Network Stories

In 1962, Rachel Carson named the natural environment. Scientists were beginning to understand the complex web of ecological cause and effect; naming that web gave it independent existence and invested that existence with political meaning. In 1996, James Boyle named the cultural environment. Boyle’s act of naming was intended to jumpstart a political movement by appropriating the complex web of political meaning centered on the interdependency of environmental resources. But naming, although important, is only a beginning. The example of the natural environment shows us that to build from a name to a movement requires two things. First, you have to do the science, which means generating detailed descriptions of how this environment works and what harms it. Second, you have to generate a normative theory powerful enough to overcome all competing narratives: a story about what makes this environment good. In the context of culture, however, there is an important difference: Cultural harm is less amenable to scientific proof. Cultural change may be empirically and anecdotally demonstrated, but cultural harm is in the eye of the beholder. This means that the normative theory needs to do heavier lifting. Proponents of cultural environmentalism, then, need to tackle the normative theory: to formulate a theory of “the network” as a whole that explains what makes it good. This is part of the point of Boyle’s original argument, and also the point of Susan Crawford’s excellent paper. Although carving out open enclaves is important, in the final analysis the cultural environment won’t be saved a piece at a time. It will be saved only when we recognize it as an entity that is more than just the sum of its parts

Cyberspace As/And Space

The appropriate role of place- and space-based metaphors for the Internet and its constituent nodes and networks is hotly contested. This essay seeks to provoke critical reflection on the implications of place- and space-based theories of cyberspace for the ongoing production of networked space more generally. It argues, first, that adherents of the cyberspace metaphor have been insufficiently sensitive to the ways in which theories of cyberspace as space themselves function as acts of social construction. Specifically, the leading theories all have deployed the metaphoric construct of cyberspace to situate cyberspace, explicitly or implicitly, as separate space. This denies all of the ways in which cyberspace operates as both extension and evolution of everyday spatial practice. Next, it argues that critics of the cyberspace metaphor have confused two senses of space and two senses of metaphor. The cyberspace metaphor does not refer to abstract, Cartesian space, but instead expresses an experienced spatiality mediated by embodied human cognition. Cyberspace in this sense is relative, mutable, and constituted via the interactions among practice, conceptualization, and representation. The insights drawn from this exercise suggest a very different way of understanding both the spatiality of cyberspace and its architectural and regulatory challenges. In particular, they suggest closer attention to three ongoing shifts: the emergence of a new sense of social space, which the author calls networked space; the interpenetration of embodied, formerly bounded space by networked space; and the ways in which these developments alter, instantiate, and disrupt geographies of power

Creativity and Culture in Copyright Theory

Creativity is universally agreed to be a good that copyright law should seek to promote, yet copyright scholarship and policymaking have proceeded largely on the basis of assumptions about what it actually is. When asked to discuss the source of their inspiration, individual artists describe a process that is intrinsically ineffable. Rights theorists of all varieties have generally subscribed to this understanding, describing creativity in terms of an individual liberty whose form remains largely unspecified. Economic theorists of copyright work from the opposite end of the creative process, seeking to divine the optimal rules for promoting creativity by measuring its marketable byproducts. But these theorists offer no particular reason to think that marketable byproducts are either an appropriate proxy or an effective stimulus for creativity (as opposed to production), and more typically refuse to engage the question. The upshot is that the more we talk about creativity, the more it disappears from view. At the same time, the mainstream of intellectual property scholarship has persistently overlooked a broad array of social science methodologies that provide both descriptive tools for constructing ethnographies of creative processes and theoretical tools for modeling them

Privacy, Visibility, Transparency, and Exposure

This essay considers the relationship between privacy and visibility in the networked information age. Visibility is an important determinant of harm to privacy, but a persistent tendency to conceptualize privacy harms and expectations in terms of visibility has created two problems. First, focusing on visibility diminishes the salience and obscures the operation of nonvisual mechanisms designed to render individual identity, behavior, and preferences transparent to third parties. The metaphoric mapping to visibility suggests that surveillance is simply passive observation, rather than the active production of categories, narratives, and, norms. Second, even a broader conception of privacy harms as a function of informational transparency is incomplete. Privacy has a spatial dimension as well as an informational dimension. The spatial dimension of the privacy interest, which the author characterizes as an interest in avoiding or selectively limiting exposure, concerns the structure of experienced space. It is not negated by the fact that people in public spaces expect to be visible to others present in those spaces, and it encompasses both the arrangement of physical spaces and the design of networked communications technologies. U.S. privacy law and theory currently do not recognize this interest at all. This essay argues that they should

Examined Lives: Informational Privacy and the Subject as Object

In the United States, proposals for informational privacy have proved enormously controversial. On a political level, such proposals threaten powerful data processing interests. On a theoretical level, data processors and other data privacy opponents argue that imposing restrictions on the collection, use, and exchange of personal data would ignore established understandings of property, limit individual freedom of choice, violate principles of rational information use, and infringe data processors\u27 freedom of speech. In this article, Professor Julie Cohen explores these theoretical challenges to informational privacy protection. She concludes that categorical arguments from property, choice, truth, and speech lack weight, and mask fundamentally political choices about the allocation of power over information, cost, and opportunity. Each debate, although couched in a rhetoric of individual liberty, effectively reduces individuals to objects of choices and trades made by others. Professor Cohen argues, instead, that the debate about data privacy protection should be grounded in an appreciation of the conditions necessary for individuals to develop and exercise autonomy in fact, and that meaningful autonomy requires a degree of freedom from monitoring, scrutiny, and categorization by others. The article concludes by calling for the design of both legal and technological tools for strong data privacy protection

Comment: Copyright\u27s Public-Private Distinction

I would like to focus my remarks on the question of user privacy. In her fascinating paper for this Symposium, Professor Litman expresses a guarded optimism that in its forthcoming decision in MGM v. Grokster, I the Court will retain the staple article of commerce doctrine that it first articulated in Sony. She opines, however, that the user privacy strand of the Sony decision is a lost cause. I don\u27t believe that it\u27s possible to retain the staple article of commerce doctrine while abandoning user privacy. At least in the realm of networked digital technologies, the two concepts are inextricably linked. To explain why, I would like to begin by examining a concept that I\u27ll call copyright\u27s public-private distinction. This distinction does not concern the presence or absence of state action, but rather the presence or absence of conduct triggering legal accountability

Internet Utopianism and the Practical Inevitability of Law

Writing at the dawn of the digital era, John Perry Barlow proclaimed cyberspace to be a new domain of pure freedom. Addressing the nations of the world, he cautioned that their laws, which were “based on matter,” simply did not speak to conduct in the new virtual realm. As both Barlow and the cyberlaw scholars who took up his call recognized, that was not so much a statement of fact as it was an exercise in deliberate utopianism. But it has proved prescient in a way that they certainly did not intend. The “laws” that increasingly have no meaning in online environments include not only the mandates of market regulators but also the guarantees that supposedly protect the fundamental rights of internet users, including the expressive and associational freedoms whose supremacy Barlow asserted. More generally, in the networked information era, protections for fundamental human rights — both on- and offline — have begun to fail comprehensively. Cyberlaw scholarship in the Barlowian mold isn’t to blame for the worldwide erosion of protections for fundamental rights, but it also hasn’t helped as much as it might have. In this essay, adapted from a forthcoming book on the evolution of legal institutions in the information era, I identify and briefly examine three intersecting flavors of internet utopianism in cyberlegal thought that are worth reexamining. It has become increasingly apparent that functioning legal institutions have indispensable roles to play in protecting and advancing human freedom. It has also become increasingly apparent, however, that the legal institutions we need are different than the ones we have

Privacy, Ideology, and Technology: A Response to Jeffrey Rosen

This essay reviews Jeffrey Rosen’s The Unwanted Gaze: The Destruction of Privacy in America (2000). Rosen offers a compelling (and often hair-raising) account of the pervasive dissolution of the boundary between public and private information. This dissolution is both legal and social; neither the law nor any other social institution seems to recognize many limits on the sorts of information that can be subjected to public scrutiny. The book also provides a rich, evocative characterization of the dignitary harms caused by privacy invasion. Rosen’s description of the sheer unfairness of being “judged out of context” rings instantly true. Privacy, Rosen concludes, is indispensable to human well-being and is at risk of being destroyed unless we act fast. The book is far less convincing, however, when it moves beyond description and attempts to identify the causes of the destruction of privacy and propose solutions. Why is privacy under siege today? The incidents that Rosen chooses as illustrations both reveal and obscure. From Monica Lewinsky’s unsent, deleted e-mails to the private online activities of corporate employees and the Dean of the Harvard Divinity School, the examples offer a rich stew of technology, corporate mind control, public scapegoating, and political intrigue. But for the most part, Rosen seems to think that it is sex that is primarily to blame for these developments—though how, exactly, Rosen cannot seem to decide. He suggests, variously, that we seek private information out of prurient fascination with other people’s intimate behavior, or to enforce upon others authoritarian notions of “correct” interpersonal behavior, or to inform moral judgments about others based on a hasty and ill-conceived equivalence between the personal and the political. Or perhaps Rosen is simply upset about the loss of privacy for a specific sort of (sexual or intimate) behavior, whatever the origin of society’s impulse to pry. Yet there are puzzling anomalies in Rosen’s account. Most notably, appended to Rosen’s excavation of recent sex-related privacy invasions is a chapter on privacy in cyberspace. This chapter sits uneasily in relation to the rest of the book. Its focus is not confined to sex-related privacy, and Rosen does not explain how the more varied information-gathering activities chronicled there bear on his earlier analysis. Rosen acknowledges as much and offers, instead, the explanation that intimate privacy and cyberspace privacy are simply two examples of the same problem: the risk of being judged out of context in a world of short attention spans, and the harms to dignity that follow. This explanation seems far too simple, and more than a bit circular. Why this rush to judge others out of context? Necessity is one answer—if attention spans are limited, we cannot avoid making decisions based on incomplete information—but where does the necessity to judge come from? And what do computers and digital networking technologies—factors that recur not only in the chapter on cyberspace privacy, but also in most of Rosen’s other examples—have to do with it? This Review Essay argues, first, that the use of personal information to sort and classify individuals is inextricably bound up with the fabric of our political economy. As Part II explains, the unfettered use of “true” information to predict risk and minimize uncertainty is a hallmark of the liberal state and its constituent economic and political markets. Not sex, but money, and more broadly an ideology about the predictive power of isolated facts, generate the perceived necessity to judge individuals based on incomplete profiles. The harms of this rush to judgment—harms not only to dignity, but also to economic welfare and more fundamentally to individual autonomy—may undermine liberal individualism (as Rosen argues), but they are products of it as well. Part III argues, further, that the problem of vanishing informational privacy in digital networked environments is not sui generis, but rather is central to understanding the destruction of privacy more generally. This is not simply because new technologies reduce the costs of collecting, exchanging, and processing the traditional sorts of consumer information. The profit-driven search for personal information via digital networks is also catalyzing an erosion of the privacy that individuals have customarily enjoyed in their homes, their private papers, and even their thoughts. This process is transforming not only the way we experience privacy, but also the way we understand it. Privacy is becoming not only harder to protect, but also harder to justify protecting. Part IV concludes that shifting these mutually reinforcing ideological and technological vectors will require more drastic intervention than Rosen suggests

Copyright as Property in the Post-Industrial Economy: A Research Agenda

The incentives-for-authors formulation of copyright’s purpose is so deeply ingrained in our discourse and our thought processes that it is astonishingly hard to avoid invoking, even when one is consciously trying not to do so. Yet avoiding that formulation is exactly what we ought to be doing. Everything we know about creativity and creative processes suggests that copyright plays very little role in motivating creative work. In the contemporary information society, the purpose of copyright is to enable the provision of capital and organization so that creative work may be exploited. And the choice of copyright as a principal means of promoting cultural production has consequences for the content of culture as well.This reframing has four important consequences for debates about copyright law and policy. First, abandoning the incentives-for-authors story requires us to talk about cultural progress differently. The incentives-for-authors story has functioned as a smokescreen, enabling scholars, judges, and legislators to conflate economic and creative motivation. Severing the motivational link between creativity and economics requires us to come up with a better understanding of how cultural progress emerges, and a more accurate account of how the economic incentives that copyright provides affect progress more generally. Second, an account of copyright as incentives-for-capital suggests a different approach to conceptualizing the kind of “property” that copyright represents. Copyright scholars habitually compare copyright to property in land, a conceptual move that passes over an important stage in the evolution of economic activity and associated economic rights. There are important benefits to be gained from comparing post-industrial, information property to industrial, corporate property, and copyright law more explicitly to corporate law. Specifically, copyright law in the post-industrial era works to separate authorship from control of creative works so that a set of coordination and governance problems closely associated with information resources can be solved. Third, comparing copyright more explicitly to industrial, corporate property and legal regimes governing its use suggests some different ways of thinking and talking about problems of social welfare that so often bedevil regimes of property law. Fourth, comparing copyright more explicitly to industrial, corporate property foregrounds copyright law’s (largely unrealized) potential to function as a tool for ensuring accountability to the authors without whom the copyright system could not function