When I say that human beings write books, I mean two things: first, that last week’s e-mail from professor Merges reminded me to treat this text as if a human being wrote it, so I’m referencing video of professor Cohen as well as the book. Second, I hope we can return to the example of JK Rowling, and ask (or refuse to ask): what was she doing, day to day, when she wrote Harry Potter? Is our notion of individual, fictional novel-writing more of an exception to creation than a rule?
With those big-picture questions looming, a look at implications.
“Even if inspiration is every bit as unknowable as artists say it is, then, it still ought to be possible to say a lot more about the everyday practice of creative work . . . In other words, rather than asking what authorship is, we should be asking what those who work in domains of artistic and intellectual endeavor do on a day-to-day basis. What practices do they engage in while creating? Critically, how do interactions both with other people and with existing cultural artifacts inform creative practice?” 65, 66
This quote follows Cohen’s elaboration of the ways judges creep concepts of “authorship” back into copyright and creation decisions, even when authorship is not supposedly on the table. I paused when I read this, because it seems to me that “we” in the above quote suggests policy makers, who have a very different role from judges. Thus, a danger: I think “we” run a risk by comparing what judges are doing and which questions policy makers should be asking.[1] This danger runs two ways. First, I don’t know either way without evidence whether the questions judges are asking are central to the discourse and need solving, or whether they are merely technical fine tuning of the sort that can make a difference only in marginal cases. Second, the “authorship” situation should make us wary of beieving that any new policy we implement could totally reset the judicial framework.
With that said: policy. At a Berkman Center roundtable, professor Cohen was asked for her position on implementing her book in terms of technical policy and legal frameworks. Technically, she suggests, this would involve deleting a large amount of data (and overcoming our societal aversion to doing so). We similarly need to overcome a societal aversion—an aversion to arbitrariness—in law-making in order to implement the nouveau-copyright regime Cohen might have in mind. She says “in law, what this looks like, is just making arbitrary rules.”[2]
I. On the prospect of deleting a lot of data: I’m for it. After a certain amount of time (I don’t posit to have a proposal on that number), the anthropologic.com value of the vast majority of accumulating data on the internet will not outweigh the privacy and personal-statute-of-limitations concerns on the other side. Running out of space as I am here, if anyone in Group 2 is struggling to find a blog topic, the class might be interested in the implications of professor Cohen’s book on the way we think about the events in re Tyler Clementi and Rharun Ravi. As you probably all know, Clementi was a Rutgers freshman in 2010 when his roommate, Ravi, set up a camera in his dorm room to film Clementi’s romance with another man. Ravi let the video go public; Clementi committed suicide soon after. Maybe more interesting for our class, though: the later prosecution of Ravi on invasion of privacy charges draws largely on ichat conversations and twitter posts Ravi published about Clementi and his recording of him. Should gchat be reading us our Miranda rights?[3]
II. As to the legal framework:
Is an acceptance of the arbitrary unsatisfying? Yes. Professor Merges is on the edge of his virtual seat, hoping for more. I don’t find this acceptance of arbitrary rule-making, however, as coarse as it might come off sounding. In essence, it’s all arbitrary. My practical concern is that, if a copyright regime is made piecemeal, individual pieces of legislation will be increasingly likely to be influenced by lobbyists and industry. Cohen suggests we return to some elements of the 1909 copyright act, perhaps explicitly laying out different rules for specific art forms, instead of leaving the “any tangible medium” to the judicial branch. I don’t think this is such a bad idea, but non-political influence in drafting such a document frightens me. I look forward to hearing what you all think-
Comments