Tech Policy Seminar

Life Finds a Way

Cohen's idea that some kind of "semantic discontinuity" is required for cultural advancement struck me as very apt, but I question whether this can lead to any useful prescriptive contribution because I'm not sure the absence of semantic discontinuity is even possible.  Cohen wants the law to actively create semantic discontinuities, but this seems to presuppose that the law is capable of creating an airtight, "seamless" framework in the first place.  I thought this presumption was uncharacteristically Pollyannaish of the work: In my view, semantic discontinuities will find a way to pierce through regulatory architectures in all cases.

I see this inevitable piercing of regulatory architectures as the most salient feature of modern political life.  I see Cohen's insight here as a kind of variation on Hayek's economic calculation problem: It's impossible to represent all knowledge in a system within a mere fraction of that system.  This epistemological problem is compounded in the political context, I think, by the state's monopoly of force.  Cohen seems to be very uneasy with allowing a large corporate actor (such as a government) unidirectional surveillance power over a population, but I'm not sure she appreciates how radical a position her "operational transparency" is.  I think such "operational transparency" is an inevitable result of government's fallibility, but these days, those who eavesdrop on the eavesdroppers are liable to be branded enemies of the state and locked in solitary confinement.  

I thought Meredith's worries about "learned helplessness" are intriguing, but I see no reason for the panic to spread.  Human flourishing has always been dependent on some technological knowhow or other ever since we left Eden -- that is, ever since we started earning our bread from the sweat of our brow and the glint of our farming tools.  We've moved from dependence on the ecology of the forest to dependence on the ecology of global human culture as brought to us by networked technologies, with a pit stop at feudal agriculture in between.  

Law isn’t Enough

As Meredith says, “our ability to naturalize technology is increasing rapidly.”  I, who once thought it was a crazy act to disclose personal information on the Internet, now unconcernedly upload lots of indecorous photos on Facebook.  Of course, however, I never cross the line.  My “friends” include colleagues at my law firm, lawyers at rival firms, my former students at law school, and even some of my clients. When I am on Facebook, I somehow feel as if I were in a public space.  Thus, my rule there is to act as such.  Partly because of this personal feeling, her way to illustrate the society with metaphoric expression with a spatial or physical sense seems very plausible to me.  I also very much liked the hypothesis of the Coasean filter.  A black box system that determines and suggests all efficient transactions will make our world choking.  We need a breathing room to nurture our creativity.  “[Everyday material practice] is what counteracts the innate tendency to naturalize the built environment”.

Seeing her dynamic image of our society and creativity, I begin to understand the limit of law’s ability to tackle the creativity issues.  Pedro’s point that law must be described with certainty and foreseeability is a totally right notion itself.  However, if our purpose is to promote our creativity and realize what Professor Cohen calls human flourishing, and not to create a system of written legal rules justifiable by liberal ideals, we have to grasp the reality as it is, rather than interpret it so as to make it fit into the mold of liberalism, and think of the best governance structure, not limited to law, to lead to human flourishing.  I personally think that law alone cannot create such a governance structure.  After all, law is a collection of rules to determine who has rights and owes duties, and (especially a statute) is good at declaring static status, but not good at addressing something dynamic – namely rapidly developing and naturalizing technologies and our interactions with them.  “Law may side with rigidity sometimes, but to align with it always would be to jeopardize an essential dimension of cultural vibrancy”.

In copyright protection, there seems to be a tendency to try to create a system perfectly free from any infringement or tampering.  Rights holders are much more eager to build a fence around the properties than the real estate owners.  But as the darknet hypothesis suggests, we have to know that such an attempt never succeeds.  In addition, certain activities of people to access or tinker the protocol or copyright may be desirable even against the will of rights holders.  In Professor Cohen’s opinion, “[u]sers who have the technical capability to do so may retreat to darknets or take refuge in black spaces not because they are up to no good but rather because architectures of control allow no other refuge.”  But we should also note that this does not necessarily lead to a conclusion that we have to prepare an exemption in law.  We have to figure out if the social value generated by the people who can retreat to darknets is not really sufficient, and balance what is gained and what is lost by the exemption.  In addition, we also have to note that such an exemption is likely to end up being too broad to include what should not be included in an optimal situation, or too narrow to exclude what should be included, given that the rapidly moving nature of technologies and ourselves becoming to deem them as given.

Although Professor Cohen says Professor Lessig’s idea of the code is “even far too simple regarding both instrumentalities and effects”, I think both of them are basically towards the same direction.  To create a governance system truly in line with our network reality, we may have to see our liberal legal system as a relative concept.  Finally, Professor Cohen’s weak point may be that, while her book delivers some truth to the readers in an intuitive manner, her view cannot be demonstrated with numbers, unlike economic analysis based on utilitarianism.  We tend to be stubborn when forced to change or even slightly adjust our fundamental values, while we are sometimes very vulnerable to math or even cheap arithmetic.

Problems Arising out of Technical Inexpertise

                Professor Cohen repeatedly emphasizes the importance of allowing individuals greater access to the technical protocols that constitutes the infrastructure of networked space.  I couldn’t agree more with this principle, and defy anyone to seriously argue on general grounds that the design decisions shaping our public and private spaces should be removed from public scrutiny.  However, in thinking about how to transform this principle into practice, I’ve been struggling with a number of obvious problems.  Meredith already touched upon one: the technical incapacity of users.  Jessica focused on another: unevenness in the distribution of technical ability.  I’ll give you my thoughts on these two issues, and also a third: the seeming impossibility of breaking the control of the technical elite through increased technical education.

                As Meredith rightly notes, the technical ignorance of users will prevent them from sensibly parsing technical protocols or (god forbid) contributing to standards processes.  This ignorance arises out of a combination of factors—lack of interest, intelligence, education, or creativity—and I cannot conceive of a way to successfully combat it.  Meredith suggests teaching children basic programming—that would be ineffective for at least three reasons.  First, our public education system is not up to the task; our public schools routinely fail at their basic goal of rendering children literate and numerate.  Second, a rudimentary understanding of one language would likely be of little assistance to one parsing the universe of networked space.  Third, network systems are complex because the problems they must confront are complex.  To analogize, teaching a kid phonics isn’t going to help him parse Pynchon.  However, though I criticize Meredith, I can’t for the life of me think of any solution.  Perhaps what Cohen intends is that experts summarize and publish the policy decisions underlying their technical standards?[1]  This is essentially the policy that we’ve adopted in every other aspect of governance—and frankly it doesn’t to work very well.  (Look no further than debates over the tax code for evidence of this unfortunate phenomenon).

                The difficulties of educating users brings me directly to (a variant of) Jessica’s point—if accessibility is contingent on technical competence, then we should be seriously concerned that certain demographics will be locked out of the human-flourishing bonanza to be unlocked by Cohen’s policies.  Alternately, consider a related variant of this concern: how do we develop an education program that will impart technical competence without inculcating acolytes into patterns of thinking that insist on particular technical solutions?  This problem of achieving education without inculcation is actually broadly implicated by Professor Cohen’s book, insofar as one of her primary arguments is that legal thinkers have been blinkered in their approach to technology policy by an unconscious allegiance to liberal political theory.  I suppose at root my objection is just a restatement of one of the core concerns for any self-governing society, namely, how do we ensure an educated citizenry without treading on individual freedoms.[2]

                We can also view Jessica’s point from a perspective in which standards processes are analogized to a participatory democracy.  Professor Cohen readily embraces the notion that network standards and protocols have political implications,[3] a stance that motivates her support for broader participation in the processes that generate such standards.  My concern is that, even if society does make every effort to improve technical literacy for the masses, many will be excluded from the quasi-democratic standards processes.  This would be of little note if the exclusion were random, but in fact all signs point to systematic exclusion along lines of race, gender, and perhaps even ideological orientation.  Given economies of scale, inevitable network effects, and the fact that those excluded from the process are by definition the very users who can neither articulate nor generate alternate standards or protocols, I’m afraid that I don’t see how we can pry this apparatus from the hands of the technical elite.  At best, it seems as though we could increase the number of the technical elite.

                 Finally, having exhausted the topic that is the substantive focus of this post, I’d like to briefly address the criticisms of Cohen’s style that have been advanced by my peers (betters, perhaps).  Professor Cohen presents her ideas in dense language, making frequent use of technical vocabulary.  I think this was entirely appropriate, and indeed necessary.  Part of her initiative in the early sections of the book is to inject highly relevant research from the social sciences into the legal discourse.  An essential component of much of this research is the vocabulary that it has developed; we create new words because we need a way to talk about new concepts.  Flattening those concepts into the stale language of law would be entirely counterproductive, because it would obscure many of the distinctions that these new fields seek to highlight.  That’s my thought on the matter, anyhow.

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[1]      While this would also solve Aaron’s worries about providing a “roadmap for work-arounds, which compromises security,” I’d like to register my strenuous disagreement with Aaron on the ideological underpinnings of that argument.  Let’s just say that I side with those who use “security through obscurity” as a pejorative.  I think it’s foolish to expect that obscurity can be maintained (hopefully Google’s security wasn’t predicated on such a pipe dream).

[2]      I may have left out some intermediate steps in this argument.  If so, I apologize for the lack of clarity.

[3]      I read the CC-licensed version of her book, so my pagination is screwy.  See her discussion of standards processes in Chapter 8, discussing “the political implications of network standards and protocols” and describing the authoring of standards in terms of “governance.”

As I finished reading Cohen's book Reconfiguring the Networked Self, I kept being reminded of one of my favorite books, Boomsday.  Boomsday tells the story of a blogger who runs for President with the platform of incentivizing older Americans to kill themselves (or as she calls it "transitioning") by age 75 to help solve the Social Security problem.  But what is most relevant to our discussion in class is an invention the protagonist's father develops and makes his fortune on: Spider Repellent software.  The software's function is to find and erase web pages that correspond to a certain set of keywords.  Corporations and individuals use it to essentially erase any Google search results that would negatively reflect on them, like if Gary Condit wanted to eliminate any web pages referring to scandal or Chandra Levy or intern disappearance.

If such technology existed it would have a huge impact on the world as we know it.  But in some forms or another, it already does.  I believe it was Jessica who in week 2 of Strahilivetz's book discussed the "right to forget" in bankruptcy proceedings and what implications that could have in other scenarios.  Cohen mentions Michael Curry and Leah Lievrouw and the "ecologies of forgetting."  And we were all vocal last week in discussions surrounding the potential politician who keeps incriminating photos captured from facebook.  

With the advent of technology, media storage, increased surveillance, and the world wide web, this creates an environment there's not a lack of information resources so much as a lack of access to it.  Cohen describes search engines to borders, which I find a fitting comparison.  In my post last week, I tried to discuss how income equality and unequal access to technology based in large part on class serves as an additional border to information access.  I believe Jessica and Meredith's posts this week also show how gender and age relate.

Cohen states that "networked information technologies shape our perceptions of reality more comprehensively than simpler artifacts do" (p199).  She also finds that "levels of access. . . become defining conditions of privilege" (p206-7).  I was pleased with her discussion of flows of information and its effect on social meaning, and Jonathan Zittrain's "tinkerability"  idea.

We really are the product of the information around us.  And as I discussed in my post last week, the internet has the powerful ability to use availability of information as an equalizer, as does pop culture and mass media.  But with this also comes cost.  There will be an inherit inequality based on access to the "raw materials necessary for social and cultural participation" , regardless of the IP system in place.  And I feel Cohen's discussion on operational transparency can not be understated.

Gary Condit didn't need Spider Repellent software to make people forget about his scandal involving the disappearance of his intern Chandra Levy.  The news of 9/11 pushed the story out of the limelight and out of the public's minds.  Before travelocity replaced travel agents, there was a lack of operational transparency that allowed airlines to sell higher priced flights based on complexity of pricing mechanisms, business deals, and the software that gave priority to certain search results.  Limp Bizkit and other artists have been known to pay radio stations to play their music in order to generate attention and sales.  My undergraduate education in politics and the media, as well as the Daily Show, constantly reminds me of the role the media and 24 hour news cycles have on political elections.  And winner-take-all literature has explored how factors unrelated to level of talent and quality of work can be the reason a certain author or musician can be propelled to star status based on timing and luck.  

Perhaps the self-regulating market economy is a fiction, as Cohen states on page 269.  Thankfully, the market for search engines has led to Google to commit to selling "advertising, not search results" (http://www.google.com/honestresults.html).  But there is much to be said for the power of sorting mechanisms to shape "cultural environmentalism."  And I applaud Cohen for saying so much in her discussion of trade secrets, the FOIA, facebook, pop culture and so much more.

Geographies of Physical and Networked Spaces

Like Aaron, I had to think about what the geography of networked spaces means. I'll do my best to summarize what I think Cohen is getting at, and then I'll provide a concrete example.

We are very familiar with the geography of physical space. If I want to talk to Aaron about his post, I can’t just say what I’m thinking as I sit in the computer lab –he can’t hear me. If we meet in the Green Lounge to talk, I can tell him what I’m thinking. In the physical world, geography determines who can hear what I have to say. So if I talk in the computer lab, Aaron won’t hear me (and the other people in here would). If I talk to Aaron in the Green Lounge, he will hear me, and it’s likely that a different set of other people will too.

An article in Sunday’s New York Times, A High-Tech War on Leaks, touches on the geographies of networked and physical space. New developments in surveillance technology allow the government to more closely monitor government employees with security clearances. Information from that monitoring is also used in the prosecution of leaks. These changes have “unsettled a decades-long accommodation between national security and press freedom.” Traditionally, government “did what it could to protect its secrets but exercised discretion in resorting to subpoenas and criminal charges when it failed.”

The Obama administration has prosecuted more media leaks by current or former government officials than every previous administration combined. The administration says that the increase in volume is due in part to the increased availability of evidence about leaks. An unnamed Justice Department official noted that “… prosecutions of those who leaked classified information to reporters have been rare, due, in part, to the inherent challenges involved in identifying the person responsible for the illegal disclosure and in compiling the evidence necessary to prove it beyond a reasonable doubt.” (For example, John C. Kiriakou is a former C.I.A. agent accused of disclosing classified information to the media about the capture and interrogation of an Al Qaeda operative. The criminal complaint against Kiriakou says it is based largely on “e-mails recovered from search warrants served on two e-mail accounts associated with Kiriakou.”)

Because the geography of networked space is different from the geography of physical space, it has become much easier for the government to monitor information in the networked world. As Cohen says, networked space is “glocal” in it “simultaneously collapses some scales and renders others inconceivably large” (page 191).

In the New York Times article, Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, described a recent conference about government secrecy. At the conference, a national security representative told her that it will become increasingly rare for the government to rely on subpoenas in the prosecution of leaks. Paraphrasing the national security representative, Dalglish said, “We don't need to ask who you're talking to. We know.”

The article concludes that the solution for reporters is to “adopt Mr. Woodward’s methods from the 1970s,” referring to Bob Woodward’s meetings with his source in a parking garage. A former Justice Department spokesman advises government officials “to meet a reporter face to face, hand him an envelope and walk away quickly.”

But these strategies may not work, especially in light of Cohen’s discussion of surveillance strategies on pages 164-170. Networks have made it easier to monitor movement in physical space (like a parking garage), and they have also made it easier to collect and analyze that information. Because of this intersection between physical and networked space, the solution can’t be as simple as returning to the physical geography of the 1970s.

The market-libertarian approach and privacy

    I want to begin by saying I liked the second half of Professor Cohen's book significantly more than the first. This might be in part because the technical discussion resonated more with my background and interests. I would like to focus this post on one particular argument presented by Professor Cohen, about why the market-libertarian approach fails to properly explain the current practices in the area of privacy. Professor Cohen observes that a market-libertarian rationale depends on a certain degree of noninvolvement by the government, which is not the case when it comes to privacy. While I believe Professor Cohen's observation that the interplay between private (corporate) actors and government undermines the application of a market-libertarian explanation is both strong and interesting, I think another factor bolsters Professor Cohen's rejection of the market-libertarian approach: the individuals' lack of information and understanding. 

    I am no economist, and forgive me if I am mistaken, but I understand that an efficient market is in part premised on the availability of information to the participants in the market. A transaction is less likely to be pareto-efficient unless both parties understand the cost and value of what they are exchanging. In the case of privacy (and we are, ironically, discussing a market for information), the issue revolves primarily around two markets: on the one hand is the market between individuals and providers of services (Google or Facebook to name two well-known examples); on the other is the market between the providers of services and companies who use the former to advertise their products.

    I don't think anybody is troubled by the transactions between the corporate entities. But I think there should be a concern with respect to the market between individuals and service providers. While these issues have received a lot of public attention in recent years (especially with fiascos like the Beacon program, mentioned by the author), it isn't clear that people understand what providers do with the data they collect. In fact, the lack of understanding of these issues by consumers takes place at many levels: first, individual users might not even realize their private information is collected at all; second, they might not realize the level of detail or the extent to which data is being collected; third, they might not realize to what purpose this data is being used or shared; and finally, they might not understand the consequences of the distribution of their private information. Being somewhat of a geek myself, I think I understand the first three, but I'm not sure even I understand the last one. I realize a lot of information is collected about me, but the consequences of what might happen to that information in ten or twenty years are hard to predict. But if anything, I understand that there are potential risks to handing this information to companies like Google or Facebook.

    Most people probably don't even realize that their email is being scanned to provide them with targeted advertising. Of course, the emails themselves aren't being shared with anybody, but a lot of personal information can be extracted: age, interests, etc. Would these individuals be using the same email service if they knew that their information was being collected, analyzed, and perhaps even sold? Sure, companies provide Terms of Service that make it clear that they connect and use personal information about their users, but who actually reads the TOS? 

    My point is that if consumers don't understand the product they are paying for, or even that they are paying for it, it probably is not an efficient market. This argument might be simplistic, but I think it bolsters Professor Cohen's point that the market-libertarian approach is not sufficient to state that our current practices in privacy are the result of an efficient market.

The Big Picture

This week, I’m going to try to focus on the big picture, although once again, I have to say that doing so is no easy task. This is partly due to the fact that we have not read the body of literature that Cohen is contributing to, but I stand by my criticism of the way in which this book was written. 

From what I could piece together, Cohen’s argument in the second half of the book was premised on the idea that we need a new way of thinking about network architecture that takes into account emerging social and institutional patterns. In doing so, Cohen suggests that we focus on the everyday practices of individual users particularly how users experience information networks and resources. Only after understanding the user experience should we tinker with the network architecture. There are three components of network architecture that capture Cohen’s attention: first, the accessibility of networks from the user’s perspective; second, the emergence of architecture of control that alters the “experienced accessibility” of the network’s resources and spaces; and third, regimes of authorization that may inhibit the play of everyday practice. 

The penultimate chapter takes up these issues and proposes that there are three conditions necessary to human flourishing in a networked world:

(1) Access to Knowledge

This is a basic component and the one that Cohen spends the least time on, in part because this condition seems to be widely accepted. Her point, though, is that access alone is not enough—human flourishing is not protected if you stop here. 

(2) Operational Transparency

Cohen advocates disclosure of critical components of a network’s structure and organization so that individuals will know how the network might be affecting their own experience and using the information they provide to it. As such, Cohen suggests that we require disclosure of surveillance processes and what she calls the “geographies of accessibility” (which I take to mean the things that are and are not accessible to the everyday user on the network). Finally, she suggests that networks be required to disclose the process by which they set general network standards, the assumption being that transparency of process will either improve the end-product or at least make users aware of when the product is likely to be unsavory.

(3) Semantic Discontinuity

I had a hard time understanding this argument, but Cohen’s suggestion seems to be that some things should be left purposefully vague to allow for users to experience a spectrum of institutional and technical frameworks. By this view, seamlessness, continuity, and rationality are not virtues; rather, they stifle opportunity for play. In three subdivisions of the section, Cohen further argued that copyright protection be narrowed to allow for an increased scope of lawful personal use, that attention be paid to difference in individual and group boundary management, and finally that greater scope be given to play (lest it be lumped together with piracy). 

I don’t find anything particularly objectionable about the first and second conditions above. If our end goal is to think about the user’s experience on a network and come up with network structures that prioritize that experience, access and transparency are certainly virtues.

I’m a little more hesitant when it comes to Cohen’s idea of semantic discontinuity. For one, as I mentioned above, I’m not sure entirely what the term means. If I’m right in thinking that it means we should make a conscious attempt to create networks where users’ rights and network boundaries are be left undefined and ambiguous, then I’m inclined to disagree. Users are better served by clarity and consistency both within and across the networks they interact with. Seamlessness, continuity, and predictability lower the costs for users who are not tech savvy and who are dependent on their networks rather than committed to the kind of boundary-pushing play that Cohen praises. Cohen’s argument, it seems, is that all the world’s a playground, and all its men and women merely children. In doing so, it seems to me that Cohen is prioritizing a segment of network users at the expense of everyone else.

 

Configuring My Networked Self

I am going to abide by the golden rule here. If I were a well-respected law professor, I would want the honest feedback that is to follow. I apologize (sincerely) if Professor Cohen does not feel the same way.

1. Beginning with the negative. The book is written in a fashion that very few people aside from Professor Cohen can possibly understand. The text is difficult to sift through, and the ideas do not seem to have a really coherent structure. In short (because I do not want to spend my time criticizing someone who was brave enough to publish a very intelligent work on a very difficult subject) I do not believe that Professor Cohen's book is a worthwhile read for non-academics. In fact, this may not be a criticism at all if there was no intention for the book to appeal to a wider audience. Regardless, this issue is one to be taken up with the publisher. I want to move on to a discussion of the substance....

2.  “the design of digital architectures reflects beliefs about rational social ordering that are not themselves given.” (p. 185). We design things as we see fit. Nothing is given in this world, and Cohen admits this fact throughout her discourse. We can only do our best to approximate the "social ordering" of things, and to adapt our technologies accordingly. Should we be proven wrong, we adapt further. There is no use in reconceptualizing rational social ordering simply because the design of digital architectures is predicated on beliefs about that ordering. These things take on a natural evolution.

3. “a growing constellation of factors- business models, legal doctrines, and accepted design practice- operates to diminish the technical accessibility of the network, obscuring important aspects of the structure and operation of the networked information environment from those who inhabit it.” (p. 193) I had difficulty with this passage for two reasons. First, I am not sure I understand what it means, and second, I am not sure what the implications are. I took this to mean that a number of factors are complicating technical accessibility of the network. If this interpretation is correct, the I disagree. Devices like the iPhone and iPad have made technical access much easier for the lay person like myself. Previously, I was unable to realize the full potential of internet access simply because I was not savvy enough to understand the technical complexities of the code required to engage in more complex tasks than simply web surfing. Now, I have hundreds of apps at my disposal (many of which are free). I can play games over the network, locate whatever I need in whatever area I'm in, speak with whoever I want whenever I want, and most importantly, I can configure my "networked self" with relative ease. Just because I may not understand the underlying technologies doesn't mean I have restricted access. And I am just the first generation of "app" users. Imagine what the next generation will be capable of understanding and producing.

4. “the widespread use of information-based authentication and the resulting heightened risk of identity theft create pressures for even more identification and authentication.” (P. 168). I thought this was Professor Cohen's best point in the book, and a really brilliant one. I would equate this network problem with a real life parallel: distrust breeds distrust. 

5. “In Europe, where data protection laws are stricter, there is less private sector trade in personal information, but also more government freedom to collect and store data about citizens.” (P. 167). Another very interesting point from Professor Cohen. The differences between Europe and the US with regard to data protection are seemingly very important. Who do we trust more with our personal data, private industry or the government? Although I can't be sure, I know that the government has done a pretty good job over the last hundred years with protecting the information about its citizens. We rarely have instances of data breaches (though these have increased in the internet age). We have never, however, experienced a world where private industry possesses our private information on such a large scale and therefore, we have no precedent in this arena. I think this passage illustrates an important choice we have to face as US citizens: are we willing to give up personal information without any guaranteed returns?

6. “devolution of surveillance capability into private hands enables greater control than government could achieve directly.” (P. 178). I agree generally with this point, but I don't think it has much value for us citizens unless there are things that private companies can do that the government cannot, by law, do itself. Should this prove to be the case, we may find ourselves in a situation where power shifts to the private industries that can best control/monitor the population. However, if there is nothing private industry can do that government can't, we shouldn't be worried about the devolution taking place. The more important issue is whether the surveillance capability becomes a self-propelling mechanism (ie questionable behavior causes greater surveillance, which itself causes greater surveillance). We of course do not want to end up with a police state, and especially not a police state with no government-related, accountable people at the top. 

7. “the play of everyday practice thrives when openness and closure are in balance.” (P.260). Statements like these are what frustrate the reader into an inquiry that need not take place. How about qualifying this statement with some discussion of exactly how much or what kind of oppenness and closure we are referring to?

8. “The possibility of harm from unpredictable future events is an unavoidable fact; to undertake any prospective enterprise is to confront risks of all sorts. Strategies focused on the elimination of gaps in informational frameworks can magnify risk, either by exacerbating preexisting dangers or by creating new ones.” (P. 271). The pessimism comes through. This is where I fundamentally disagree with Professor Cohen. She seems to find no win-win in this new networked world, whereas I see a win-win (using the exact same analytical frame work as she uses). Professor Cohen engages in such a brilliant, convoluted argument, and yet ends her book with a sort of "c'est la vie" statement. Eliminating the gaps is exactly what the internet is for. Its purpose is free, and comprehensive information flow. It is designed to promote that flow. Of course everything in life comes with some drawbacks, but it is not helpful to anyone for Professor Cohen to make sweeping statements like the one above. Let's get real with it. What preexisting dangers do you see? What potential dangers do you foresee? Please do explain these things Professor Cohen, for without anything concrete, you have cast an unexaminable fear in us.

 

I do not purport to know anything more than Professor Cohen does. In fact, I purport to know A LOT less about the issues she discusses. One thing I do know though, is that books like this can tend to create more unknowns that knowns, and we as a society should see Professor Cohen's book as an extremely valuable piece of evidence that we don't know anything about how best to address the issues we are faced with yet. If a brilliant professor, writing at the level of Professor Cohen cannot adequately frame the problems we must combat, then we should be wary of taking any drastic action until we can more fully understand those problems and what we want/need out of any proposed solution. I am happy I read the book, but this, my last critique is one I hope Professor Cohen will take to heart: The "networked self" is one of the most important issues of our time.  We are desparate for a torch bearer to lead the way through an overgrown forest. We cannot afford to have our society's most intelligent minds publishing books like this that are almost entirely inaccessible to the general population. We need people like you Professor Cohen to write for the masses, to give us some guidance where little exists. The more time passes, the more difficult the task we face as technology is improving at an exponential rate. My critique of your book is not a critique of you as a person or an author or an academic, so much as a critique of our system that produces brilliant thinkers who don't reconnect with their roots. 

I hope I have not offended, but I have given what I myself would want given to me.

The Digital Divide

 

Remixing... well... I'll stand on principle, thank you very much!

Some pleasantries to start off with… this blog has been real great fun… at least for me it was. The discussions we had in class were, as far as I am concerned, perceived as terrific. And in this final post I am glad that, not only I, but also Ryan feels like he stood up of IP rights during the quarter… cudo’s!

 

This being said… I want to start by saying that I did not like the book one bit. But that hardly comes as a surprise I think. And the pity of it all is that it is not only one I don’t like because of the ideas put forward, but also because of the way in which they are put forward. But then again that is me.

 

Now, to my post for this week. Although I think Ryan feels, just like I do, that we should protect IP holders (at least a bit), I found Ryan’s following comment rather interesting:

 

“Much like the first sale doctrine in copyright, once a product is sold, I do not think a company should have the right to tell you how to use it (with an exception for products like computer software in which the market would collapse without such a right).”

 

Interesting, but in my opinion (and please, don’t be offended), not very precise. At least, that is what I think… and I may be wrong. When reading this provision (http://www.law.cornell.edu/uscode/text/17/109), I find a moment of fond remembrance to theories we have in the EU. Still, for me this provision means a different thing than it does for Ryan I guess, at least when comparing it to his quote.

 

In my opinion we should restrict the application of this provision to purely commercial matters. Limit, in other words, the altering of copyrighted work to situations of “fair use”. Put it differently, this provision should only be intended to stop the exclusivity held by an IP holder (in this case a copyright holder) to spill over to secondary commercial markets. This provision, just like the theory of exhaustion in the EU, exists for the reason to make sure someone does not invoke his/her IP rights to prevent parallel import or re-sales that might undermine minimum resale prices and the like.

 

For example… I am a cosmetics company from France. By definition my product is of so-so quality for a high price ( J ). I want to penetrate the Romanian market. You know how that’s like, it’s a new member state of the EU, and I want a presence there. What I do is, is that I consider the fact that people who live in Sofia do not have the same purchasing power as Parisians (just like New Yorkers and other people I guess J). And then, you get this smartass distributor who buys cheaply in Romania and sells cheaply in Paris. I cannot, in the EU, invoke my IP rights to stop this sale. And that is all this provision in the copyright act should actually mean.

 

In other words, it is in fact splitting the intellectual property and the physical property, which are often packaged goods. It is saying that one can dispose of the physical property of an IP-protected thing but not dispose of the IP-protection as such. And in my opinion, that is just the way it has to stay.

 

And then Ryan goes on and basically extrapolates the theories to more highly sophisticated technological products and instances… and then of course… given the reality in which we live today… a hard-liner theory like the one I described above is a bit backward. I remember being nerdly obsessed with playing Flight Simulator. What I did back then, was to download new airplanes into my game. Don’t ask me how, I don’t remember at all… And if you think of it, given the abovementioned theories this is a fringe case. Well at least I did not sell my improved FS, right? But what if I did… The question I am really asking, and so I oppose Ryan, is to know if I should stay a hardliner on this? Yes I will…

 

When I read Cohen at page 247… well I am shocked actually. Because in my opinion her argument makes no sense at all for different reasons which I will try to highlight here:

1. First of all I think we should always try to distinguish between physical property and IP on a copyrighted work. I can buy Prof. Picker’s reader for antitrust and perhaps resell it if I think it is of lesser quality (did I really? J). That is disposing of the property sold to my by the Professor. No problem, right? Of course not. But let us not forget that the very way in which he presents the readings for his class is his own choice. He chooses how to sell them to us, and rightfully protects that way of presenting. Are we to alter it? In fact, any copyrighted sale is in my opinion a package sale of the physical property and the IP protected property. IP should be taken as a given and not be changed. That has been the backbone of IP protection for decades. As a matter of principle I think we should not change that.
2. A second set of, more economically oriented, critiques that I have look at the feasibility of it all. Can you list what is allowed to be exclusively protected in advance? Aren’t you excluding away elements that might be of economic interest? Are you making the right choices? Why fanwork and not other works? Are we in a position to judge? All questions that in my opinion make enumerations utterly burdensome and inefficient. Secondly, working on an ex post basis gets you in endless fait-accompli discussions that are not very helpful either. Thirdly, if we would even allow remixing for example, to be commercialized. Let us assume we throw all the above overboard and follow suit with what Cohen is respectfully proposing, how do we allocate commercial profits. Or are we just going to neglect that if I pimp Prof. Picker’s reader with fancy highlighting and witty comments, and I resell them for double the price I get all of the profits? And if you don’t accept that, and see that some of it must go to the Professor… that of course is the only correct thing to do, how will you account for that? Just think the transaction costs this would implicate…
3. And let me just add what I think of the idea of having courts check if the rights of IP holders have been safeguarded on an ex post basis… Well do I really need to say it?

 

Our current system is not good at all, it is not equipped for our  Tech Era… but again I do not see the satisfying alternative either. I am sorry… but I don’t.

 

Attacking Freedom Part Two

“We accept without question that new drugs should be evaluated for their effects on human health; so too, new technologies should be evaluated for their effects on human flourishing.” 

 

To me this is a better starting point than looking back to the liberal tradition of property rights for standards in copyright (I, like Ryan, do think of patents differently).   So, what to do?  I’ll start with some sub-goals.

 

Sub-goal 1: Jessica’s points are well taken.  In the framework Cohen endorses, the current makeup of the technological elite will need to diversify.  I prefer to focus on class. Given that priority (with which I understand you may disagree), how do we go about that diversification?

 

Sub-goal 2: As Cohen suggests I believe we need to create varied copyright rules based on the medium of a particular creation.  Folding some elements of the 1909 Copyright Act back into our copyright quilt, we should evaluate a particular medium’s effect on human flourishing (of which I believe tax revenue and GDP factors, though not the only factors) and create particular copyright rules for that medium.  I think Jen has little reason to fear a certain arbitrariness here; outside of some lobbying considerations, this particularizing process is no less dangerous than putting all medium under one umbrella.  So I add to the question: how do we decide copyright policy in a particularized world?

 

Possible Solution: Bear with me, because I need to temporarily reaccept the creator-consumer distinction for the purposes of this argument.  Consider three forms of media, in which consumers and creators need differing forms of preparation to participate.  Movies (except The Artist) necessitate the ability to use language, books necessitate literacy of a more developed kind, and the enjoyment of modern painting requires money and maybe a pretentious degree in art.

 

Input needed to create or enjoy certain media:

 

Media Type: Party:	Movies	Literature	High-end Painting
Producer	Wealth, time, effort, arguably strong copyright	Time, effort, arguably copyright	Time, effort, arguably (see Angus) no copyright
Consumer	Basic language skills, baseline disposable income	Substantial literacy, baseline disposable income	Extreme artistic literacy, quasi-decadent wealth

 

From a Lockean standpoint, we might be tempted (it seems like we do?) to reward the film industry with the greatest government investment in the protection of copyright; reward should match labor.  This makes economic sense, too: we should invest in protecting the copyright of the revenue-generating giant, the film industry.  Great paintings sell for a lot as well, but they are mobile in creation and sale—I can’t even imagine how sales tax at those auctions plays out—and the consumers are wealthy and sophisticated enough to develop systems of copyright protection themselves.  This, I take it, is Angus’s point: consumers will reward originality on their own accord.  I generally vehemently disagree with that idea, but in the context of haute peinture it might hold.

 

What about starting from Cohen’s primer, though?  Our concern being human flourishing, we want to encourage play.  Furthermore, I think we should encourage the proximity or potential fusion between producers and consumers.  Why?

1. The easier it is to move from consumer to producers, the more incentive consumers will have to try their hands at production (keeping monopoly rewards for the output aside).
2. The easier it is to move between consumer and producer, the more incentive producers have to maintain quality work.
3. Most important: because a fluid movement between creators and users keeps producers on their toes and consumers active and engaged, the overall body will be better at discerning the quality of outputs.  If you want a very efficient market to reward quality, incentivize the consumers to be educated and active.

With these ideas in mind, let’s tinker with copyright.

 

If we reduce copyright protection by statute, we’ll get different results in all three mediums.  This is absolute and pure speculation:

 

Three forms of media in a world with shorter copyright / Effects on producers, consumers

 

Media Type:     Party Affected:	Movies	Literature	High-end Painting
Producer	Substantially smaller investment into movies and/or much higher prices	Somewhat smaller investment into books and/or higher prices	Less certain effects on investment and price
Consumer	Less movie attendance, arguably more play,	Arguably more play, arguably people buy fewer books, unclear	People take more pictures at museums? Unclear effects

 

A lot of conjecture. Forgive me.  My essential point is this: if our goal is human flourishing rather than a rights-based liberal theory of rewarding and incentivizing creation on the front end, we are going to need to treat different mediums differently.  This is because copyright has varied effects on different mediums, and different mediums enable or discourage human flourishing.  You may debate the content of the above charts, but I hope you’ll at least work through filling them in yourselves.

 

Thanks for reading, friends.  It’s been a fun blog.