Yearly Archives: 2012

If Code Is Law, Then Coders Are Lawyers

Dec 12, 2012 James Grimmelmann1 comment

Legal academics who write about norms risk becoming armchair anthropologists.  But the armchair is precisely the place anthropologists avoid; good ethnography cannot be done alone.  As one of my college professors said, “The specific antidote to bullshit is field work.”

E. Gabriella Coleman has spent much of her career doing field work with a computer.  Her first monograph, Coding Freedom: The Ethics and Aesthetics of Hacking, is based on an extended study of free software programmers.  She lurked on their email lists, hung out in their IRC chat rooms, went to their conferences (she even helped organize one herself), and spent countless hours simply talking with them about their work.  The result is a fascinating study of a community substantially defined by its tense engagement with law. (More recently, she has been closely observing the anarchic carnival-esque collective paradoxically known as Anonymous, with equally fascinating results.

On one level, this is a book to savor simply for its empathetic ethnography.  The “hackers” it describes–despite the pejorative, transgressive overtones that years of media overreaction have given the term–play at the intersection of esthetic beauty and practical utility.  Coleman describes coding as a species of creative craft work, with a perceptive eye for detail.  One of the best passages is dedicated to a close reading of a code snippet written by the free-software advocate Karl Fogel in which he grinds his teeth in frustration at having to work around a bad design decision in another piece of software.  He creates a function named “kf-compensate-for-fucking-unbelievable-emacs-lossage” to solve the problem.  As Coleman explains, quoting Erving Goffman:

Fogel’s code is an apt example of “face work”–when a hacker is sanctioned to perform a “line,” which is the “pattern of verbal and nonverbal acts by which he expresses his view of the situation and through this his evaluation of the participants, especially himself.” Within such a presentation, hackers can declare and demarcate their unique contribution to a piece of software while at the same time proffering technical judgment. One may even say that this taunting is their informal version of the academic peer-review process.  In this particular case, Fogel is declaring the code he patched as an utter failure of the imagination.

Anyone who thinks about programmers, open source, online communities, or the politics of intellectual property should have a copy of Coding Freedom on the shelf.  It is an invaluable portrait of how free-software coders work, individually and collectively.

What makes Coding Freedom truly stand out, however, is that “free software hacker” is an identity significantly constituted in relation to the law.  To write free software is to choose to release one’s code using a carefully crafted copyright license; Coleman’s hackers elevate this legal issue to prime significance in their working lives.  Coding Freedom is thus both the oft-told story of a legal idea–free software–and the lesser-known story of how numerous hackers, following personal but parallel tracks, have engaged with copyright law.

Coleman describes two crossing trajectories in copyright: the rise of an increasingly expansive domestic and international copyright system and the simultaneous rise of the free software movement, The former is bent on restricting uses; the latter on enabling them.  The two collided in the early 2000s in the fights over the implementation of the DMCA, particularly the DeCSS case and the arrest of Dmitry Sklyarov.  The result was the politicization of copyright in code: inspired by legal scholars and free software evangelists, many hackers saw themselves as participants in a struggle against a repressive copyright system.

Coding Freedom makes these familiar stories fresh. Free-software hackers were receptive to a fight-for-your-rights narrative precisely because they were already embedded in a professional context that foregrounded the political and ethical implications of copyright law.  What is more, they engaged with copyright law as law, drafting licenses to achieve a free-software goals, endlessly debating the minutiae of license compliance, and critiquing copyright’s inconsistencies with the playful creativity of appellate litigators.

Coleman artfully demonstrates how the anti-DMCA trope of “code is speech” resonated with hackers’ lived experiences creating software alone and together.  They were used to communicating both their individual expression and their shared endeavor in source-code comments and elegant algorithms.  When Seth Schoen critiqued the DMCA’s prohibition on circumvention tools by rewriting
DeCSS “in haiku, he was drawing on a long hacker tradition (also artfully described by Coleman) of linguistic play, of writing programs not merely to compute but also to amuse.

This leads into a thoughtful discussion of the extent and limits of a hacker-oriented critique of the existing order of things.  On the one hand, some coders have been politicized by their engagement with copyright, and connect it to a larger transformative movement concerned with the intellectual commons and global access to knowledge.  On the other, free-software licenses are built around a deep core of apolitical neutrality: they pointedly refuse to take any position on the relative worth of what downstream users use the software for.  Feeding the homeless is fine; so is building doomsday devices.

Coding Freedom offers a nuanced analysis of hackers sometimes-closer sometimes-further dance with liberal ideals – particularly in its clever discussion of how Debian (a leading free software project) cycles between majoritarian democracy, technical meritocracy, and informal consensus.  None of these governance modes is fully satisfactory, either ideologically or pragmatically: each has broken down as Debian has gone through growth spurts and awkward adolescent phases.  But at the same time, each of them reflects larger commitments its members hold dear: equality, excellence, and collaboration.

Debian — which Coleman describes as a Coverian nomos— is the heart of the book.  Its social practices of production, education, and self-governance receive careful treatment.  In an early chapter, Coleman convincingly argues that hard work of creating and sustaining hacker communities does not happen solely online.  She gives a thoughtful description of “cons” — the regular gatherings at which hackers come together to teach each other, discuss project direction, code intensely, and socialize.  She convincingly argues that a con is a ritual-laden lifeworld, an in-sense experience that helps hackers understand themselves as part of a larger collaborative collective. These and other in-person interactions are an important part of the glue that makes the global networked hacker public possible; online and offline appear as complements in her story, rather than as modalities in opposition.

Coleman’s portrait of how hackers become full-fledged members of Debian is eerily like legal education.  They learn a specialized subset of the law, to be sure, with a strong and narrow emphasis on a thin slice of copyright.  But the hackers who are trained in it go through a prescribed course of study in legal texts, practice applying legal rules to new facts, learn about legal drafting, interpretation, and compliance, and cultivate an ethical and public-spirited professional identity.  There is even a written examination at the end.  Law schools and regulators ought to be interested in her careful portrait of informal but successful legal training in a lay community.

There is a deep parallel between software and law as formal rule-bound systems of control and creation.  Coding Freedom breaks important ground in teasing out some of the implications of this connection.  Hopefully others will also take up the project.

Auto-Reportage and the Enlightened User

Nov 6, 2012 Ian Kerr

When I first encountered Nora Young’s new book —The Virtual Self—I thought, omg, another book about that?! Don’t get me wrong; earlier this year I devoured Julie Cohen’s Configuring the Networked Self just as quickly as I did Daniel Solove’s The Digital Person back when it first came out.

But if I include an exciting new edited volume by Cynthia Carter Ching and Brian Foley released earlier this year, then by my count there are more than a dozen books in the last couple of years about constructing the self in the digital world.

It’s a good topic and if I had the jets I would read them all. Eventually. But, as soon as I saw that Nora had a book out in this domain, I immediately bought and read it. And, let me tell you, it jots well!!

This should come as no surprise to any fan of CBC radio. In my view, Nora Young’s weekly program, Spark, is probably the smartest show there is on digital culture and 21^st century living. On the radio, she has this amazing ability to do deep, hard, careful thinking in a lighthearted and conversational manner. The same is true of her first book.

Academics: don’t be fooled by its informal style or paucity of footnotes. This is a meticulously crafted, authoritative investigation of one of the more interesting shifts in digital media—a study of the cultural explosion of self-tracking.

More and more, people track what they eat, or how they move. They register the places they go during the day using their cellphones, record their mood changes, rate the restaurants they’ve eaten in, track the length and pace of their runs. You can too: you can sign up for any number of online services, many of them free, that let you track the movies you’ve watched, the purchases you’ve made, the routes you have walked, or the beverages you’ve consumed. As the saying goes, there’s an app for that. More and more of us are keeping track of the statistical minutiae of daily life, leading lives that are increasingly numerically documented. But why? What is the particular pleasure in seeing daily experience converted into numbers? (P. 1-2)

Young is smart enough to anticipate the response of her more cynical readers: “I can imagine what you are probably thinking right now: that self-tracking is a kind of behavior that neurotics and narcissists engage in, a sort of digital scab-picking that most people wouldn’t even dream of.” (P. 4).

But Young understands the practice more charitably and, consequently, more profoundly. This isn’t just about Weight Watchers or the Running Room gone digital. It is a much broader range of digital culture that includes everyone who has updated his or her status online.

As Young explains, “[w]hat is posting status updates on Facebook if not a sort of ritualized documentary practice that you freely share with others, a way of taking the shifting moments of mood and behavior and preference and activity and staking them to the ground?” (P. 4-5) “I think of the status update as a sort of Horton Hears a Who means of saying ‘I am here. I am here! It’s a continual registering of presence, and is, in a sense, a way of being ‘seen’ by others. It’s the urge to create the self as a documented, persistent, even curated, object.” (P.24-25)

Her insight of the digital self as an intentionally curated object (rather than what Haggerty and Ericson have called the “surveillant assemblage”) extends the subject under investigation beyond online tracking. Hence Young’s totally awesome coinage of an intriguing new term: auto-reportage.

If I understand Young correctly, an important element of digital technologies and culture is that they permit a radically enhanced ability to create extensive bodies of documentary coverage of the individual— reportage in the journalistic sense. But in this case, the “eye witness” report is by the individual him- or herself—auto, as in ‘autobiography’ but also in the sense of ‘automatic’.

Auto-reportage is “the continual registering of attitudes, tastes, and whereabouts.” (P. 59) Young sees it as fulfilling our human predisposition to apophenia: the tendency to see patterns in random data, offering “a sense that life isn’t random or arbitrary, that, over time, the trivial acts of our mundane daily life shape a picture of who we are. We see our data bloom into patterns like a kind of emergent intelligence, becoming a self-generated portrait.” (P .48) “This sharing self is often dismissed as narcissistic, but I don’t think that is it at all.” (P. 63)

With this, Young offers us a very different take on social media. One of my favorite aspects of this work is that it casts aside the received view that we are all stupid users who are ourselves to blame for the harms of over-sharing. Young treats her readers to a much more nuanced, original, interesting, sympathetic and persuasive account of auto-reportage, tying it back to the American Enlightenment and, before that, the European tradition of keeping diaries and journals.

Her poster-fella is none other than Benjamin Franklin who, in his Poor Richard’s Almanack, undertakes “the bold and arduous project of arriving at moral perfection”, and offers a methodology for achieving it. (P. 32). Franklin’s project involved the enumeration of a list if virtues and a paper-based means of tracking lapses and successes. Franklin’s goal: “I should be happy in viewing a clean book, after thirteen weeks’ daily examination (P. 34). Not surprisingly, Franklin’s approach was empirical and scientific. Franklin’s ultimate objective was to manage his interior states by making them more objectively observable.

Young tells us that we “share with him an understanding of the self as a project to be undertaken and observed. … To aim for this personal, individual betterment, our self-tracking also shares with Franklin’s the drive toward a sort of personal accountancy. This is perhaps what is most familiar to us about Franklin’s little book; the drive to document the self, to create a vision of ourselves that we can refer to, track, and evaluate.” (P. 37)

By seeing the incredible potential for individual agency in auto-reportage, Young provides a much-needed account of our ability to transcend the superficial, egomaniacal understanding of digital culture. Instead, she thinks we should observe and understand our virtual selves as more enlightened aspirations regarding the potential for moral development through personal accountancy.

Through a series of chapters that very attentively explore of the implications of the ‘data-mapped self’, the coming age of ‘big data’, and the pernicious use of legal instruments like standard form contracts to sabotage privacy, Young not only recognizes the perils of auto-reportage but also offers some interesting prescriptions.

Among them, in the final two chapter of the book, she encourages us all to become data activists. “Who says you ought to list the commodities that you are interested in as a way of describing yourself? … It’s our choice where we choose to track our data, and we can choose our tools wisely. … If the goal of these technologies is partly to give us insight into ourselves, we ought to think in a much more open-ended and critically minded way about what they are measuring and tracking.” (P. 194-95)

Although much of the book expresses important concerns about how to protect personal privacy in a world where self-tracking is mediated by corporations, Young also expresses great hope in the “potential for us to opt into using self-tracking for the public good.” (P. 198) She believes that “we can map our communities, our neighborhoods, and our lives according to the values we articulate.” (P. 199)

Part of the problem to date, she thinks, is that we have spent too much time focusing merely on the relationship between individuals and corporations. The exciting thing, she thinks, is that the data maps we create through self-tracking offer feedback loops that afford us a deeper understanding of ourselves, and how we might apply those to the world around us. It is not just about stroking consumer preferences. Self-tracking and auto-reportage enable enlightened users to connect with what we truly value as a community while, at the same time, bringing our digital selves “back to the ground, back to the physical.” (P. 203)

To the cyberlaw-types reading this review, the issues addressed in Young’s book may not appear entirely new, as they might to the uninitiated—arguably the book’s target audience. Still, Nora Young offers even the most seasoned cyberians some very fresh perspectives.

For example, her novel and compelling account of enlightened self-tracking provides an exciting counter-narrative to the superficial, ridiculous, reductionist approach adopted more and more by our courts in determining reasonable expectations of privacy. Of course we don’t abandon or waive privacy expectations whenever we auto-report. Although this may be a well-entrenched intuition for all those who reflect regularly on privacy or the 4th Amendment, Young offers a robust explanatory account of why this is so. Privacy lawyers should pay attention.

Young also expresses important concerns about the ease with which standard form contracts have displaced our ability to be data activists. According to Young, “we ought to be thinking differently about the sorts of contracts ordinary citizens sign with online companies.” (P. 178). Young further prescribes the need for new laws that limit the ability of data collectors and aggregators to use standard form contracts to undermine moral development and treat self-trackers as mere means to corporate ends.

Although law is not the primary domain of The Virtual Self, this lovely piece of intellectual prose motivates legal thinking. It has inspired me to try to tackle some of these looming social issues.  I hope it does the same for you.

Just a Little Bit of History Repeating

Sep 10, 2012 Rebecca Tushnet

Peter Decherney has written an excellent book about the ways in which copyright laws have shaped and responded to the movie industry in the US.  Professor Decherney, who, not incidentally, was instrumental in achieving the first context-specific exemption for ripping DVDs (for use in teaching film studies, renewed in the 2009 cycle), has a sharp eye for the way the movie industry has exploited and reacted to law as part of its business models over time.  He suggests that the usual reaction of the industry to legal rulings has been self-regulation either to confirm or to avoid the formal law, depending on what works best for the people in charge.

History repeats, not just in the oft-told story of new media relying on unauthorized copying from old media—plays into films, for example—but also in the smaller details.  The relationship between technological measures designed to prevent copying and unauthorized copying, for example, goes back to the start of moviemaking, when different producers used film with different sprocket holes in order to preserve their control over their own preferred, often patented, technologies.  This incompatibility didn’t deter copying, though.  Instead, it led people who wanted to show movies to make their own copies to fit on their own equipment, just as technical protection measures still do today.

Decherney begins early in the movies’ history, when it was unclear whether the performances therein qualified for copyright.  In some cases, legal decision-makers deemed films, which were much lighter on plot than the texts we think of as movies today, insufficiently dramatic to be legally protected.  In other instances, judges considered films immoral.  As is consistently the case with copyright, sex confounds the law.  It was also unclear who was responsible for a recorded performance, assuming that the recording infringed someone else’s right; in one important case, a film company claimed that it wasn’t responsible for infringing the novel Ben-Hur because it had merely filmed a chariot race staged by the Brooklyn Fire Department.  (The novel sparked a vogue for such recreations, which just confirms my belief that media fandom is everywhere.)

Later, studios fought with directors over artistic control. When films were first being edited for television broadcast, critics often worried over their “emasculation,” a gendered term indicating some of the cultural meanings of control over broadcast versions.  As Decherney points out, the passage of time turns outrages against art into high art.  Just as directors for years fended off charges that they were mutilating novels and plays in their adaptations, now directors became believers in the inviolability of their own art.  Their quest for recognition as auteurs was largely successful outside the law, but largely a failure within the US legal system.

Hollywood’s history with copyright law is full of these ironies, including the studios’ fear of the VCR that ultimately brought them great riches.  Decherney points out that Disney, one of the great opponents of the VCR, was a niche studio until the profits enabled by videotape sales gave it the capital to fund its next great wave of films.

More recently, Decherney argues, 1970s avant-garde filmmaking developed in the context of various assumptions about what could legally be done, especially with music. Even when these assumptions didn’t exactly follow the law, they shaped behavior. “Underground” works were ignored by copyright owners, but still used music cautiously, and their makers licensed rights in order to show them at international festivals or on TV. Kenneth Anger’s “avant-garde classic Scorpio Rising (1964) … freely used old film clips, advertisements, and cartoons. Some viewers were shocked by the sexual situations depicted in the film. Many filmmakers were more surprised by Anger’s flagrant use of popular music to create counterpoint and commentary. Anger’s 30-minute film used a ‘wall-to-wall’ string of popular hits ….” What they didn’t know was that Anger had actually cleared the rights for the songs (though apparently for nothing else).  This more than doubled his budget and cost more than the total budget of most avant-garde films.

Martin Scorcese watched Anger’s film and was shocked—his NYU professors had always told him not to use music in a student film. He said: “That gave me the idea to use whatever music I really needed.” While film’s gatekeepers enforced strict rules on music, refusing to consider fair use at all, Scorcese decided to use unlicensed music in his own student films.  This practice got him ready to make breakthrough uses of music, this time licensed, in his later feature films. Among the complicated lessons here is that “misinformation can be as powerful as accurate information.”  Another is that tomorrow’s lasting art comes from experimentation, often experimentation perceived as illegitimate by today’s gatekeepers.  When we suppress the amateur, among the costs is that we suppress tomorrow’s professionals.

Decherney also tells the story of the unusual case in which experimental video was suppressed by copyright owners: Todd Haynes’s 1987 Superstar: The Karen Carpenter Story, blocked not by Mattel but by Richard Carpenter. Haynes decided to proceed without licensing the music—based in part on his beliefs about Scorpio Rising—but was ultimately forced to stop allowing it to be shown. Of course, this all made Superstar more attractive as a bootleg, and it’s now even easier to find.  Haynes’s story created its own myths about copyright and trademark overreaching among filmmakers, even though Decherney didn’t find any other instances of such legal threats until the rise of online video sites like YouTube. Hollywood in general hasn’t been very aggressive about pursuing self-proclaimed video artists, in part, Decherney suggests, because the law of fair use is “underdeveloped and highly unpredictable” in this area.  In addition, the economic harm from video artists’ use was realistically nonexistent and the public relations risks are real.

Decherney argues that YouTube was not a disruptive technology because it created a video-sharing culture.  Plenty of people were primed to share their videos already. Instead, he suggests, YouTube brought a number of different video-making cultures—and their expectations around copyright and fair use—into contact and occasional conflict, and made them all more visible to each other and to copyright owners. “The fans, avant-garde artists, home video makers, and other fair use communities had spent decades learning when they should worry about attracting the attention of copyright holders…. They all became subject to increased surveillance, and their cultures of fair use were homogenized as large media companies sought one-size-fits-all solutions to employing the DMCA to control copyright infringement.”  This creates a need for continued scholarly and activist engagement in pushing back against the (new) norm of total copyright owner control that the industry would like to establish.

Hollywood’s Copyright Wars works as historical narrative and contemporary reminder: the law’s role in film’s creative process is not and has never been as simple as providing incentives for creation.  Decherney’s readable book provides a century of evidence about the complicated relationship between film, law, and power.

The Player of Games

Jul 12, 2012 Andres Guadamuz

Mainstream coverage of gaming regulation has usually centered on the possible danger of violent games to children, usually accompanied by stills from the latest Grand Theft Auto, Call of Duty, or Mortal Kombat to instil a righteous level of outrage in the public. The underlying message in most of these stories ranges from “something must be done about this” to “ban this filth.” Thankfully, such often uninformed commentary has not been translated into legal scholarship, where the coverage has been more nuanced. With few exceptions, authors dealing with the nascent field of gaming regulation have produced a growing body of work that is both thorough and well-written. A recent addition to the group of scholars interested in games is Daithí Mac Síthigh from the University of East Anglia in the UK, and soon to join the University of Edinburgh.

In Legal Games: The Regulation of Content and the Challenge of Casual Gaming, Mac Síthigh tackles both the public perception of games regulation in the UK, and the actual practice of such regulation. He comments that most legal studies into games fall into three categories: the study of game production and development, studies into the debate on the effects of video game violence, and more rarely discussions about copyright. Mac Síthigh accurately comments that some of the higher level discussions in gaming studies, for example, the literature that studies the ludic nature of the gaming experience, has been somewhat left out of legal and regulatory commentary in general. So, Mac Síthigh’s article is in part a response against this trend.

The article starts by describing the current practices at the British Board of Film Classification (BBFC), the entity in charge of rating video games in the UK. While one could be forgiven for thinking that this section may not be of interest to international readers, it is actually a very enlightening discussion that is relevant elsewhere for comparative purposes and because of the BBFC’s unique structure and lack of transparency.

However, the article really shines when the author turns his eye to the discussion of video game scholarship itself when contrasted to legal writing on the subject. Here Mac Síthigh shows not only that he understands the wider discussions in game studies, but also tries to draw connecting lines between the interdisciplinary research into games, and the potential legal interest from this angle. Here the author points out that there is a marked lack of understanding of the nature of games in general that could be better informed from reading games scholarly output.

Finally, the most interesting contribution to the existing analysis is that so far legal writing on the subject has concentrated on what could be called hard-core gaming experience, namely virtual worlds, first person shooters, and role-playing games. However, the fastest growing games sector is the casual gaming market. Here, once again, the cluelessness of the regulatory sphere is shown, as the casual online games market is not regulated, and lacks any oversight or rating system. This seems like a huge regulatory black hole given the rise in popularity of games apps for mobile devices, such as the wildly successful Angry Birds, to the growing phenomenon of social gaming as exemplified by Facebook games like Zynga’s Farmville.

The article concludes that game regulation is made more difficult because of the very difficult nature of games. Whenever games do not fit the traditional narratives in the media, regulators seem to struggle considerably with regulating them..

As mentioned, this article is highly recommended for anyone involved in games regulation regardless of jurisdiction, and it may also be of interest to those whose focus is Internet regulation as a whole. For some time now, games regulation has been mirroring some of the early discussions in control in Cyberspace, and this article is no exception.

Making Sense

Apr 13, 2012 Herbert Burkert

We always look for writings that make sense–both by themselves, treating their subjects adequately, and by making sense to us as cyberlaw people. These writings help us to understand better the world around us; they also give us something that the knowledge of positive law and a vague understanding of technological change alone cannot give us. And so we become what Julie Cohen names so aptly “disciplinary magpies collecting alluring bits of this and that and cobbling them together.”

What is the recipe for sense-making? I see two universal elements: (i) The phenomena hitherto seen separately are being seen as connected in an exercise of reconfiguration, and (ii) a methodology is applied that gives us new insights into the forces that might be at work in these reconfigurations. There are two more for our special needs as law people: (iii) a normative stand, and (iv) pragmatic suggestions deriving from the new insights. The outcome is a sort of new magnifying glass that helps us to see new connections, to detect structures and processes at work, and to inspire speculation on new connections. Of course, we would not expect that the new world model would replace others as the sole explanation, we are content with having obtained yet another supplement. Cohen delivers: she connects, introduces methodology, takes a normative stand and makes suggestions, but her model is not one that would allow us to contentedly label yet another drawer and close it with satisfaction. Rather, she keeps us exposed to the unruliness of life and culture that the lawyer in us so abhors.

Cohen connects cherished, yet somewhat contradictory, cyberlaw views on copyright, on privacy, and on the design of network architecture and their access points. She exposes those contradictions as stemming from limitations of underlying ideologies, namely liberal political theory and our technology projections. She explores these assumptions in rich detail and in a well-structured rhythm using concepts drawn from cultural studies, science, technology, and society research. She uses concepts more generally from what has become known as postmodernist approaches (although she keeps some distance to such labeling), emphasizing the importance of culture as a living amalgam of ideological, political, economic and technological interplays in which we experience and practice our material lives as “situated” and “embodied” individuals and communities. While there seems to be a preferred immunizing tradition among legal scholars to remain somewhat coy about normative assumptions, Cohen is outspoken. She sees her method justified by joining those that seek to set the conditions for “the capabilities for human flourishing.” As operators to arrive at such conditions in the legal policies of copyright, privacy and networks, Cohen identifies “access to knowledge”, “operational transparency” and “semantic discontinuity.” Access to knowledge (which comprises access to networked information resources) has to be read broadly and in the tradition of social enabling rights. Operational transparency ranges from the transparency of the functioning of networks and devices, to the transparency of the performance that is expected from them by public as well as by private actors. The most interesting operator is “semantic discontinuity”, essentially meaning to go against the grain of seamless integration whether it is encountered in legal reasoning or in submission under authorizing regimes.

With these operators at play copyright reemerges as the enabler of “the play of everyday practice” including its play with transgressions, and as the grantor of cultural reproduction. Privacy evolves as management of boundaries to enable subjectivity and difference, and the control design of network architecture reappears as context conscious bi-directional permeability. Again, it has to be emphasized that Cohen sees these readings as an encouragement to weight shifting, but not as a total substitution of the currently prevailing understandings. This essentially nudging intention becomes more visible in the listings of suggested policy changes. Cohen argues — just quoting from some of the copyright related suggestions — for a recalibration of the restrictions on private use, including an interpretation of “private” that is more aware of cultural practices. Copyright law should “clearly reserve a broad range of remix privileges to users”. Extraordinary social benefits should be acknowledged; indirect liability strictly limited.

In spite of the nudging intention Cohen delivers her arguments with verve and does not suffer methodological foolishness kindly. Then again, such energy may be needed when, in a US context, you shout from a non-modernist ground up against law faculty walls of prevailing opinion. While it is true that many of us here in Europe have embraced, in  times of methodological drought, ways of thinking like law and economics as eagerly as Rolling Stones music (both arriving here from the US at approximately the same time), we feel we can deal with the challenges of Cohen’s semantic discontinuities in a slightly more serene manner.

Making sense? The way to make sense (in the Cohen way) — as I read the text — is not by mechanistic models, but by remaining eternal ethnographers exposed to the richness of cultures.  It is necessary to be always striving thus achieving at best — again as Cohen has put it — better stories and, as I would like to add by quoting from the German Ethnographer Michael Oppitz, by aiming at more “Genauigkeit“.¹ And as the indigenous architects of legal policies (as we all like to see ourselves), we can only hope — again with Cohen — to avoid the pitfalls of technological determinism by securing a multiplicity of pathways of technological advancement guided by the welfare of the people.

Each review has its situated and embodied reviewer who cannot help but looking forward to moments when he finds what he has not been looking for, the small big insight that sets the mind traveling. I had referred to such “fruits of reading” in a previous review.  And Cohen has not failed me either. Two of the many fruits I encountered I would like to share: The thought experiment to think of the library as the cultural default and the bookstore as the exception in Cohen’s pragmatics-oriented chapter nine: This experiment can also be read — and simultaneously so — as a pointer to the importance of default rules in social discourse as grantors of unquestioned stability as well as indicators for where to apply the levers of change. Very much towards the end, Cohen talks about the limitations of risk management by legal policies and the assumption that imperfect policies may serve as risk enhancers. Against the symphonic sound of her whole text the term “risk management” takes on a whole new meaning for me: Don’t we need an understanding of risk management that literally manages risks as a cultural resource and a challenge for creativity?

Maybe I have been carried away, maybe I am only revealing my self-imposed limited access to knowledge, but isn’t it for such moments that we read books — beyond trying to make sense?