 - that the Department of Finance and the Department of Industry, Innovation and Science jointly develop and implement a framework to collect relevant data on the degree of Commonwealth procurement that is supplied by Australia-owned businesses, contains Australian-manufactured goods, or uses Australian-based services.

R8 - that, in negotiating future trade or World Trade Organisation agreements, Australia not enter into any commitments that undermine the Australian government’s ability to support Australian businesses.

R9 - that the Department of Finance, or the proposed Australian Industry Advocate, publish comprehensive implementation guidelines for the new Commonwealth Procurement Rules as a matter of priority. The guidelines should:

• explicitly define what constitutes economic benefit; 

• prescribe a minimum 15 per cent weighting across a tender in accordance with the economic benefit criteria; 

• procuring agency or Minister to retain discretion to increase weighting to leverage economic benefit; 

• encourage maximisation of economic opportunities and benefits when assessing a tender for the degree of local content and participation; 

• outline how rubrics or weighted criteria may be used to compare the unique economic benefits offered by different suppliers and in assessing economic benefit as part of the overall tender evaluation; 

• describe techniques for assessing the veracity of suppliers’ claims of economic benefit and for ensuring these benefits are delivered; and 

• encourage the consideration of innovative solutions during the scoping and design stage of procurement projects.

R10 - that, in order to limit discretionary decision-making, promote consistency and safeguard transparency, the guidelines prohibit the use of qualitative assessments across whole tenders.

R11 - that the guidelines specifically require that, for all procurements over $4 million, a record is created including: the reason for the tender approach chosen; the reason for the selection of the preferred tenderer; and details of the economic benefit score.

R12 - that the Department of Finance design and deliver a public service wide training program to support the effective implementation of the new Commonwealth Procurement Rules in line with new guidance material.

R13 - that the Australian government ensures that all departments and agencies must ensure that an individual has successfully undergone procurement training before that individual can be delegated a procurement authority.

R14 - that the Australian Government legislate as a statutory authority under the responsibility of the Minister for Industry, Innovation and Science an Australian Industry Advocate to:

• aid Commonwealth agencies to design procurement processes which maximise benefits to the Australian economy and increase opportunities for SME participation; 

• support Australian businesses to access Commonwealth procurement by promoting opportunities and assisting businesses to promote the economic benefits they can offer; 

• provide independent, transparent and consistent evaluation of the unique economic benefits offered by different suppliers; 

• guide Commonwealth agencies’ application of weighted criteria and assessment rubrics to overall procurement evaluations; and 

• monitor suppliers’ delivery of contracted economic benefits.

R15 - that the Department of Finance incorporate supplier feedback, including on the rewording of clauses identified in this report, into its 12 month review of the new Commonwealth Procurement Rules. It also recommends that the findings of the review are made public.

R16 -  that a Parliamentary inquiry is established by March 2018 to evaluate: supplier feedback, including on the rewording of clauses identified in this report; interaction with the Anti-dumping framework and the tax system; and; recent changes to the Australian Industry Participation Plan policy. The inquiry should report by the end of 2018.

Autonomy

'Ritual Male Circumcision and Parental Authority' by Kai Möller (London School of Economics - Law Department) comments

A recent judgment by a lower court in Germany brought the problem of ritual male circumcision to the consciousness of the wider public and legal academia. This essay weighs in on this emerging discussion and argues that ritual male circumcision is not covered by parental authority because it violates the human rights of the boy on whom it is imposed. It first considers and dismisses the best interest test of parental authority which, by focusing on the well-being of the child as opposed to his (future) autonomy, fails to take the boy’s human rights sufficiently into account. Instead, the essay proposes what it terms the autonomy conception of parental authority, according to which parental authority must be exercised such as to ensure that the child will become an autonomous adult. While parents may raise their child in line with their ethical, including religious, convictions, respect for his autonomy requires that this be done in a way that allows the child to later distance himself from these values; this implies, among other things, that irreversible physical changes are impermissible. This conclusion holds even if it could be assumed that the child would later come to endorse his circumcision: a proper understanding of autonomy implies that the religious sacrifice of a body part can only be authorised by the person whose body it is. Thus, ritual male circumcision is outside the scope of parental authority because it usurps the child’s right and responsibility to become the author of his own life.

Slavery and Corruption - Comparative Law

The elegant 'Slavery and Comparative Law in Eighteenth Century England' (University of Leicester School of Law Research Paper No. 17-08) by Michael Tugendhat addresses 

the contemporary criticism to the European Court of Human Rights in the UK by underscoring how the English law on human rights has been positively influenced by the laws of other European countries, in the same fashion as English law has traditionally influenced such foreign laws. The means for this analysis is a case-study on the introduction of the French law on slavery and the subsequent implementation of such principles in England. Slavery had been abolished in France since the early 1300s. Moorish slaves brought to France were being freed from at least 1571, as was recorded by Jean Bodin in 1576. In England, slavery had practically disappeared at the sunset of the Middle Ages. It resurfaced in the French and American colonies in the New World in the 1600s. In the period 1730-1790 French courts, citing Bodin, freed over 200 slaves brought to France from the colonies. In Somerset v Stewart, 1772, English courts finally held that slavery was not recognised by English law, which led to the termination of slavery in England once and for all; and it was the influence of French courts’ decisions on the bestowal of freedom to foreign slaves that led to the reasoning of the English Court.

'The Market for Global Anticorruption Enforcement' by Rachel Brewster and Samuel W. Buell in (2017) 80(193) Law and Contemporary Problems comments 

In just two decades, enforcement of the Foreign Corrupt Practices Act (FCPA) has evolved from a backwater of corporate and international financial crime to one of the most prominent and feared laws in those fields. What accounts for the ten-fold increase, over just 15 years, in the annual FCPA case volume produced by United States enforcers? We explain the development as arising from a confluence of independent but nonetheless symbiotic international and domestic political and economic forces. First, in the international arena, policymakers dramatically shifted their beliefs in the harms from bribery. This change and the continuous American pressure to conclude an anti-bribery treaty created a new consensus among major exporting countries to criminalize foreign bribery. This opened up new political and institutional paths to pursue the supply of foreign bribes. Second, U.S. enforcement lawyers eagerly pursued these newly available paths, propelled by political pressure and professional considerations. Third and inevitably, a large and active FCPA defense bar emerged that, perhaps ironically, helps keep primed a now steady pump of FCPA actions into the U.S. corporate enforcement system. A fourth stage has begun in which other nations, particularly in Europe, are both assisting and competing with the U.S. in the field of anti-corruption enforcement. It remains to be seen how this latest development will, over the longer haul, affect the size of the global market for anti-corruption enforcement and the U.S. share of that market.

'Reducing Bureaucratic Corruption: Interdisciplinary Perspectives on What Works' by Jordan Gans-Morse, Mariana Borges, Alexey Makarin, Theresa Mannah Blankson, Andre Nickow and Dong Zhang states that it offers

the first comprehensive review of the interdisciplinary state of knowledge regarding anti-corruption policies, with a particular focus on reducing corruption among civil servants. Drawing on the work of economists, political scientists, sociologists, and anthropologists, we examine seven categories of anti-corruption strategies: (1) rewards and penalties; (2) monitoring; (3) restructuring bureaucracies; (4) screening and recruiting; (5) anti-corruption agencies; (6) educational campaigns; and (7) international agreements. Notably, rigorous empirical evaluation is lacking for the majority of commonly prescribed anti-corruption strategies. Nevertheless, we find growing evidence of the effectiveness of anti-corruption audits and e-governance. In addition, adequate civil service wages seem to be a necessary but insufficient condition for control of corruption. An emerging skepticism regarding the effectiveness of anti-corruption agencies also is apparent in the literature. We conclude with broader lessons drawn from our review, such as the recognition that when corruption is a systemic problem, it cannot be treated in the long-term with individual-level solutions.

Identity Issues

Today's SMH reports on another appearance by Samantha Azzopardi - an echo of Frederic Bourdin, discussed in my doctoral dissertation - for fraud in receiving benefits while pretending to be a child.

The Herald states

A serial conwoman who posed as a 13-year-old Sydney foster child received nearly $20,000 worth of services from the NSW government and charities before she was found out, a court has heard.

Samantha Azzopardi has previously duped authorities in Ireland and Canada into thinking she was a child sex abuse and trafficking victim, forcing them to spend hundreds of thousands of dollars investigating her claims.

The 28-year-old was arrested at the beginning of June after she repeated that same story while pretending to be a 13-year-old Sydney high school student named Harper Hart.

Azzopardi pleaded guilty to four fraud offences earlier this month after she was given an iPad, phone and Opal card from the not-for-profit Burdekin Association, an ambulance transfer paid for by Good Shepherd Australia, and medication from the NSW Department of Family and Community Services.

Hornsby Local Court on Wednesday heard the cost of her lies to the Burdekin Association totalled more than $10,200. That included case management services.

The department spent about $6700 on medication while Azzopardi's charges also cover $1440 worth of counselling from a state government victim services group....

Azzopardi, who did not apply for bail, is due to be sentenced on July 19 when the court will consider a psychiatric assessment.

The 28-year-old faces a maximum penalty of 10 years in jail, according to court documents outlining police arguments for denying her initial bail.

The document cites her "extensive history of providing false documentation, obtaining passports in false names and assuming identities of other persons" in Queensland, Western Australia, Ireland and Canada.

Irish authorities were dumbfounded in 2013 when Azzopardi was found wandering the streets near Dublin's main post office and tricked them into thinking she was a teenage trafficking victim from eastern Europe by drawing pictures apparently showing a woman being raped and refusing to communicate verbally.

Authorities spent weeks and $A372,218 trying to identify the waif known as the "lost G.P.O girl" before taking the unprecedented step of publicly releasing a photo of her.

They soon discovered she was not a child sex trafficking victim but a 25-year-old Australian scammer with a history of assuming false identities dating back to 2007. ...

Azzopardi] was born into middle class family in 1988, growing up in Campbelltown and attending Mount Annan High School.

After finishing school she got a job at the Campbelltown Pancakes on the Rocks where her former boss described her in 2013 as "a lovely girl who had issues."

Quite so.

Azzopardi is reported to have been convicted in Brisbane Magistrates Court in September and October 2010 oncharges relating to making false representations and forging documents, with a $500 fine. In June 2012 she pleaded guilty in Perth Magistrates Court to offences relating to welfare fraud and was sentenced in October to six months imprisonment, suspended for 12 months.

Personhood

'The Citizenship of Personal Circumstances in Europe' (University of Groningen Faculty of Law Research Paper 2017-04) by Dimitry Kochenov comments

 The EU’s is a curiously atypical legal system which construes the on-going shift from citizenship to personhood in global constitutional law in quite an atypical way. The advent of the person boasts, globally, a powerful ability to remedy the harsh edges of the arbitrary exclusionary legal fiction of citizenship by embracing those who do not qualify to benefit from it. In the EU, however, the turn of constitutionalism to personhood plays quite the opposite role: it disables the protections of EU citizenship. This curious turn, which this paper aims to document and discuss, has two consequences. Firstly, it annihilates citizenship as a meaningful legal status in the EU, since its declared benefits and protections can always be overridden by personal circumstances of the holder: precisely what citizenship, at its inception, was supposed to make impossible. Secondly, it deprives of protections of citizenship precisely those who need it the most, since they become invisible in the eyes of the powers that be. As a result citizenship in Europe is turning into a ‘citizenship of personal circumstances’ – a figure of inescapable individualism imposed on those in need, who are thereby detached from other citizenry and branded out as not good enough in the eyes of the Union – leaving little space to the grand ideals of the past.

Biopunks

'“Let’s pull these technologies out of the ivory tower”: The politics, ethos, and ironies of participant-driven genomic research' by Michelle L. McGowan, Suparna Choudhury, Eric T. Juengst, Marcie Lambrix, Richard A. Settersten Jr and Jennifer R. Fishman in (2017) 1 BioSocieties 1 comments

This paper investigates how groups of ‘citizen scientists’ in non-traditional settings and primarily online networks claim to be challenging conventional genomic research processes and norms. Although these groups are highly diverse, they all distinguish their efforts from traditional university- or industry-based genomic research as being ‘participant-driven’ in one way or another. Participant-driven genomic research (PDGR) groups often work from ‘labs’ that consist of servers and computing devices as much as wet lab apparatus, relying on information-processing software for data-driven, discovery-based analysis rather than hypothesis-driven experimentation. We interviewed individuals from a variety of efforts across the expanding ecosystem of PDGR, including academic groups, start-ups, activists, hobbyists, and hackers, in order to compare and contrast how they relate their stated objectives, practices, and political and moral stances to institutions of expert scientific knowledge production. Results reveal that these groups, despite their diversity, share commitments to promoting alternative modes of housing, conducting, and funding genomic research and, ultimately, sharing knowledge. In doing so, PDGR discourses challenge existing approaches to research governance as well, especially the regulation, ethics, and oversight of human genomic information management. Interestingly, the reaction of the traditional genomics research community to this revolutionary challenge has not been negative: in fact, the community seems to be embracing the ethos espoused by PDGR, at the highest levels of science policy. As conventional genomic research assimilates the ethos of PDGR, the movement’s ‘democratizing’ views on research governance are likely to become normalized as well, creating new tensions for science policy and research ethics.

'Steve Jobs, Terrorists, Gentlemen and Punks: Tracing Strange Comparisons of Biohackers' by Morgan Meyer in Joe Deville, Michael Guggenheim and Zuzana Hrdlicková (eds) Practising Comparisons: Logics, Relations, Collaborations (Mattering Press, 2016) comments

In this paper, I want to reflect and shed new light on one of my current research topics: biohacking. While I have been researching biohacking for a few years now, to date I have not yet examined its comparative dimension. The themes I have investigated thus far revolve around the materiality, boundaries, and ethics of biohacking. However, so far I have not problematised or made visible the issue of comparison, despite the fact that comparisons abound in discussions about biohackers. This article is thus an opportunity to use a comparative optics to ‘make new discoveries’ (Yengoyan 2006) on a subject that I felt I already knew well. 

Biohackers are people who hack and tinker with biology. On the one hand, the phenomenon of biohacking can be easily localised (both temporally and spatially). The movement emerged in 2007/2008 and has largely developed in large US and European cities. On the other hand, in order to understand and analyse the phenomenon, comparisons with a wide and heterogeneous set of figures are made by science journalists and practitioners alike. For example, biohackers are concurrently compared to the following: seventeenth-century gentlemen amateurs; terrorists (whom Western powers usually locate in the East); the punk movement that emerged in the 1970s and their do-it-yourself ethics; and Steve Jobs and the Homebrew Computer Club. 

The term biohacking is used today to designate a wide array of practices including the hacking of expensive scientific equipment by building cheaper alternatives; producing biosensors to detect pollutants in food and in the environment; and genetically re-engineering yoghurt to alter its taste, make it fluorescent, or produce vitamin C. Biohacking mobilises and transforms both molecular biology techniques and the ethics of hacking/open source. As such, it can be seen as a recent phenomenon. Its emergence as a distinct and visible movement can be traced back to the past eight or nine years. In 2008, for instance, DIYbio (the first association dedicated to do-it-yourself biology) was created. Two years later, the Biopunk Manifesto (2010) was written by Meredith Patterson, one of the leading figures in the biohacking movement. In addition, at the time of writing this paper, there are a number of associations, laboratories, wikis, websites, and so on, dedicated to biohacking. 

The rise of the biohacker movement has caught the attention of journalists and academics alike. Academics have followed and analysed the movement since around 2008 (see Schmidt 2008a; Bennet et al. 2009; Ledford 2010), and two books dedicated to the subject have recently been published: Biohackers: The Politics of Open Science (2013), by science and technology studies (STS) scholar Alessandro Delfanti, and Biopunk: DIY Scientists Hack the So ware of Life (2011), by science journalist Marcus Wohlsen. In one way or another, this body of work has examined the ethics, risks, potentials, and openness of the movement. 

The geographical spread of biohacking – like its temporal emergence – can also be delineated. According to the main website in the field (DIYbio.org), there are currently eighty-five DIY biology laboratories in the world, of which twenty-eight are located in Europe, and thirty-five are in the US on either the east or west coast. There are now biohacker labs and biohackers in cities like New York, Boston, Paris, San Francisco, Manchester, Vienna, and in recent years, initiatives have developed in places like Japan, Indonesia, and Singapore. The political geography of biohacking (and consequently, the arguments developed in this paper) thus needs to be emphasised. The biohacker movement is developing in Western and Westernised countries; laboratories are usually located in urban or suburban settings; and English is the lingua franca for the majority of the websites, articles, mailing lists, discussions, and wikis devoted to biohacking. 

This paper focuses on how, and to what, biohackers are compared. This is a challenging question, for as we will see below, biohackers are compared to rather unlikely bedfellows. Not only are plentiful comparisons being made, but they are also drawn between different cultures and times, and between different – sometimes opposing – values and ethics. Unlike the ‘comparator’ which needs to be actively assembled, fed, and calibrated in order to provide comparisons (Deville, Guggenheim, and Hrdličková 2013), in the case of biohackers, comparisons are ‘already there’ and they are omnipresent. The frequency and disparity of these comparisons are what caught my interest in comparison and what compelled me to write this chapter. Why are such comparisons mobilised and why are such unlikely gures put side by side? What kinds of effects do such comparisons afford? How should we analyse these comparisons?

It is not unusual for hackers and computer programmers to be compared. Computer hackers, for instance, have been compared to public watchdogs, whistle-blowers, elite corps of computer programmers, artists, vandals, and criminals (see Jordan and Taylor 1998), while recent hacker networks like the Anonymous group have been compared to industrial machine breakers, and to Luddites (Deseriis 2013). The Homebrew Computer Club (initially a group of ‘hobbyists’) eventually became a group of ‘business entrepreneurs’ (see Coleman 2012), and Steve Jobs is today being compared to people like Thomas Edison or Walt Disney. 

Using biohacking as a case study, I will reflect upon and problematise comparison. The list of potential benefits of comparison is long, and it is worth mentioning a few, such as how they help to explore new, unanticipated routes; move beyond national frameworks by varying scales of analysis; and identify social patterns while highlighting the singularity of the cases studied (de Verdalle et al. 2012). The practices, methods, and problems of comparison have been discussed in a number of academic texts over the past decade or so. For instance, Richard Fox and Andre Gingrich (2002) have made an important contribution by revisiting and (re)theorising comparison. Arguing that comparison is a basic human activity that deserves academic scrutiny, they lay out a specific programme for comparative approaches. Differentiating between weak or implicit comparison, and strong and explicit comparison, Fox and Gingrich push especially for the latter and highlight their plural nature (2002: 20). The explicit focus on comparison has now become increasingly common, so that people talk of a ‘comparative turn’ in the social sciences (see Ward 2010). In this sense, comparison is actively engaged with, problematised, and theorised. This interest is visible beyond the Anglo-Saxon world as well. In France, for instance, two collections of essays on comparison have been published in 2012 alone: one is in the journal Terrains et Travaux (featuring on its cover an orange and an apple – a classic image that at once depicts sameness and difference, and is one of the chief challenges of comparison). The other is in an edited book called Faire des Sciences Sociales: Comparer (Remaud, Schaub, and ireau 2012). 

In this article, I want to draw on this body of work in several ways. First, I am interested in several authors’ emphases on ‘thick’ and multidimensional comparisons. Ana Barro, Shirley Jordan, and Celia Roberts (1998) have argued that comparison should be explorative, thick, and multidimensional. Jörg Niewöhner and Thomas Scheffer – who also argue for a ‘thick’ comparison – further emphasise that comparisons are performative in that ‘they connect what would otherwise remain unconnected, specify what would otherwise remain unspecified, and emphasise what would otherwise remain unrecognised’ (2008: 281). In a related way, Joe Deville, Michael Guggenheim, and Zuzana Hrdličková (this volume) talk about approaches that actively ‘provoke’ comparisons, while Tim Choy (2011) examines what comparisons do. 

Second, I do not want to ‘solve’ the issue of comparison, nor tell a coherent account of what biohackers are and what they are not. I am, rather, exploring the problems that biohackers and their identities entail. In this sense, I follow Adam Kuper (2002) who reminds us that we have to ‘begin with a problem, a question, an intuition’ (2002: 161). He further writes:

I remain convinced that methodological difficulties are the least of our problems [...] We lack questions rather than the means to answer them. What we need in order to revive the comparative enterprise is not new methods but new ideas, or perhaps simply fresh problems (Ibid. 162).

I hold that biohackers are possibly such a ‘fresh problem’ since their identity is somewhat ambiguous and unclear, and since the probable risks and innovative potential of their activities are currently being debated. Discussions about biohacking reveal that there are many uncertainties and that it seems diffcult to put their identity into neat categories. The questions that seem to drive most biohacking comparisons – Who are they? How can we make sense of them? Are they to be feared or hailed? – seem to have no clear answer. 

Third, I also draw on Donna Haraway’s and Marilyn Strathern’s ideas around ‘partial connections’ and positionality. In her discussion about situated knowledge, Haraway writes:

[h]ere is the promise of objectivity: a scientific knower seeks the subject position, not of identity, but of objectivity, that is, partial connection. There is no way to ‘be’ simultaneously in all, or wholly in any, of the privileged (i.e. subjugated) positions (1988: 586).

She continues:

I am arguing for politics and epistemologies of location, positioning, and situating, where partiality and not universality is the condition of being heard to make rational knowledge claims [...] Feminism loves another science: the sciences and politics of interpretation, translation, stu ering, and the partly understood (Ibid. 589).

In her book Partial Connections (1991), Strathern further draws on Haraway’s work and uses the term ‘partial’ to say that ‘for not only is there no totality, each part also de nes a partisan position’ (1991: 39). The trope of ‘partial connections’ can be – and already has been – engaged with in work on comparisons. 

For instance, Endre Dányi, Lucy Suchman and Laura Watts (cited in Witmore 2009) have compared seemingly incompatible field sites (a renewable energy industry, the Hungarian Parliament, and a research centre in Silicon Valley) and noted that there can be a ‘remarkable repetitiveness’ when these sites are connected through specific themes (such as newness, centres/peripheries, place, and landscape). Others have talked about ‘partial comparisons’ (Jensen et al. 2011) as a way to think about multiplicities while still recognising that ‘there exists no single, stable, underlying nature on which all actors have their perspectives’ (Ibid. 15). In this paper, I want to use these ideas in order to avoid one pitfall: the depiction of biohackers as a coherent whole that is able to be summated according to the different parts and comparisons reported in this article. In other words, the comparisons made can only be ‘partially connected’. I will thus refrain from taking an analytical view ‘from above’, one that is detached from what takes place ‘on the ground’. Instead, I will follow the actors themselves and consider their comparisons and knowledge claims to be valid and legitimate. In the remainder of this paper, I look in turn at four comparisons of biohackers (Steve Jobs, punks, amateurs, and terrorists). I will think with biohackers about comparison, rather than think about biohackers’ comparisons. In doing so, I not only seek to examine what comparisons do and produce, but I will also be reflexive and critical about my own previous research.