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.
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