Back in March, Concurring Opinions convened a wonderful virtual symposium on Julie Cohen’s new book, Configuring the Networked Self.
Here, collected in one place, are all of the posts. (At least, I believe that this is everything!)
- Danielle Citron sets the stage.
- Danielle Citron welcomes the guests.
- Deven Desai on why now?
- Julie herself offers some questions.
- Hector Postigo on the self as cultural product.
- Ted Striphas on better stories and better culture.
- Danielle Citron on the architecture of human flourishing.
- Anita Allen and a critique.
- Frank Pasquale on method.
- Valerie Steeves on talking law.
- Paul Ohn minds the gap.
- Ian Kerr on play.
- Ann Bartow and a perspective from China.
- Brett Frischmann on everyday practice.
Fabulous symposium. Congratulations to all involved. [The post continues.]
I did not have time back in March to weigh on Julie’s book. It is a magnificent accomplishment, in my view. I am particularly attracted to her contribution of the idea of “semantic discontinuity” as a governing principle for information law and policy. Back in 2000, I wrote up something along the same lines, though with none of Julie’s depth or elegance. I’m reproducing a passage from that piece here largely because I, like Julie, am still figuring out what this instinct signifies:
[T]he technological architecture of copyright historically signified and/or consisted of one or more forms of discontinuity–distinctions, breaks, barriers, tensions, and even inconsistencies between and among physical and social constructions of the relevant environment. The author was distinct from the reader, from the original of the work, and from the law. The original was distinct from the copy. Each copy was distinct from the other. The separate rights provided by the law were distinct from each other, and the physical limitations of works meant that readers’ rights were distinct from those of the author. The meaning of copyright law today, what one might call copyright space, or the architecture of copyright, emerges from those discontinuities. Copyright law identifies and bridges (or, at times, consciously fails to bridge) relevant gaps among the limitations of the technology of creating copyrighted works, the goals of individuals and institutions that create, consume, and distribute such works, and whatever public policy choices society is held to have made. The dichotomy between unprotectable ideas and protectable expression isolates one such gap. The fair use doctrine highlights a second gap. Provisions for compulsory licensing of music compositions and cable television signals illustrate two occasions where copyright law bridges such gaps, rather than enforces them. Where the law places such bridges, and where it refuses to place them, sends important messages about the strengths and weaknesses of authors’ and readers’ interests in different contexts, about institutional politics, about the history of copyright law, the values of free expression, “progress,” and about a host of other things. Our understanding and appreciation of those things is made possible by the architecture described above. More directly, the architecture expresses them.
Over time, the notion of such a discontinuous architectural baseline has become deeply embedded in the presumptions that govern our thinking about information, and about copyright problems in particular. From time to time, judicial rhetoric has suggested that the essence of the copyright system is the ability of the rights holder to permit or proscribe each and every proposed use of the work. Scholars have observed that in judicial practice, however, holders have never possessed such absolute rights. Copyright law and policy is routinely and correctly characterized as reflecting a “balance” between the interests of creators and consumers. The contours of that balance have never been, and perhaps cannot be, described with precision. The very existence of incompatible physical formats for copyrighted works means that the nature of any discontinuities differs from format to format, and work to work. The law, accordingly, varies in seemingly odd ways.
Digits simplify. Digital technologies of information development and exploitation collapse these separate technological and legal architectures, as well as the gaps that characterize copyright’s architecture. Legal regulation of copyrighted works and technological regulation of information are increasingly indistinct. “Shrinkwrap” licenses for computer software become “clickwrap” licenses for software, websites, and possibly most any kind of information that is delivered in digital form. Information in the public domain (or eligible for reuse via fair use) is collected and delivered in digital format and made available so long as the recipient consents to restrictive terms or has appropriately configured the receiving device. Content-rating systems and filtering technologies shield viewers and customers from material that governments and/or content providers deem objectionable. One need no longer interpret copyright law to determine the limits of uses of copyrightable material. Digital technology imposes such limits automatically. Moreover, boundaries identifying “original” and “reproduction” (or “one iteration” and “two iterations”) are disappearing. … What … of technology that appears to permit operable combinations of executable computer code (copyrightable programs) to move from computing device to computing entirely electronically, leaving little or no electronic footprint on any device’s hardware? Do such transmissions involve potentially infinite illegal copying, or no copying at all? Unmoored to any physical substrate, such technology undermines divisions between tool (as an extension of the self) and copyrightable expression. A person who uses a pen or typewriter to create a novel can easily distinguish between un-copyrightable tool and copyrightable product. A person who uses a word processing program in a stand-alone computer may be able to distinguish tool (program) from product (data). Until the product is printed out, the two are essentially indistinguishable, and in any event the tool itself is copyrightable. As technology advances, data and program merge. Code is code. Where, in a digital world, does the “original” contribution of an author begin and end?
The ubiquity and commonality of this “bit-ness” highlights the [sameness] of digital information architecture …. Text, sounds, images, and even textures are technologically substitutable. If everything is just bits of data, the choice of words, melody, or graphic representation is merely the selection of a different mechanism for converting bits to human-recognizable form.
What has been a defining characteristic of copyright space, in sum, and what is disappearing in the transition to cyberspace, is the complexity of form and meaning represented in older legal and technological architectures. Copyright’s architecture is complex. Cyberspace is simple. … I suggest that in architectural terms, that disappearance represents a social harm.