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6 Responses

  1. Julie Cohen says:

    Crisis would be too strong a word. Call it a long and determined search for something that wasn’t a hammer.

  2. Ted Striphas says:

    I do have one question for you, Julie: how does a court of law adjudicate play? Maybe a more concrete way of posing the question is: can you point to any jurisprudential examples that affirm your perspective on play? (Or was your intention with this idea more visionary, i.e., to affirm a set of principles that don’t seem to exist, legally speaking, in the here and now, but ought to?)

  3. Julie Cohen says:

    Without ruling out the possibility that there might be such opinions, none comes immediately to mind. In general, I think courts get into trouble in this area – fair use decisions often lean heavily on romantic notions of deliberate play with Serious Critical Messages, while decisions finding privacy violations tend to offer weak explanations of the privacy interest. In part, I’m hoping to offer a new vocabulary that might be used to explain and justify decisions affirming the interests of “networked selves.” There is, I think, still considerable work to be done in getting them into usable form for courts.

  4. Valerie Steeves says:

    Perhaps legislators and courts can directly address the boundaries required for play rather than play itself. For e.g., the struggle over kids’ online privacy was first articulated as a need to stop commercial websites from colonizing online playgrounds and reconstituting them for commercial purposes. COPPA switched the discourse to data protection and parental consent, which are much weaker tools when it comes to regulating the propensity of commercial organizations to colonize and mine social spaces. It’s no surprise that European data protection commissioners are now turning to human rights provisions to push back against this kind of mining, first with kids and now increasingly with big players like Facebook and Google. There are also provisions like s. 3 in Canada’s PIPEDA that provide an opening for the courts to judge the social impact of surveillance by determining whether or not a reasonable person would consider it appropriate in the circumstances. We can help breathe life into those kinds of provisions by – as Julie suggests – developing language to articulate a compelling interest in protecting the conditions for personhood/human flourishing. In fact, the inclusion of s. 3 in PIPEDA was a response on the part of legislators to lobbying by advocates who mobilized social science findings about the lived experience of privacy in online spaces.

  5. Julie Cohen says:

    This is a great point, Valerie, and gets at how one might begin to think about operationalizing the “semantic discontinuity” principle — by addressing boundaries rather than play itself. I realize I should now say more but am rushing off to give a talk, so more later…

  6. Julie Cohen says:

    OK, back to Ted’s question re the possibility of a jurisprudence that affirms play. One thing that I’ve been mulling for some time is the need for deep-level intervention that goes all the way back to law school pedagogy. An example from copyright: despite all the great work that has been done over the past few decades to develop a critical perspective on copyright, copyright casebooks and copyright classes still give the traditional incentive story pride of place. In both the classroom and the courtroom, comparisons of accused and allegedly infringed works often seem to proceed in a vacuum, which enables the incentives story and the idea of authorship as springing forth from the brow of the solitary genius to retain traction to a far greater extent than they deserve. Arguably copyright classes and copyright casebooks should be reimagined in a way that includes substantial components of art history and intellectual history — i.e., students ought to be forced to confront learning about where art comes from. And copyright infringement tests should be reimagined in a way that requires works to be placed in contexts.

    I’ve tried to do some of this in recent years, and in general students have responded well to it – though a small minority of them absolutely hate it and opine, with ruthless certainty, that such things have no place in copyright law’s intellectual universe.