Ten days ago I attended the most recent Harvard/Berkman Center Internet & Society conference, the one with the grandiose title â€œUNIVERSITY â€“ Knowledge Beyond Authority.â€ The experience was both intriguing and disappointing. More below the fold.
Intriguing because I think that the conference organizers (Charlie Nesson, John Palfrey, and the rest of the Berkman Center) are on to something important when they point to the ongoing importance of certain institutions â€“ and the university perhaps most important among them â€“ in mediating a host of complex questions emerging at some important intersections: the intersection between the virtual and the material; the intersection between the self and the network; the intersection between the market and other forms of information and knowledge production, distribution, organization, and preservation. Itâ€™s a paradox that the university should occupy and define this role, this space, because the university is one of our most enduring yet most pre-market, pre-capitalist institutions. At their core, universities are positively feudal. Then again, maybe their feudalism makes universities perfectly suited for their 21st century roles.
The questions that came to mind as the conference began were ethical. The university as an institution is constructed on a core set of normative commitments about the ethics of knowledge. Those commitments are under threat, both by forces within the university and by forces without; it is by no means clear that they (or the university) will survive, or even that it should. I believe that the answer is that both should, but the dephysicalization and distribution of many of the mechanisms of information and knowledge production, etc. challenge both policymakers and academics to articulate both precisely why and precisely how. Historically, universities have embodied functional roles (produce knowledge, conserve knowledge, offer a forum for open inquiry), and symbolic and expressive roles (embody the ideals of truth to which society subscribes), and combinations of both (distribute and redistribute knowledge), all at the same time. Which of those roles survives, and what material forms should they take today?
Disappointing because the character of most of the conference conversation, which I had hoped would explore that question, was tired and narrow. â€œThe role of the university in cyberspaceâ€ quickly because â€œcopyright policy for the current university,â€ and that quickly became â€œfair use.â€ And fair use today is only rarely a conversation; it is often simply a tired exchange of statements. Content owners of various stripes largely want universities to prioritize enforcement of their copyright claims, particularly with respect to file sharing and other infringement by students. Universities could resist, if they chose, could hold out for some version of the intellectually unconstrained, romantic, pre-industrial university. Some do; advocates of the universityâ€™s position at the Harvard conference largely did so.
Both sides â€“ and there are really more than just two sides to these questions, but two will do for now â€“ might have recast their statements as points in an evolving conversation. For their part, market-based content industries could imagine that they are subject to ethical imperatives other than private property and profit maximization as an inducement to â€œcreativityâ€ in the marketplace. Certainly, at the conference there were nods in that direction, but it was unclear both whether practice follows theory (can scholars and educators clear rights with entertainment companies as readily as content reps said they can?), and whether the content industry acknowledges a social obligation that emanates from any source other than themselves. Could it be that market actors are subject to species of ethical obligations that take clearer, more material form in non-market contexts? If you own the copyright to a motion picture, do you have an ethical obligation to share that work with the university community? And if so, what concrete form might that obligation take?
I donâ€™t want to pick on the content industries; universities could be more creative in their thinking as well. On the one hand, the romantic vision of the university as open intellectual space is not well-represented in actual practice; universities might bone up on what it means in concrete terms to encode their historic missions by supporting faculty and students alike. On the other hand, the university might in different contexts rethink that romantic vision, given the fact that universities today, and research universities especially, are quite enthusiastic about owning and exploiting IP rights in their own names. I donâ€™t mean to suggest that the existence of technology transfer offices means that universities have forfeited their moral standing, only that their moral standing is a complicated thing, and if the university wants to claim the ethical high ground, then it may have some work to do both rhetorically and materially. If a university owns the patent to its research, does it have an ethical obligation to share that research with outsiders, and if so, on what terms? Or the university might choose to abandon the romantic vision, wholly or partly; the questions again are when, and how.
The university, like the market-based content industries, is in fact a market/non-market blend. Both institutions face the same dilemma (where, when, why, and how to draw that market/non-market line), though in different proportions or to different degrees, and they bring to that dilemma different histories and expectations. When those institutions confront each other, dealing with their different versions of the dilemma isnâ€™t a point/counterpoint Jane-You-Ignorant-Slut exchange, or it shouldnâ€™t be, though thatâ€™s the form that (in more polite terms) some of IS2K7 took. It is, as I suggested above, a conversation among institutions with related interests and related problems, perhaps (I suggest, romantically) guided by a common ethical framework vis-Ã -vis information and knowledge and the people who produce it and those who benefit from it.
From an institutional perspective, the university should be a perfect home for that kind of conversation, and Harvard might have been a fine setting for it. And from a legal and policy perspective, fair use also could have been a decent setting for that conversation. Fair use is good at some things and bad at others. In its worst, recite-the-four-factors version, it has been spectacularly bad as a vehicle for explicit conversations of this sort. In its better, more pragmatic version, I believe that fair use is a pretty good vehicle for this, or at least that it could be. Unfortunately, that conversation didnâ€™t happen, at least not this time around.