Ideological Tensions in Law & Technology Scholarship

We’ve just started Mike’s WIPIP conference in Pittsburgh, and it’s already going well. Eddan Katz gave an interesting talk on philosophies of technology and the criminalization of DRM circumvention technology (among other copyright contraband).

I’m piqued by the tension between two divergent progressive approaches to technology. On the one hand, many progressive scholars want to closely regulate guns, nanotech, cloning, etc. But the “copyleft” wants to scale down regulation of new communications technology and software, such as P2P. Fred Yen has directly addressed this tension in his treatment of secondary liability, comparing the “guns don’t kill people” line to the “P2P doesn’t steal music” line. He does a good job interrogating the application of secondary liability in either context. But I think this division portends some deeper conflicts in the “copyleft” in the future.

The “right” also faces some difficulties here. Consider, for instance, the constant solicitude for future generations expressed in justifications of strong IP laws; “we may be denying access to many in the present, but only in order to create incentives for innovation that will help the future.” The time-horizon for this advocacy stretches from decades into the future to eternity. But what do we hear from many conservative economists about the environment? There, it seems like the future always gets discounted….resurrecting Keynes’s old dictum “in the long run, we’re all dead.” If we’re going to craft copyright policy with an eye to the “long future,” we should do the same for the environment. (I’ve tried to map some other analogies between the fields here; be sure to check out the cultural environmentalism podcasts available here.)