Thoughts post-ILaw 2003 [7:09 pm]
(entry last updated: 2003-07-09 19:09:26)
(I’ve been working on this long enough; in some respects, it probably won’t ever get finished - the links, for example - but I need to put this out and see what I get back. Those of you who were there, let me know!
Update: I’ve heard from Yochai that my concern about pragmatism stems from the colloquial construction of the term, while the ILaw profs were using the formal concept from political philosphy)
I found the survey that we were asked to fill out at the close of ILaw last night in my luggage. I had such mixed feelings at the close of the conference that I didn’t want to comment until I had some time to think about the week more carefully.
I thought that my moroseness at the close of ILaw was just a natural reaction to the realization that the extraordinary group of people that I met there this year was about to scatter to the four winds - not to mention the fatigue associated with blogging the sessions (I am in awe of Donna’s perseverance; I think I’ve learned my lesson and will leave such things to the pros!) However, upon reflection, I find that there’s something else to it, although it took me a couple days to put my finger on it.
The New Structure
First, the positives. As Terry Fisher described, this year’s ILaw was a significant departure from what had gone before, based in large part upon a set of structuring ideas credited to Larry Lessig. These changes have, I believe, given the program a kind of conceptual integrity that was lacking last year, although there are some rough edges still to be worked out.
A look at the lecture topics can be used to show this conceptual structure. According to my rough descriptions, we have the following course syllabus (thanks to Etienne for his help on assembling the URLs!):
- Jonathan Zittrain on Internet technologies (Donna, Jim Flowers, Lisa’s videos)
Donna, Lisa’s videos)
- Tuesday: (Etienne’s notes)
- Yochai Benkler on the Layer Model of Communication and Wireless Networks; Spectrum (Furdlog, Donna, Aaron, Jim Flowers, Lisa’s videos)
- Jonathan and Terry on ICANN and Internet Governance (Furdlog, Donna, Jim Flowers, Lisa’s videos)
- A Panel on Challenges To Creativity and IP Law (Furdlog, Donna, Wendy Seltzer, Jim Flowers, Lisa’s videos)
- Terry Fisher on Copyright Law (Furdlog, Donna, Jim Flowers, Lisa’s videos)
- Future of Entertainment Panel: F von Lohmann et al (Donna, Furdlog, John Palfrey on Terry Fisher’s Music Compensation Scheme and on Charlie Nesson’s thoughts, and Jim Flower’s notes)
(Aaron’s overall notes; Scott Rosenberg promises some, starting, it appears, with this bit on semiotic democracy; VentureBlog on Larry’s presentation skills; Jim Flower’s followup thoughts on meme propogation and conference
A first cut at this list suggests the following basic structure of the five days:
- Day 1: Background and Introduction To The Concepts of Code (with a little antidote to the pessimism of Larry’s vision in the form of the blogging panel)
- Day 2: The Layer Model of Communication and Freedom & Control at the Physical Layer
- Day 3: Copyright and Culture: Freedom & Control of Creative Expressions At the Content Layer
- Day 4: Freedom & Control in Software: The Logical Layer
- Day 5: Emerging Issues In Freedom & Control and Wrapup
Here, then, is the key structural innovation brought to the course - the merging of the layer model of communication (physical, logical and content) with the framework from Code
that Larry used to describe the different mechanisms of control: markets, law, norms and architecture. While Larry’s now-famous mandala pervades all of the course, the addition of the three-layer communication model brought a very powerful way of framing a set of issues around a particular battlefield/layer. And, because changes in any one of the layers influences communication, the presenters did not have to limit their discussion of consequences to a single layer. I found this to be particularly effective (and not just because I spent the past term working on developing a course with the indentical layer metaphor as a basis!)
Essentially, we saw the workings of the modalities of control at each of the three layers of the model of communication, with a focus on the role of law and, to a lesser extent, the other modalities in shaping both the problems and their resolution in this area.
Some Missing Pieces
What I find interesting as I reflect on the week are the other models and structures that emerged over the course of the week, several of which were left unexamined, largely because they are part of the underpinnings of most legal education. A short list:
The law as the handmaiden of equity rather than justice. This is, as I have been led to believe, a well established concept within the legal profession, but it is probably not as widely appreciated by outsiders. At several points, the audience was confronted with economic analyses of the relative costs and benefits of one type of control or another, and I’m sure that at least a few wondered when ILaw became an economics class. While it’s certainly not the place for a reopening of a long-settled debate, I would think that a summary of this current construction of the law (as well as alluding to the economics and law movement, illustrated with a little Posner) would not only help the audience understand what’s going on, but would also give the instructors a context within which to explain why articulating the importance of intangible benefits (c.f. freedom, speech) is particularly difficult in the current environment.
Alternatively, if this is a perspective that the organizers of ILaw have differences with, I think there are some obvious benefits to hearing them air their views in this context. Either way, with the large number of attendees from fields other than the law, there are good reasons for touching upon this issue, since so much of the arguments around topics in this area are based upon this sort of analysis (or the inability to conduct such an analysis).
Copyright as an instrument of government policy, rather than a natural right. Terry Fisher brought this idea out only at the close of the class, yet it’s a vitally important notion in American jurisprudence that is being systematically eroded. This was pointed out in the readings, but the fact that Terry pointed it out again on the last day suggests that it’s worth commenting on a little bit within the class. Copyright is probably the most pervasive and potent instrument of a policy that formally restricts freedom of speech, yet it is enshrined in law because the benefits of that restriction outweigh the costs.
Again, this is an idea that is part of any discussion of the evolution of the case law in this area, so the legal professionals will not need this exposition. But it’s a pretty key concept in the explanation of the directions that the law has taken in the past that people without legal training miss. And the interesting conundra (word?) that emerge are generally illuminating, at least they have been for me - (e.g. White-Smith Music v. Apollo)
But I think the hardest thing for me to work through was the almost universal assertion by the members of the ILaw teaching team that they are pragmatists when it comes to internet law.
Over the course of the week, it was perfectly clear that each member of the team brings a substantial amount of ideological baggage to the effort - and this baggage dramatically influences their work. The participants clearly do not inhabit the same indeological niche, but the claim of pragmatism is pretty hard to defend, particularly in light of not only what this group has accomplished, but also how they have accomplished it.
The claim of pragmatism was disappointing, in fact. The thing that I have found so inspiring about this group is the degree to which they hew to a very clear set of principles (e.g., freedom), and the extent to which they have the courage to pursue the consequences of the application of these principles in the realm of cyberlaw.
Perhaps what they really meant to say was that they were not dogmatic about their ideologies - that they are willing to employ what works, rather than insisting upon ideological purity.
I hope so; the realm of cyberlaw has already shown us that the consequences of poorly considered policy emerge on “Internet time,” and careful, principled consideration of both the problems and the alternatives is exactly what is needed. The good certainly can be the enemy of the perfect, and progress is only going to come with a certain amount of compromise. But, as we have seen in this area more than once, it’s also important to know the limits of compromise - at some point, principles have to trump expediency.
So, it was a great week all in all - an exposure to a set of extraordinary teachers, expounding upon a set of topics that is intellectually challenging and immediately relevant, with a host of issues that forced each participant to think carefully about the “whys” of some of the positions taken in this field today.