Some More Play (Symposium on Configuring the Networked Self)
posted by Ian Kerr
I remember meeting Julie Cohen for the first time. It was right round the time she was writing “Lochner in Cyberspace.” We were hanging during one of the breaks at the Berkman Center’s first really big conference on the Internet & Society, eating ice cream cones with Mark Lemley.
If you had told me then that the (then) University of Pittsburgh, Professor of Law would one day turn her academic focus to many of Nietzsche’s preoccupations in La Gaya Scienza, I am not sure that I would have believed you. The Heraclitian privileging of becoming over being? Human maturity consisting in the seriousness of a child at play? Remaining faithful to the body? What does any of that have to do with digital rights management or a right to be anonymous?
In many important respects, her new book tells us.
I must confess that one of the reasons that I have been lurking rather than blogging this week is that the debate this book raises on one level—the one that Anita Allen so convincingly takes on—is something I find quite paralyzing. This has become quite existential for me in a way that Julie probably had not intended. Am I reluctant liberal? How many precepts must give way before I am forced to call myself a postie? (Not that there is anything wrong with it!) And, as Wittgenstein liked to say (in another context): ‘Why, would it be unthinkable that I should stay in the saddle however much the facts bucked?
As you will see, I am still stuck on the question about whether we need a new ride.
Anita probably best characterized my own approach to date in her description of what she sees as one of Julie’s central contributions: “a patchwork quilt of the better elements of ancient, medieval, modern, and contemporary liberal and post-modern theories.”
But is that good enough, or do we need some kind of unified field theory?
One of the things I find so fun about Julie’s book is her masterful attempt to provide some foundations for the latter. I have for years been puzzled about the complex relationship between intellectual property and privacy. And Julie really helps us think not only about how to sew a new mentality but also about how to unravel some of the knots. For me, the hard part is in knowing exactly how much of the liberal/essentialist framework one needs to give up in order to truly, madly, deeply adopt her core suggestions. Or, perhaps equally challenging, to figure out how some of her core suggestions might play out in a (largely liberal) legal framework.
In an attempt to address the latter, I am inspired by the super thoughtful suggestions of Val Steeves buried within the comments under the insightful post by Ted Striphas. In answering Ted’s question posed to Julie (how does a court of law adjudicate play?), Val astutely suggests that, “Perhaps legislators and courts can directly address the boundaries required for play rather than play itself.” The example Val offers (about how Canadian law deals with kids’ online privacy) provides what Julie says “gets at how one might begin to think about operationalizing the “semantic discontinuity” principle — by addressing boundaries rather than play itself.” (Call me crazy but that strategy sounds very liberal-minded to me!)
If I am not mistaken, like Val’s example mentioned above, my proposed regulatory approach to DRM might also get at how one could begin to think about operationalizing the “semantic discontinuity” principle — by addressing the boundaries for play rather than play itself.
Very briefly, I argued that a generalized and unimpeded use of digital locks, further protected by the force of anti-circumvention law, threatens not merely legal rights and freedoms but also threatens to significantly impair our intellectual and moral development by undermining the very capacities necessary for human flourishing. Like Julie (like Aristotle, for that matter), I believe that it is the play of everyday practice and the play of circumstances that underlie our (intellectual and moral) development. I also believe that, in the case of DRM, it is the boundaries of play rather than any particular form of it that needs legal protection.
To illustrate, I likened the moral space that DRM constrains to the cars on my favorite ride as a kid—Walt Disney’s Autopia. This enormous and amazing “highway” permitted wide-eyed seven-year-olds to “drive” unaccompanied by an adult. It was of course made possible by virtue of the hidden fact that the go-carts were secured by a railing affixed to the roadway. Although kids could speed up or slow down a little bit, the cart would automatically steer itself along the seemingly endless highway, banking on corners and holding steady down the straightaways. With the usual magic of Disney, the technological infrastructure that made this possible was rendered invisible to the kids on the ride; they believed that they were actually driving! Through the illusion of technology, Walt had figured out how to build the literal instantiation of Thoreau’s famous observation that, “we do not ride on the railroad; it rides upon us.”
In fact, you could be the world’s worst driver—veering left then suddenly right of centre, but the hidden rail would always guides you back into the middle. Sort of like some souped-up, automated version of the Aristotelian “golden mean.” But, unlike training wheels on a bicycle, Autopia’s technological infrastructure does not really train kids to learn how to drive. In fact it un-trains them by removing the possibility of the play of everyday practice (not to mention the play of circumstances). Although I had no idea of this as a seven year-old sitting behind the wheel, Autopia’s carts are impossible to crash. What I realized, years later, is that Autopia has only passengers, not drivers. On Walt Disney’s highway, driving is not permitted. Neither is “play” in the morally relevant sense.
Likewise, with today’s networked DRM. Its seamlessness precludes the necessary space for many important kinds of play. And yet these networked spaces are the playgrounds of our intellectual and moral development. As Aristotle might have asked: in a networked space perfectly constrained by DRM, how could one ever cultivate phronesis without protecting the boundaries of permission to venture into the realm of excess or defect?
To me, this kind of account offers a much richer and more persuasive explanation of the problem of DRM than simply articulating how it abrogates freedom of expression or reasonable expectations of privacy. In this case, one might say that the concept of semantic discontinuity suggests to policy makers and legislators that a state sanctioned, unimpeded and widespread digital lock strategy such as the one adopted under the DMCA or the recently proposed Canadian copyright law reform bill should not be implemented because, if universalized, such a strategy would undermine human flourishing. In the alternative, if anti-circ provisions are going to be part of any copyright reform effort, the boundaries of play must be adequately protected through carefully tailored counter-measures.
I will be interested to see if Julie thinks that this example inches towards the kind of work that “the play of everyday practice” and “semantic discontinuity” prescribe.
However, at this now late hour, I remain puzzled about whether we will be forced to use machetes not scalpels, as Paul Ohm very playfully suggests. And even more so about whether we need to stay on or jump off of the (post)liberal bandwagon, no matter how much the facts buck… or whether that is even up for grabs.