Opening the Discussion

This paper is the first iteration of part of a larger project to write a critical geography of information rights.  A premise of the project is that crafting an appropriate regime of information rights requires critical interrogation, using tools drawn from social and cultural theory, of prevailing market-based and rights-based approaches to understanding the way that creativity flows within society.  This paper considers the roles played by individuals in propagating and creating artistic and intellectual culture.

I’ll assume everyone participating in the mob has read the paper and just add three notes.

First, on the “situated user” terminology.  One colleague who read the piece in draft understood “situated” as a call for situation-specific adjudication of (more) copyright cases.  I’ve tried to make clearer that that isn’t my intention.  “Situated” is used descriptively, not prescriptively.  I tried to choose a term that would connote both the open-endedness and the contextual dependence of the way in which individuals experience and participate in culture.

Second, the brief outline of the situated user sketched in the paper is incomplete across (at least) one critical dimension: it doesn’t really address the physicality of users’ interactions with cultural artifacts.  That dimension is, I think, extraordinarily important, and its importance doesn’t disappear when cultural artifacts enter the realm of the digital (hence Joe Liu’s emphasis on the importance of the ability to control and manipulate copies, and my own refusal to reduce intellectual privacy concerns to the merely informational).

Third, although this piece is user-focused, I think that both the self and larger social patterns of information flow are equally important pieces of the puzzle.  In the next iteration, I plan to combine the “situated user” model with the social network-based model of creativity sketched in another paper (Copyright, Commodification, and Culture: Locating the Public Domain).  If you want to get a better fix on where I’m coming from, and hoping to go, take a look at Part III.D of that paper as well.

Comments

[David McGowan]

Julie--

My apologies if this repeats an earlier comment on the paper, but I wonder how the notion of situatedness will help answer any concrete question. Is there a policy question to which the concept of the situated user entails an answer?

Suppose we grant that all users are situated in your sense of the term. It is also true, I think, that they are situated differently along a wide range of descriptive characteristics, such as wealth, education, creative ability and inclination, exposure to types of works, and so on. It is also true that these descriptive differences can only be made coherent relative to some ends or purposes one wants to ascribe to the law.

If these points are true, I don't see how one could falsify the claim that any current law does or does not adequately account for situatedness. As Joe Liu has pointed out, DMCA prohibitions on tinkering mgiht suit the situation of passive users quite well, though not the situation of tinkerers. The reverse would be true as well. We might resolve that dispute, or disputes over p2p, by saying that allowing tinkering or widespread distributed copying will suit the situations of some without impinging on the situations of others because such policies will not reduce the development of new works, but that seems to collapse your concept of situatedness into the type of economic speculation it is designed to get beyond.

In support of your thesis, though, you could analogize to the 1st Am. difference between commercial speech and ordinary speech. The former is valued only for its informational aspect, which is why overbreadth rules do not apply and why compelled speech is allowed. In ordinary free speech cases, by contrast, both information and participation are valued, which is why the government cannot shut you up just because you repeat something already said.

I think it was the wonderful Arthur Leff who said it best: law and economics is a desert; law and society a swamp.

David McGowan

[Molly]

It's probably hiding right in front of me, but... where is a link to the paper? Thanks.

[Randy Picker]

The link to the paper was in a post, but it rolled off; I have now added a link in the Next Mob category in the left column.