Wake up! There is no answer.

Aside from the fact that the book is ... serpentine in its choice of vocabulary, the author hits the nail right on the head by pointing out that the problem with the copyright system is that it is based on assumptions about creativity that are outdated. Thus, the system constrains creativity by being over-rigid and blind to the creative forces that drive creation 

How should we promote creativity then? And what is creativity, how does it happen? She asks. She asks the right questions. To asks these questions, she assumes from the get go that the profit incentive rationale for the IP system is at best incomplete. Her more humanistic framework for internet policy is founded on “human flourishing.” Elaborating her framework, she uses words like “ecology” and “Foucault,” the mere mentions of which solidifies her left-wing credentials and suffices to conjure up in one’s mind, no, heart, a systematic critique of the oppression and isolating control the menacing system imposes on the post-modern liberal individual, and heck, probably mother nature as well. She goes on to challenge the reductionist, simplistic, and viciously Manichaean black and white dichotomy of the for/against creativity rhetoric that advocates and critics of IP policy so routinely fall into. 

All of this appeals to me very much, as it seems to have appealed to Robert and Nick, who are card-carrying anti-establishmentarians. Indeed, identifying culture and its creation with “ecology” vividly illustrates the complexity of culture, and the inability of any law to restrict or comprehend such complexity. And so I believe, it should not pretend to.  

Cohen’s explorations though, lead her down precisely that path, which presumes that the law should comprehend this cultural creative ecology, and with the help of the social sciences, discover some optimal or useful formulation of policy that would encourage “human flourishing.” In this process, she encounters two problems that she may not have been aware of or expected when she began her undertaking. Her supporters in the class face the same problems.

First, she fails to admit that some people simply do not wish to get into a discussion of how culture is disseminated and created. These people do not want to bother with any inquiry into how creativity happens, or how we should value it. They trust in the profit motive, the power of owned ideas to generate profit, and that power’s ability to incentivize creation of ideas and culture. They do not care that this will only be a certain type of culture. Thus, Cohen does not escape the inevitable conflict between whatever her path will take us to (perhaps this will be a mixed, dynamic, access-dependent “free culture,” perhaps not.), and the sort of profit driven mass consumerist culture espoused by the above described. 

Secondly, she undertakes a project that is probably beyond the means of any discreet, one-off examination, however in-depth. She asserts that “the play of culture and the processes of creative play that it sustains are what prevent established ways of seeing, hearing, and conceptualizing the world from becoming calcified… for both users and user-authors the chance encounters it generates are sources of dissonance, provocation, meaning, and unexpected beauty. Sustaining conditions for those encounters should be a central goal of any system of copyright law.” The elegance and intuitive appeal of this statement lies in its recognition of the complexity of cultural play, creativity, and the unexpected creative encounters between disparate cultural icons and substrates. (Anyone who has seen Darth Schwarzenegger on YouTube would agree.) But she does not stop with that recognition, and decides to see just how deep the rabbit hole goes. 

I suspect that this shall be a deep hole, the task of explaining the processes behind human creativity and culture is beyond any “-ology” or even attempt, and that as a result any attempt will inevitably be incomplete and open to endless criticism. Perhaps this is why her discussion (of privacy and other aspects of human behavior) is so obscure and impenetrable that it is almost impossible to decipher any finer points than her general goal. The best reason I can think of is that she might have wanted to construct an impenetrable framework, so that it would be difficult to attack. Unfortunately, the resulting inaccessibility compromises the advocacy value of her work. 

I hope then, that she will fail to come up with any satisfactory answers, so that I may be proven correct, but more importantly, so that she could tell us that her explorations has taken her to one realization alone: that creativity is too complicated to be subsumed under any single explanatory framework, that we should all be more humble, etc etc. 

 

 

Comments

[Robert Greer]

A few things:

First, I don't think it's true that a significant number of commentators on IP are uninterested in how creativity arises. Even Merges, a stalwart defender of the status quo, tried to undergird the current system with a theory of what spurs creativity, and with a theory of human nature, and less-sophisticated defenders of IP routinely resort to pop-psychological-economics in their advocacy. Although "practical men, who believe themselves to be quite exempt from any intellectual influence," often disclaim any intellectual forebears, they "are usually the slaves of some defunct economist" (or philosopher).

Second, while I agree that this book does seem to go "deep down the rabbit hole," and that this casts doubt on its potential impact, I think this conclusion is actually quite compatible with (and perhaps even flows logically from) the Cohen's criticisms. If one believes, as Cohen does, that Foucauldian power struggles influence the kinds of communication permitted or encouraged by the power structure, then what discourse could be more distorted by this battle than legal discourse, which is about who should wield power, and how?

Legal writing and legal scholarship are the forms of communication most proximate to the prevailing power structure, and this is reflected in its form and content. Both are highly stylized, with features that tend to exclude many people from the discussion: the frequent use of Latin (which was rarely taught outside private education), continual reference to philosophers (knowledge of which is also mainly the province of the privileged), and an insistence on using the prim English of the American upper class for all its communications. All this happened long before postmodernists got involved in legal discourse.

Of course, there are probably some people thinking "Dude, this exclusionary speech of the privileged classes... that's exactly what Cohen DOES!" But undoubtedly, she does this undoubtedly because this is the game you have to play if you want to be a respectable commentator on legal matters. Because Cohen is criticizing the system from the inside, she has to conform to its distorting norms, and given her subtle commentary on how this plays out in related contexts, I doubt that this fact is lost on her.

Don't hate the player; hate the game.

[Angus Ni]

First, having worked closely with the sith, I hate everything.

Second, do you defend her because you think that impenetrable language is necessary to secure some respect in her academic/intellectual circles? Because if this is the case, that compromises the entire field that she is in, should one judge works by their comprehensibility, and fields of argumentation and views by their accessibility by other, probably interested individuals.

Second, I wonder how influential and relevant her field and peers are, if they demand this sort of language in their discourse. I wonder if it wouldn't have been smarter to just circumvent them altogether. Shouldn't policy makers (and i don't know if there are policy makers that would have the time to wade through this kind of work) and users be her target audience? If this is just another academy focused verbose exposition-of-view, why does it matter?

Why hate the game, when the game needs players to be played?

[Robert Greer]

Impenetrability and incomprehensibility are not absolute concepts, but are instead dependent on the audience. Cohen's book doesn't necessarily need a wide audience to be influential because there are other different strategies for influence: Some people try to immediately reach the widest audience possible, while others try to change the minds of influential people (with gradations between these two poles). Cohen's book, with its allusions to Merleau-Ponty and its praise from tech policy luminaries, is clearly aimed at the latter extreme. My guess is that Cohen was hoping to gain the ideological alliance of a small band of influential professors (and not just law professors: the book seems to be also written for sociologists, complex systems theorists, and certain cognitive scientists), officials, and other opinion leaders, then let the influence of her work branch off from there.

I think Cohen would have had a difficult time explaining her ideas without writing in the kind of shorthand she did: She would have had to explain a lot of different concepts in postmodernism and cognitive science, which would have bogged down the work. But I think the uninviting format and dry style, which exacerbate the ill effects of jargon-laden language, are more artifacts of legal scholarship generally than any specific shortcoming in Cohen's writing.