Am VERY proud to report that the NEW YORK LAW SCHOOL LAW REVIEW is a founding signatory. We request a license not an assignment from authors. We encourage posting on SSRN. We take no more than is necessary to print the law review on paper and on the web and require nothing further. Since our Publisher is such an accomplished author, that might explain this reasonable (and all too atypical) stance.
Thanks to Ernie Miller (with much link-love) for following up on my quick musings and frustration over what so frequently strikes me as an absence of a positive, progressive cyber-agenda. It seems that Julia Mahoney has a paper out (haven't read it yet) about this same (?) dystopic vision.
Ernie is absolutely right and fair to point out that there are fires to fight on many fronts:
Part of this is, of course, because even negative liberty has been under constant attack for the past decade. We copyfighters have barely fought off things like the INDUCE Act and Broadcast Flag, which doesn't leave much time for focusing on positive goals.
And he does point out myriad examples, for example of alternative compensation schemes or, I might add, Creative Commons, that represent constructive steps forward.
The main problem, I think, is that most people really don't care about copyright; they don't realize how important to a democratic culture it is. We don't lack for potential progressive prescriptions. We lack agreement on them and we lack the marketing.
While I don't disagree with this statement and the shared belief that there's a lot of work to do to make clear how fundamental the rights and liberties at stake are, I still want to emphasize that having a progressive agenda is not the same as having shared values or belief in the First Amendment, the flourishing of creativity or innovation. The frequent problem, in my view, is not one of ends but of the means to them. The prevailing ethos in many of the most committed circles is that to leave well enough alone is the best route. Or perhaps the only route in an environment in which we only have the resources to fight off proposals like the Induce Act and no time or energy left to create a New Deal for Cyberspace.
Leave well enough alone is not the same as the "market will fix all" for these same people are the ones who teach the rest of us that we have more to fear from private corporations than from government (or at least as much). Nonetheless, there are tremendous impediments -- time, money, marketing and an enormous chasm between the libertarian and the communitarian cyber-ethos which transcends technology and goes straight to one's vision of the good life.
But, the remedy, as I see it (because it's what I enjoy and do best) is not to be found only in pursuing a new legislative agenda. What my earlier post was intended to point out is that technology design itself can be brought to bear to strengthen our democratic culture and its values. By technology design, I am not simply referring to network architecture or an open source back-end. I believe we must exploit the "front end" and the design of the interface to shape social relations. It is the front end, the screens through which we interact, not simply with the computer, but with each other that are the best tools for anyone and everyone to use to encourage more participatory, engaged and deliberative ways of living and working. To foster freedom of expression and creative flourishing, we need to create the tools that enable groups to solve problems, make decisions, resolve conflict and govern themselves. Like law, technology, too, determines the roles and rights available to us. But technology also affords us new opportunities for regulating our own social conditions. Technology can make the rules, structures and practices of the groups in which we work manifest and thereby give rise to social institutions.
In fact, the screen, rather than legislation, offers a more flexible alternative that provides choices among the institutions to which we belong. It's a finer-grained tool than legislation and, in some cases, the more appropriate way to realize the shared value, not only of free expression but of diversity.
What do I mean by this? Show me some examples, you say? Stay tuned. This was the subject of my talk on Visual Deliberation at Stanford last week. If I can ever finish this draft on on-line identity that was the start of this rant in the first place, I'll post that.
Am just in the midst of writing an essay about the impact of new social software technologies on our legal approaches to on-line identity. As usual, I am critiquing the prevailing view, which problematizes on-line identity. Because we think of identity as property, cyberlaw focuses on preventing identity theft or safeguarding us against the abuses of identity behind the veil of anonymity that the Internet provides. What is rarely discussed (a recent article by Susan Crawford in the New York Law School Law Review is an exception to this) is how to treat identity "positively" as something to be fostered, protected and nurtured on-line.
I say "as usual" not because I am playing social critic again but because cyberlaw so predictably tends to focus on negative liberty rather than positive rights. In other words, how can I be free from abuse? Free from constraint? Free from censorship? This reactive stance has characterized cyberlaw for the last decade of its existence. Our agenda is full with staving off excesses of intellectual property "protection" and privacy-violating snoops. Far too little attention is paid to positive prescriptions. How can we use law and technology to enable greater innovation, creativity, productvity and freedom? Being free from the law and free from intrusive code is not the only way to deepen human happiness. Rather, the legal code as well as software code -- designed right -- can promote the same shared values.
This is a problem, not only of the cyberlibertarian ethos but it is also endemic to the left, generally. (Interestingly, cyberlibertarianism is, for most people, a left-wing stance). We are reactive. We fight against dangerous legislation. We descry attempts at censorship, governmental or corporate. We say "leave us alone." We do not ask often enough: what legislation do we need to promote the public interest? How can we strengthen a strong democratic culture and further social justice? How can we harness the affordances of the new interfaces and new media so prevalent in our lives to structure better social conditions?
This is, in part, because it is harder for a fractured left to agree on shared values except those of negative liberty. Enacting positive, progressive legislation is out of fashion. It is also hard work. We need to spend more time and energy on re-thinking a positive, progressive agenda for cyberspace by proposing legislation in the public interest, rather than reacting to all legislation as the anathema.
Yet we also ignore the possibility of creating positive, progressive code: designing for democracy. This is not a new observation. Not only have others made it, but I have been intoning the same for a decade. But I am constantly struck on every issue from copyright policy to identity to privacy how little attention we pay to the way that intelligent design can not only solve problems but improve the human condition.
We've already built two "galleries." The Gallery is a website to showcase innovative tools and practices in such a way that they are both easy to upload/share and download/browse. Think of it as Ofoto meets EDemocracy.
The IT in Law Teaching gallery is a way to share and trade ideas for how to use technology in the (legal) classroom and to improve legal education outside the classroom.
Now we are building a Democratic Technologies Toolkit, a new Gallery to organize and teach basic building block tools needed to create social software. In order to understand how the design of technologies shape social relationships and to analyze how the affordances of specific technologies changes social interactions, we have to first know what the technologies are. What are the new interface tools for mapping, tagging, information visualization, conversation and annotation? How do they work? How might they be combined to create on-line spaces for the activities of democratic life, including activism, participation, lawmaking, voting and even revolution?
We want to create successful problem solvers who can wield new tools effectively to create solutions to complex problems and that means giving people access to the basic building blocks.
The new Gallery will be launched in time for I-Law at Harvard Law School where Prof. John Palfrey and I are doing a module on Internet and Politics.
For more on why I designed the Gallery in the first place....