Julie Cohen is giving a Berkman lunch on “configuring the networked self.” She’s working on a book that “explores the effects of expanding copyright, pervasive surveillance, and the increasingly opaque design of network architectures in the emerging networked information society.” She’s going to talk about a chapter that “argues that “access to knowledge” is a necessary but insufficient condition for human flourishing, and adds two additional conditions.” (Quotes are from the Berkman site.) [NOTE: Ethan Zuckerman's far superior livebloggage is here.]

NOTE: Live-blogging. Getting things wrong. Missing points. Omitting key information. Introducing artificial choppiness. Over-emphasizing small matters. Paraphrasing badly. Not running a spellpchecker. Mangling other people’s ideas and words. You are warned, people.

The book is motivated by two observations of the discourse around the Net, law, and policy in the U.S.

1. We make grandiose announcements about designing infrastructures that enable free speech and free markets, but at the end of the day, many of the results are antithetical to the interests of the individuals in that space by limiting what they can do with the materials they encounter.

2. There’s a disconnect between the copyright debate and the privacy debate. The free culture debate is about openness, but that can make it hard to reconcile privacy claims. We discuss these issues within a political framework with assumptions about autonomous choice made by disembodied individuals…a worldview that doesn’t have much to do with reality, she says. It would be better to focus on the information flows among embodied, real people who experience the network as mediated by devices and interfaces. The liberal theory framework doesn’t give us good tools. E.g., it treats individuals as separate from culture.

Julie says lots of people are asking these questions. They just happen not to be in legal studies. One purpose of her book is to unpack post modern literature to see how situated, embodied users of networks experience technology, and to see how that affects information law and policy. Her normative framework is informed by Martha Nussbaum’s ideas about human flourishing: How can information law and policy help human flourishing by providing information to information and knowledge? Intellectual property laws should take this into account, she says. But, she says, this has been situated within the liberal tradition, which leads to indeterminate results. You lend it content by looking at the post modern literature that tells us important things about the relationship between self and culture, self and community, etc. By knowing how those relationships work, you can give content to human flourishing, which informs which laws and policies we need.

[I'm having trouble hearing her. She's given two "political reference points," but I couldn't hear either. :(]

[I think one of them is everyday practice.] Everyday practice is not linear, often not animated by overarching strategies.

The third political reference point is play. Play is an important concept, but the discussion of intentional play needs to be expanded to include “the play of circumstances.” Life puts random stuff in your way. That type of play is often the actual source of creativity. We should be seeking to foster play in our information policy; it is a structural condition of human flourishing.

Access to knowledge isn’t enough to supply a base for human flourishing because it doesn’t get you everything you need, e.g., right to re-use works. We also need operational transparency: We need to know how these digital architectures work. We need to know how the collected data will be used. And we also need semantic discontinuity: Formal incompleteness in legal and technical infrastructures. E.g., wrt copyright to reuse works you shouldn’t have to invoke a legal defense such as fair use; there should be space left over for play. E.g., in privacy, rigid arbitrary rules against transacting and aggregating personal data so that there is space left over for people to play with identity. E.g., in architecture, question the norm that seamless interoperability makes life better, because it means that data about you moves around without your having the ability to stop it. E.g., interoperability among social networks changes the nature of social networks. We need some discontinuity for flourishing.

Q: People need the freedom to have multiple personas. We need more open territory.
A: Yes. The common pushback is that if you restrict the flow of info in any way, we’ll slide down the slippery slope of censorship. But that’s not true and it gets in the way of the conversation we need to have.

Q: [charlie nesson] How do you create this space of playfulness when it comes to copyright?
A: In part, look at the copyright law of 1909. It’s reviled by copyright holders, but there’s lots of good in it. It set up categories that determined if you could get the rights, and the rights were much more narrowly defined. We should define rights to reproduction and adaptation that gives certain significant rights to copyright holders, but that quite clearly and unambiguously reserves lots to users, with reference to the possible market effect that is used by courts to defend the owners’ rights.
Q: [charlie] But you run up against the pocketbooks of the copyright holders…
A: Yes, there’s a limit to what a scholar can do. Getting there is no mean feat, but it begins with a discourse about the value of play and that everyone benefits from it, not just crazy youtube posters, even the content creators.

JPalfrey asks CNesson what he thinks. Charlie says that having to assert fair use, to fend off lawsuits, is wrong. Fair uyse ought to be the presumption.

Q: [csandvig] Fascinating. The literature that lawyers denigrate as pomo makes me think of a book by an anthropologist and sociologist called “The Internet: An Ethnographic Approach.” It’s about embodied, local, enculturated understanding of the Net. Their book was about Trinidad, arguing that if you’re in Trinidad, the Net is one thing, and if you’re not, it’s another thing. And, they say, we need many of these cultural understandings. But it hasn’t happened. Can you say more about the lit you referred to?
A: Within mainstream US legal and policy scholarship, there’s no recognition of this. They’re focused on overcoming the digital divide. That’s fine, but it would be better not to have a broadband policy that thinks it’s the same in all cultures. [Note: I'm paraphrasing, as I am throughout this post. Just a reminder.]

A: [I missed salil's question; sorry] We could build a system of randomized incompatibilities, but there’s value in having them emerge otherwise than by design, and there’s value to not fixing some of the ones that exist in the world. The challenge is how to design gaps.
Q: The gaps you have in mind are not ones that can be designed the way a computer scientist might…
A: Yes. Open source forks, but that’s at war with the idea that everything should be able to speak to everything else. It’d

Q: [me] I used to be a technodeterminist; I recognize the profound importance of cultural understandings/experience. So, the Internet is different in Trinidad than in Beijing or Cambridge. Nevertheless, I find myself thinking that some experiences of the Net are important and cross cultural, e.g., that Ideas are linked, there’s lots to see, people disagree, people like me can publish, etc.
A: You can say general things about the Net if you go to a high enough level of abstraction. You’re only a technodeterminist if you think there’s only way to get there, only one set of rules that get you there. Is that what you mean?
Q: Not quite. I’m asking if there’s a residue of important characteristics of the experience of the Net that cuts across all cultures. “Ideas are linked” or “I can contribute” may be abstractions, but they’re also important and can be culturally transformative, so the lessons we learn from the Net aren’t unactionably general.
A: Liberalism creeps back in. It’s acrappy descriptional tool, but a good aspirational one. The free spread of a corpus of existing knowledge…imagine a universal digital library with open access. That would be a universal good. I’m not saying I have a neutral prescription upon which any vision of human flourishing would work. I’m looking for critical subjectivity.

A: Network space changes based on what networks can do. 200 yrs ago, you wouldn’t have said PAris is closer to NY than Williamsburg VA, but today you might because lots of people go NY – Paris.

Q: [doc] You use geographic metaphors. Much of the understanding of the Net is based on plumbing metaphors.
A: The privacy issues make it clear it’s a geography, not a plumbing system. [Except for leaks :) ]

[Missed a couple of questions]

A: Any good educator will have opinions about how certain things are best reserved for closed environments, e.g., in-class discussions, what sorts of drafts to share with which other people, etc. There’s a value to questioning the assumption that everything ought to be open and shared.

Q: [wseltzer] Why is it so clear that it the Net isn’t plumbing? We make bulges in the pipe as spaces where we can be more private…
A: I suppose it depends on your POV. If you run a data aggregation biz, it will look like that. But if you ask someone who owns such a biz how s/he feels about privacy in her/his own life, that person will have opinions at odds with his/her professional existence.

Q: [jpalfrey] You’re saying that much of what we take as apple pie is in conflict, but that if we had the right toolset, we could make progress…
A: There isn’t a single unifying framework that can make it all make sense. You need the discontinuities to manage that. Dispute arise, but we have a way to muddle along. One of my favorite books: How We Became Post-Human. She writes about the Macy conferences out of which came out of cybernetics, including the idea that info is info no matter how it’s embodied. I think that’s wrong. We’re analog in important ways.