Mazzone argues that overenforcement of copyright is rampant:

False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.

Mazzone’s book highlights an underappreciated problem of rights fabrication that threatens to become a form of private legislation. If the intellectual property system is to genuinely promote innovation and creativity, it will need to address the issues he describes. It should certainly do so before adopting the types of intrusive remedies proposed under SOPA/PIPA. Mazzone’s policy recommendations are wise and often original, both recognizing and building on a large law review literature on IP reform. As Mazzone has argued:

Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims. Courts should extend the availability of the copyright misuse defense to prevent copyright owners from enforcing an otherwise valid copyright if they have engaged in past copyfraud. In addition, Congress should further protect the public domain by creating a national registry listing public domain works and a symbol to designate those works.

Mazzone presents a level-headed and persuasive account of the policy changes that could improve matters. Copyfraud is a wonderful read and a great contribution to the IP literature. It’s recommended reading for anyone wondering how such an imbalanced legal regime arose.

X-Posted: Concurring Opinions.

[T]he key issue is to think about why we choose novelty over immersion. Why do we choose convenience—the speed of consumption—over the sensory qualities of a consumption experience?

What [Simon] Reynolds dubs retromania seems a paradoxical way for capital to proceed to secure ideological dominance, but it makes a diabolical sort of sense: get novelty and innovation on the cheap by recycling the ready-at-hand past. This has the added bonus of fusing the new with the familiar, so consumers can appease two contradictory longings simultaneously. Nostalgia and novelty fuse in a new kind of cultural artifact, which Reynolds spends a lot of time cataloging: stuff like I Love the ___’s, reunion tours, bands playing their old albums in sequence, Web 2.0 music like Flying Lotus, Girl Talk, etc.

The fusion of “new and the familiar” also reminds me of the ideas of “flocking and differentiation” in the Hemphill/Suk article on fashion. Rather than being epiphenomenal, one more sad aspect of status anxiety, fashion to Hemphill and Suk is an authentic expression of a broader dialectic of individual self-creation: to both conform to social norms and to distinguish oneself from them. Christening these impulses “flocking” and “differentiation” (respectively), Hemphill and Suk see fashion as not merely an economic phenomenon, but a cultural one, reflecting deep-seated human needs. But a rapid and fruitless cycling between bedazzlement and boredom could just as accurately characterize fashion trends as an ennobling narrative about “flocking” and “differentiation.”

Who knows whether fashion, or the fused nostalgia/novelty Horning describes, is a component of authentic self-expression, or a form of false consciousness? As Denis Charles Philips explains, “many rival narratives can be devised by an individual to account for a given action, just as, in natural sciences, many rival hypotheses can be invented to account for any finite body of data.” The law of culture can be vexing in part because we can disagree so profoundly about the right narrative “frame” for the phenomena we encounter.

It’s tempting to simply refuse to give an account of value, or even intention, in some circumstances. When we move from processes of appreciation to those of creation, that’s an increasingly popular strategy. Richard Prince appeared to retreat to the realm of the non-rational at a recent deposition in a celebrated copyright case:

In a deposition in the case that was recently published as part of an unlikely art book by the writer and director Greg Allen, lawyers for [plaintiff] Mr. Cariou follow [defendant] Mr. Prince deep into the strange and often trackless territory of artistic intention. About as close as they get to pinning him down is that he wanted to use the borrowed pictures to explore his fascination with the painting of Willem de Kooning and also thought of his collages and paintings as part of an idea for a movie about a post-apocalyptic world in which Rastafarians, famous literary lesbians and others commandeer hotels on St. Bart’s.

“So what are four lesbians from the early 20th century doing on St. Bart’s in, now, when there’s a nuclear war, like why are they there?” a lawyer asked Mr. Prince, who responded: “Your guess is as good as mine. That’s what I do, I make things up.” At another point in the transcript of the deposition, a lawyer asked, “What is the message?” Mr. Prince replied, “The message is to make great art that makes people feel good.”

Maybe Prince also answers Horning’s initial question, “why we choose novelty over immersion”? Or perhaps we should turn to Sven Birkerts, who observed, in The Gutenberg Elegies, readers “awed and intimidated by the availability of texts, faced with the all but impossible task of discriminating among them, [tending] to move across surfaces, skimming, hastening from one site to the next without allowing the words to resonate inwardly.”

Information overload has an aesthetics; only time will tell if it’s deep or shallow. While that debate rages on, Horning grounds us in the material foundations of an oppositional stance:

Value now is captured by harnessing the filtering that consumers perform for one another, monitoring the lateral cultural chatter and trying to time the implied markets. This is another aspect of the retromania phenomenon. Amateur bricoleurs sort through the digitized detritus of the past (Danny Kirwan solo albums, Falco, etc.), trying to make cultural capital out of it. How one feels about the question of resistance probably depends on how successful one is at that task.

The lords of the memes (or, in Jaron Lanier’s terms, lords of the clouds) aren’t complaining, and support a fair number of projects designed to defend the status quo. But we also need to think about the cultural consequences of a class of newly empowered sorters, filterers, and curators centrifugally pursuing their bliss. A literature criticizing the narcissism of the “daily me” has already done that for politics and journalism. Can a similar project work in culture, without being abrasive, elitist, or sectarian? Spiritual traditions attempt to identify the enduring truths, forms of beauty, and institutions of justice that contribute to human flourishing. Do they have a place in the normative evaluation of culture that lies a bit beneath the surface of legal cases like Prince’s? Could a new Adorno enliven the rights/utility literature in this area, which seems to have hit a dead end? Remix culture owes a great deal to postmodernism. Perhaps a critique of it will need to rely on both religious thought’s appreciation of tradition and critical theory’s willingness to interrogate enlightenment accounts of autonomy.

Image credit: Siebren Versteeg and whatever random viewer caused those images to appear on the touchscreens.

[A] report by the United Nations’ special rapporteur went so far as to declare that the Internet had “become an indispensable tool for realizing a range of human rights.” Over the past few years, courts and parliaments in countries like France and Estonia have pronounced Internet access a human right.

But that argument, however well meaning, misses a larger point: technology is an enabler of rights, not a right itself. There is a high bar for something to be considered a human right. Loosely put, it must be among the things we as humans need in order to lead healthy, meaningful lives, like freedom from torture or freedom of conscience. It is a mistake to place any particular technology in this exalted category, since over time we will end up valuing the wrong things. For example, at one time if you didn’t have a horse it was hard to make a living. But the important right in that case was the right to make a living, not the right to a horse. Today, if I were granted a right to have a horse, I’m not sure where I would put it.

I wish Cerf had seen the excellent presentation at AALS on cyberlaw and the internet kill switch, which was organized by Annemarie Bridy and included fellow bloggers Rob Heverly, Michael Froomkin, and Jack Balkin. As Balkin noted, “new school censorship” is constantly shifting; Cerf’s confidence that abstract categories like “freedom of speech” could identify it all is more blinkered than the rapporteur’s endorsement of concrete modes of realizing communicative autonomy. Heverly drew on the literature of cyborgs to demonstrate how intimately connected personal identities can be with the machines and technologies in which they are embedded. As Julie Cohen argues, we are “networked selves,” and need “greater control over the boundary conditions that govern flows of information to, from, and about” us them.

In any event, I am glad to see that Paul Bernal has taken Cerf on, with the following commentary:

[Cerf] reflects a particularly US perspective on ‘human rights’ – a minimalist approach which emphasises civil and political rights and downplays (or even denies) economic and social rights amongst others. Most of the rest of the world takes a broader view of human rights: the International Covenant on Economic, Social and Cultural Rights was introduced in 1966, and has been ratified by the vast majority of the members of the UN – but not by the US. The covenant includes such rights as the right to work, the right to social security, rights to family life, right to health, to education and so forth – and it isn’t too much of a stretch to see that right to internet access might fit within this spectrum.

That Cerf doesn’t see it this way is not surprising given that he is American – but I think his argument is weaker than that. . . . [Cerf also] doesn’t mention privacy, he doesn’t mention freedom from censorship, he doesn’t mention freedom from surveillance – I wish he would, because next after access these are the crucial enablers to human rights, to use his terms. I’d put it in stronger terms myself. I’d say we have rights to privacy online, rights to freedom from censorship, and rights to freedom from surveillance. If you don’t want to call them human rights, that’s fine by me – but right now, right here, in the world that we live in, we need these rights.

It does not surprise me that Cerf works for a US company which, as Siva Vaidhyanathan has exhaustively documented, is not exactly distinguishing itself in terms of cross-cultural sensitivity. Like the “voice of neoliberal God” editorial pose of The Economist magazine, US technologists’ presumptions are wearing thin in a world where the “west is no longer the motor of history.”

Anyone who believes the Internet to be exclusively, or even primarily, a site for the democratisation of the media or a mechanism to enhance participation in public discourse needs to read this book. This outstanding collection tackles the dark side of the Internet, its use by ‘cyber mobs’, liars, aggressive misogynists and purveyors of hate to distribute their views largely with impunity, while their targets suffer the consequences of this predominantly unregulated arena for speech. . . .

The ubiquity of the Internet, the permanence of posts, and the accessibility of data through search engines that do the looking for you mean that material that makes its way online can affect people’s lives over the long term and in profound ways. When you combine these features with the anonymity of posters and the difficulty of regulating the Internet, it means that people do things and say things on the Internet that they would not do or say in face to face conversations, or at least if they did there would be legal and moral consequences. The Internet as a medium provides a uniquely powerful and wide reaching mechanism with which to do bad things, yet relatively little work to date has acknowledged this aspect of it.

A growing feminist literature, ranging from the work of co-blogger Ann Bartow to interventions in social web and other communities, also highlights these problems.

Some will say: if you don’t like a given online community, just join another one. But the ubiquity of options on the internet often amounts to little more than a mirage of choice. You may really like Google+ or Instagram and find it to be a more congenial environment than Facebook or Twitter. (As Liz Kelley put it, “Instagram is homey; Twitter is noisy.”) But just try dragging all your friends or followers to them.

Moreover, social networks aren’t just leisure activities for many people. Entities like Klout have started a competitive game of influence accumulation with career implications. And they can be important forums for the development of identity, as Rob Horning explains:

The more effort we put into crafting identity online, the more material we supply to Facebook and search engines to associate with contextual ads and other marketing initiatives. For this organizational work we are compensated not with wages but with a stronger sense of self, measurable in hard, quantifiable terms. How many friends do you have? How often do they update? How many photos have you shared? How many times have they been looked at? And so on.

All of this is to say that as Web 2.0 has infiltrated our everyday life, it has transformed our habitus — sociologist Pierre Bourdieu’s term for our manifest and class-bound way of being in the social world — into an explicit productive force without our conscious consent. By continually enticing us to produce more and enrich our self-concept, it presents a clear danger to our ability to maintain a coherent sense of ourselves — to sustain a feeling of ontological security, as Anthony Giddens puts it. Inundated with digital information from all sides — from friends, marketers, and the fruits of own unbounded curiosity — we can fritter away our time shuffling and reshuffling the little bits of novelty without performing a synthesis.

The data deluge and constantly shifting metrics of digital capitalism are hard enough to deal with. The types of civil rights concerns raised by The Offensive Internet shouldn’t be burdening anyone.

CowClicker was meant to parody the wildly successful Facebook game Farmville, exposing its unchallenging and pointless gameplay and its cynical commercialism. But to Bogost’s dismay his intentionally boring game unexpectedly attracted 50,000 users. Stunned out of his customary ironic detachment, Bogost found himself unable to resist the direct “pleasure” of having people play his game. He began to pay attention to what they liked and to fulfill their requests, though he was bothered by their unironic pleasure in the gameplay. . . . Eventually he resorted to outright destruction, starting a counter that ended with a satisfyingly absurd “rapture” that left no cows standing, just a little clickable shadow in the pasture: a “cowpocalypse”! Yet even the ”cowpocalypse” was not enough to erase the enthusiasm of the fans . . .

At this point, Bogost could have easily embraced a Marcusean attitude (diagnosing, as Charles Reitz puts it, “alienation in the midst of affluence, repression through gratification, and the overstimulation and paralysis of mind”). He instead drew the following lesson:

It shows us how weird and complicated simple things really are, and shows me not that like I’m some sort of brilliant designer who made this thing that was bigger than I thought it was, but how resilient and creative people are. I did this thing that was Cow Clicker, and in spite of it, they rose above and, and made it – made it something more than it really was.

I thought Bogost’s perspective offers encouragement as the 2012 election season rolls around. Much of the coverage and dialogue around the event has the cognitive complexity of CowClicker. A tiny fraction of the population will have real influence; we won’t even know who they are until after it’s over, if then. The real problems of the country will not be addressed. Decline will either continue as before or accelerate. But in the midst of all that, it is possible to find some expressions of community and purpose.

The cost to Vogue of an additional subscriber is, in fact, zero. I know there is bandwidth and server maintenance but even if you try, we are approaching zero. That means that a price of $1,575 identifies the point on the demand curve where the price elasticity of demand is -1. That means a 0.1% price drop will cause a 0.1% increase in subscription numbers, leaving revenue the same. . . . [T]his is targeting the professional segment of Vogue’s demand and given what they get the price sounds reasonable especially since it is difficult for Vogue to work out individual’s willingnesses-to-pay.

The pricing problems here remind me of a book called Valuing the Unique: The Economics of Singularities, by Lucien Karpik. He defines “singularities” as “goods and services that cannot be studied by standard methods because they are multidimensional, incommensurable, and of uncertain quality.” The book looks at markets ranging from “fine wines, movies, and luxury goods” to “pop music and legal services.” As he observes, we have social reasons for keeping all these things out of the realm of pure commodities. (I’d quote the text relating to Polanyi directly, but it appears there’s some sort of extreme copy control measure on the PDF of the first chapter provided by Princeton University Press that keeps me from doing so! Talk about a singularity.)

As someone who’s done many skeptical pieces on leading tech companies, I should think more about the good they’ve done us. I’ve had a pretty dramatic conversion experience the last couple of months with respect to Twitter. Though many people urged me to join in 2010, I thought it was just another flash in the pan. Worse, I dismissed the 140-character limit as an absurd restraint on communication. “Why not 26?,” I thought sarcastically, after Slate produced this satirical video:

But last month I decided I would try it out as a notification service, and perhaps a place to post notes about stories I’d saved on Instapaper (while I was reading them on my phone). I thought I’d connect with some people who were interested in similar things. Some good micro-conversations followed.

A few weeks later, Occupy Wall Street emerged as a trending term, and I started monitoring the #ows hashtag. I found the twitter “coverage” so much more interesting than the mass media coverage. I’d thought this sort of utility was only necessary in a country like Iran, with a controlled media. But it turns out that US reporters and mainstream outlets have often turned out to be too distracted or resource-starved to adequately cover an important social movement in our midst. Dahlia Lithwick discusses the implications:

For the past several years, while the mainstream media was dutifully reporting on all things Kardashian or (more recently) a wholly manufactured debt-ceiling crisis, ordinary people were losing their health care, their homes, their jobs, and their savings. Those people have taken that narrative to Facebook and Twitter—just as citizens took to those alternative forms of media throughout the Middle East as part of the Arab Spring.

And just to be clear: They aren’t holding up signs that say “I want Bill O’Reilly’s stuff.” They aren’t holding up signs that say “I am animated by toxic levels of envy and entitlement.” They are holding up signs that are perfectly and intrinsically clear: They want accountability for the banks that took their money, they want to end corporate control of government. They want their jobs back. They would like to feed their children. They want—wait, no, we want—to be heard by a media that has devoted four mind-numbing years to channeling and interpreting every word uttered by a member of the Palin family while ignoring the voices of everyone else. . . .

Mark your calendars: The corporate media died when it announced it was too sophisticated to understand simple declarative sentences. While the mainstream media expresses puzzlement and fear at these incomprehensible “protesters” with their oddly well-worded “signs,” the rest of us see our own concerns reflected back at us and understand perfectly. Turning off mindless programming might be the best thing that ever happens to this polity. Hey, occupiers: You’re the new news. And even better, by refusing to explain yourselves, you’re actually changing what’s reported as news.

Of course, I worry that corporatization (and more sinister elements) will eventually enter this medium as well. But for now, I’m considering my 100 or so twitter feeds about as good a news source as the NYT, WaPo, or CNN.

Will singer-songwriters like Coulton, or iTunes-inspired impresarios, capture the bulk of future music revenues? Only time will tell.

X-Posted: Concurring Opinions.

Research tells us that 90% of people seek advice from family and friends as part of the decision making process. This “Friend Effect” is apparent in most of our decisions and often outweighs other facts because people feel more confident, smarter and safer with the wisdom of their trusted circle.

Today, Bing is bringing the collective IQ of the Web together with the opinions of the people you trust most, to bring the “Friend Effect” to search. Starting today, you can receive personalized search results based on the opinions of your friends by simply signing into Facebook. New features make it easier to see what your Facebook friends “like” across the Web, incorporate the collective know-how of the Web into your search results, and begin adding a more conversational aspect to your searches.

The announcement almost perfectly coincides with the release of Eli Pariser’s book The Filter Bubble, which argues that “as web companies strive to tailor their services (including news and search results) to our personal tastes, there’s a dangerous unintended consequence: We get trapped in a “filter bubble” and don’t get exposed to information that could challenge or broaden our worldview.” I have earlier worried about both excessive personalization and integration of layers of the web (such as social and search, or carrier and device). I think Microsoft may be reaching for one of very few strategies available to challenge Google’s dominance in search. But I also fear that this is one more example of the “filter bubble” Pariser worries about.

Like Evgeny Morozov, Pariser persuasively demonstrates the downside of “community building” on the web; filter bubbles can be astonishingly insular. It’s an important message. Oren Bracha and I have shown the critical importance of search technology in affecting both users’ autonomy and possibilities for democracy. And as I noted last summer:

Heraclitus wrote that “for the waking there is one world, and it is common; but sleepers turn aside each one into a world of his own.” In our age of fragmented lifeworlds, narrowcasting, and personalization, internet searchers are increasingly like Heraclitus’s sleepers. They will increasingly consume customized media on the persons and events they take an interest in. Many will unwittingly enter a media environment shaped in ways they can’t understand. While some authors have lamented the effects of the “Daily Me” on politics, and others have noted the Kafkaesque implications of black box databases, few have considered the intersection of these trends. They threaten to make a scholarly understanding of media consumption difficult, as we have less and less objective sense of what’s really being presented as choices.

It’s a real tribute to Pariser’s persistence that he convinced Silicon Valley engineers to acknowledge and grapple with this reality. We’ll need many more thinkers like him to wake us from our technological somnambulism.

On the other hand, perhaps the integration of social networking into search can make search results a bit more understandable to users. Pariser suggests that even people inside Google can’t fully understand how its algorithms result in a given information environment for a user of its services:

Even if you’re not logged into Google, for example, an engineer told me there are 57 signals that the site uses to figure out who you are: whether you’re on a Mac or PC or iPad, where you’re located when you’re Googling, etc. And in the near future, it’ll be possible to “fingerprint” unique devices, so that sites can tell which individual computer you’re using. . . .

As Google engineer Jonathan McPhie explained to me, [personalization is] different for every person – and in fact, even Google doesn’t totally know how it plays out on an individual level. At an aggregate level, they can see that people are clicking more. But they can’t predict how each individual’s information environment is altered.

In general, the things that are most likely to get edited out are the things you’re least likely to click on. Sometimes, this can be a real service – if you never read articles about sports, why should a newspaper put a football story on your front page? But apply the same logic to, say, stories about foreign policy, and a problem starts to emerge. Some things, like homelessness or genocide, aren’t highly clickable but are highly important.

If people have to choose between algorithmic and friend-based personalization, the latter may be more transparent than the former. On the other hand, the Bing-Facebook combine isn’t rushing to make its own methods public, so maybe it’s a wash.

X-Posted: Concurring Opinions.