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?
- Oppitz & Alasti, Kunst der Genauigkeit: Wort und Bild in der Ethnographie (München: Trickster, 1989).