I still am not convinced that Merges fully "gets it." Whenever I see someone make the argument that "technology doesn't change human nature," my instinct is to get my back up. Human nature is malleable and has changed significantly over even the past century -- a blip on the evolutionary time scale. Arguments to human nature have been used by respected thinkers in the last fifty years to keep rights from women and racial minorities. Accordingly, I don't put much stock on arguments to human nature -- and unfortunately for Merges, his book relies on them heavily.
I don't think any of the "digital determinists" claim that the form of technology dictates completely the mode of social organization. But it certainly has some kind of profound effect, and Merges seems either oblivious or unconcerned with this. Does Merges think it's an accident that a wave of popular uprisings hit the Middle East at precisely the same time as camera phones and other technological connectors became ubiquitous there? Or that the recent exodus from the Mormon Church that coincidentally happened around the same time people got Internet connections in the Intermountain West, and were thus exposed to alternate histories of the church? And how does Merges explain the increased pace of cultural evolution, as evinced by the unprecedented rapidity with which gay marriage has been accepted by the American population (by way of comparison, acceptance of interracial marriage took about thirty years to accomplish what gay marriage did in ten).
I think Merges misses the forest for the trees in this regard: He takes too much interest in individual property rights, and not enough interest in broader cultural patterns. These latter developments are, in the view of "digital determinists," far more important. A medical researcher may be desirous of a property right in her drug -- and she would indeed be better off in the sense that she would able to monetize it -- but is not the extent of the theorized alternative: If there were no property rights to these things, some argue, then researchers could cycle through the innovation process more quickly. The researcher may desire a property right in her innovation, but she may prefer a world in which she has no property right but in which the state-of-the-art in medicine is advanced by ten or twenty years.
(It may be objected here that patents only prevent people from manufacturing the drug, not necessarily from understanding how it works. But science has always been heavily dependent on engineering, and if researchers don't have the materials to play with then they can't be expected to innovate. Even Einstein's theory of relativity, which we think of as a paragon of ex nihilo scientific advance, was only discovered upon because Einstein had access to measurements of Mercury's orbit, which were made possible by use of state-of-the-art telescopes.)
I also find odd Merges' repeated insistence on the Kantian autonomy of artistic creators. This seems to be a fundamental misunderstanding of what art is. Art cannot exist without a culture through which it can be interpreted and shared. I agree that there are certainly artists that would like very strong control over their work, but I don't think this desire is laudable or even realistic. A work of art that stands apart from the culture in which it is embedded seems to me to be precisely analogous to Wittgenstein's "private languages" -- in other words, chimerical.
Another concern Merges must account for is whether it's even possible to exert control over the digital sphere, where digital "things" are easily replicated (unlike apples!). I realize that Cory Doctorow's speech on the potential impossibility of Digital Rights Management was given after Merges published his book, but I can't see how Merges could possibly respond to it. Nor have I seen a compelling way to reconcile an increasingly alienated youth counterculture with a rigid insistence on Lockean property rights.
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