Talking About ‘Intellectual Property’ On ‘Counterpoint with Amanda Vanstone’

A week or so ago, I recorded an interview with the Australian Broadcasting Corporation‘s Amanda Vanstone for her program Counterpoint (on the ABC’s Radio National.) Amanda and I discussed my recent essay in Aeon Magazine on why the general term ‘intellectual property’ should be discarded, and the why the very notion of ‘intellectual property’ being any kind of property is a problematic one. The interview is now online; do give it a listen if you are so inclined.

The Shames Of Anger

I’ve written before, here on this blog, about the pleasures of anger, of holding on to grudges–the two are, of course, inter-related, for very often it is the pleasure of experiencing anger that allows us to retain a long-held grudge. These ‘pleasures,’ such as they are, have a role to play in the economy of our lives, it is why we experience them as such–they ‘work for us’ somehow or the other, which is why we seek them out and retain them. But they do not come for free, not without their own incurred costs, ones we are willing to pay; the devastating and melancholic shames associated with the expression of anger and the retention of grudges. The shame of anger is experienced most directly when the effects of our anger are visible: the hurt of a partner or friend we have tongue-lashed or driven out of our lives, the fear and sadness and confusion of a child who has encountered our furious loss of self-control, the sometimes irrevocable damage done to relationships, romantic or familial.

These are powerful reminders of our lack of virtue; haunting indicators of how far we need to go in asserting mastery over ourselves. We are reminded violence comes in many forms, and is expressed and experienced in a rich and uncomfortable diversity; we are reminded too, by way of introspective contact with our own hurts and unresolved resentments that the injuries we bear and nurse are not always visible; the effects of the ‘blows’ we have landed through our anger are only partially visible to us–there is more to this landscape of fear and hurt than we can ever possibly know; much of it remains unaccounted for. We are reminded of the humanity and vulnerability of others when we remember and relive the effects of others’ anger being visited on us. That fear, that panic, that urge to flee– we induce those feelings in others through our thoughts and deeds; they experience the same painful affects we do. (Allied with the shame engendered by such thoughts is yet another variant: we might seek forgiveness for our anger, beg to be forgiven, and yet we do not move forward, unwilling to descend from our perches–for we are reluctant to admit guilt, to encounter another shame that our selves might send our way, that of having ‘backed down.’ In this kind of situation at least, masculinity has a great deal to answer for.)

The shames of anger remind us of why anger is considered corrosive–these signposts in our minds that we are not ‘quite together,’ that we are disordered, are powerful covert agents, inhibiting us, consuming our psychic energies in consoling ourselves, in providing ourselves palliative diversions and distractions. It becomes yet another component of our ongoing dissatisfaction with ourselves, yet another reminder that for all the blame we may send the world’s way, we always find the finger pointing back at us.

On Seeking Deliverance By Special Investigation

The Republic turns its lonely eyes to its hero, Bob Mueller, again. Thanks to the latest developments in the Paul Manafort and Michael Cohen cases, a new rash of analytical thinkpieces is upon us, all informing us in breathless tones about how the Mueller investigation is now moving into high gear, of how much legal jeopardy Trump could be facing, of how ‘impeachment is again on the table if Trump issues pardons’ and so on.

Speculation is permissible when it comes to our national politics; indeed, with our dreaded ‘twenty-four hour news cycles’ and our always-on, always-working internet news sites, all dependent for advertising revenue driven by the proverbial ‘clicks’, such speculation is indispensable: how else can time-slots on news channels be occupied, how else can viewers be driven back, again and again, to check on ‘the latest developments on Trump’s legal troubles’?

Unfortunately, the real legal trouble at hand is for the republic. Its legal and political institutions do not work. It has handed over control of its politics to a Federal prosecutor’s investigation, trusting him to set things right; it is afflicted by historical amnesia, for it seems not to remember that the law in this nation has never adequately curtailed the powers of the rich and powerful and famous, that its most heavy-handed dispensations are reserved for the relatively powerless. The president can issue pardons for all and any federal crimes, and his track record thus far–Joe Arpaio, Dinesh D’Souza–suggests he will do it again and again to save those who might be tempted to rat out on him. And again. For who can stop him? Not the threat of impeachment, for that will be stalled by his mates in the Senate. Not any legal threat to the power of the President and the Executive Branch by subpoena or actual indictment; we can be sure that if that constitutional question ends up in the Supreme Court, we will return with a 5-4 verdict handed down by a handpicked bench. When the smoke clears, we will find the Trump family standing, protected by the legal advice tendered to the Executive Branch by the Office of Legal Counsel, by a phalanx of expensive lawyers. You might hold out the fond hope that Mueller will drive the Trump businesses bankrupt, that he will temper the carpetbagging tendencies of the Trump offspring; but again, here the history of actual persecution of corporate offenders should calm us down all over again.

The lesson here, as it has been for a while, is to step back from the notion of the law and the legal system doing the business of politics. Trump will not be defeated by the rule of law; neither will the real culprits in all of this, the Republican Party. They will only be beaten by a coherent political platform, delivered clearly, loudly, and repeatedly to the folks that really matter: the electorate. The rest of this ludicrous sideshow is an employment scheme for overpaid lawyers and legal commentators.

Climbing And The Persistent, If Irrational, Fear Of Falling

A curious experience in roped climbing (whether on auto-belay, top-roped climbing, or following a leader on a multi-pitch route) is the presence of instinctive fears that should have no rational basis for persistence. Like the fear of falling, for instance.  There you are, tied in with your faithful figure-eight knot into your climbing harness, which is snug around your waist, connected to your belayer who is clipped and locked into the belay loop. The knots are good, the gear works, your belayer has you; you cannot fall. And yet, as you step out to make a move that requires some balance, or that might not offer the best grip, you experience a sudden sickening sensation; you are afraid; you become aware of the number of feet you are off the ground; you feel your palms grow sweaty, your heart starts to beat a bit faster. You are in trouble.

You aren’t. But you feel it anyway. Old habits and instincts die hard. I’ve always been terrified by heights, by the sickening vertigo and nausea they induced in me. Overcoming that fear was one of the reasons for my taking up climbing a couple of years ago; I hoped that ‘controlled exposure’ to heights would help me become more familiar with these fears; I would never ‘master’ them but I could learn to work in their presence; perhaps working through some task or problem at hand even while I was afflicted by them. The good news is that these expectations have been borne out by my experiences. Very often, over the last couple of years, I have found myself in places (precarious belay ledges) and situations (negotiating narrow exposed traverses) that would previously have terrified me in incapacitating ways. But the fears are always there, anchored in instincts and reflexes that have hardened over the years.

And so, even when I’m indoors, inside a comfortable climbing gym, tied and clipped in, with nowhere to go in the case of a slip but slowly, smoothly down, riding a rope all the way, when my body senses, even if for only for a micro-instant, that slight absence of security or solidity that signals the earth opening up under my feet, I retreat (or rather, am forced back) to an older me. This particular instinctive reaction will, of course, become familiar in its own way; I will learn to anticipate it, welcome it, live with it. As I never fail to notice during my indoor climbing sessions, when I start climbing for the day, such reactions are at their most visceral, and are attenuated as I continue to climb. Some of the intensity of my instinctive responses then will be tempered, by greater experience; as my body learns that these falls do not end in anything more bothersome than some swinging through air, or a painful bump against an exposed hold (I’m not counting falls taken by lead climbers which can result in serious injuries.)

Of course, by the time I get to that stage, I will have discovered newer fears to work through. And hopefully, improved my climbing.

Copyright Reformers Do Not Advocate Plagiarism

If you are one of those folks who responds to any debate in the domain of copyright reform with one of the following responses (or some variant thereof), please cease and desist. You are revealing yourself to be a functional illiterate.

  1. Oh, so according to you, anyone should be able to take something written by an author and just rip it off, right? [I’m presuming ‘rip it off’ means ‘use without attribution.’]
  2. I should be able to take something you’ve written, change your name to mine and just sell it, right?

No. You may not. You would be a plagiarizer then. Folks advocating reforms of copyright laws–typically shorter copyright terms, more lenient understandings of the doctrine of ‘fair use‘ mainly–have never advocated plagiarism. They still don’t.

Copyright reformers do not advocate that copyright protections should not exist. They do argue, however, that these protections are sometimes extended to material that should not be copyrighted–for example the baseball statistics that are put into a particular format by an author should remain uncopyrighted while their new tabular format certainly should be; they also advocate that those terms of copyright should be limited–as originally envisaged in the US Constitution–so that the copyrighted material can serve as ‘raw material’ for other creators to build on, to modify. They also express concern that over-stringent application of copyright laws are sometimes problematic in the digital world in which we live today – one in which creative products can be more readily copied, modified, and distributed.

But they do not, ever, advocate that someone should be able to take someone else’s’ work and pass it off as their own.

This persistent misunderstanding of copyright reformers’ claims has two unsavory interpretations:

  1. Critics of copyright reformers are lazy and illiterate; they cannot read, and if they can, they cannot be bothered to read the actual claims made by copyright reformers.
  2. Critics of copyright reformers are intellectually dishonest, engaging in willful misreading in order to systematically misrepresent the reformers’ claims.

I pen this short screed today because this past Monday, my essay ‘End Intellectual Property,’ which argues that the term ‘intellectual property’ is a misleading piece of rhetorical excess and should be discarded in favor of the precise use of ‘copyrights’, ‘patents’ ‘trademarks’ and ‘trade secrets’ instead, appeared in Aeon Magazine, and almost immediately, many readers online made some version of the responses above. I’m left shaking my head. Especially as my essay included the following line:

And neither do copyright reformers argue that plagiarists be somehow rewarded; they do not advocate that anyone should be able to take a copyrighted work, put their name on it, and sell it.

‘Nuff said.

P.S: There are several other persistent misunderstandings–or willful misreadings– of copyright reformer’s claims making the rounds. As they have been for a while. Like vampires, they refuse to die. On those (‘so you think artists should not be paid for their work?’ and ‘how come your books are not made available for free?’), more anon.

Neal Katyal And George Conway’s Incomplete Legal Advice

In an Op-Ed for the New York Times, Neal Katyal, the “acting solicitor general under President Barack Obama and…a lawyer at Hogan Lovells,” and George Conway III, “a litigator at Wachtell, Lipton, Rosen & Katz,” argue that Donald Trump’s appointment of Matthew Whitaker as the the Acting Attorney General is unconstitutional. Roughly, according to the Appointments Clause of the US Constitution, Article II, Section 2, Clause 2, “principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.” Whitaker is a principal officer, and he has not been confirmed by the Senate.  So, “Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States…is unconstitutional. It’s illegal.”

(Katyal and Conway buttress this argument by invoking the words of Justice Clarence Thomas, who argued last year that the appointment of the general counsel of the National Labor Relations Board without Senate confirmation, which was ruled invalid on statutory grounds, was unconstitutional for precisely the same reason – it violated the Appointments Clause.)

Katyal and Conway sign off with a rhetorical flourish that should be familiar to anyone who has read claims alleging the unconstitutionality of a statute or executive action:

[T]he Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”

We must heed those words today.

Stirring words. Exemplary legal analysis. Alas, something is missing. How can we “heed those words”? What legal redress do American citizens have? Can I call a police officer and ask him to arrest the President? Who will step forward to address this violation of the  law? Illegal acts have been committed; what can be done? Katyal and Conway do not bother to tell us. They tell us that something is is illegal and then they drop the mic.  Unconstitutionality Alleged! Boom!

What Katyal and Conway have failed to do is tell us who has standing to sue.  Standing is “the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case” or “the requirement that a person who brings a suit be a proper party to request adjudication of the particular issue involved.”

So, who, if anyone, has standing to sue in this case? I am not a lawyer or a legal expert. I do not know what the rules are for standing to sue alleging constitutional violations. Mea culpa – my civics lesson were clearly inadequate. It would be nice if a pair of expert lawyers, who enjoy access to one of the the nation’s most visible media platforms, would tell me.

This complaint is a more general one. In the years since Donald Trump has become president, a veritable blizzard of op-eds have descended upon us, alleging some kind of illegal behavior by the administration. (Most of these are admittedly allegations that some norms, rather than laws, have been violated.) In almost none of those is the reader informed of how the citizens of this nation can find legal remedies. An opportunity for a little civics lesson, a little legal education, is missed out in each case. And the impression that citizens have, that the laws of this nation simply do not check the actions of the powerful, is reinforced. From a political standpoint, polemics are of little use if they do not include some call to action: here is the legal violation, this is what must be done to redress it. Elementary rules of composition for political or legal writing, I think.

As things stand, Whittaker is Acting Attorney General. And for all we can tell, no one can do anything about it. If that is the case, it would be nice to know why.

Cussin’ In The Classroom

Of late, I’ve noticed that I have begun using more profanity in the classroom than I ever have previously in my teaching career. (Strictly speaking, I do not ‘use’ more profanity; I ‘mention’ it. That is, rather than using the word ‘fuck’ in a sentence like “This is a fucking crazy argument,” I mention it as in ‘Then someone might say, “Look, fuck it, I’m not going to obey the law.’ In the first case, I have used the word ‘fuck’ myself; in the second, I have quoted someone using it.) I do not exactly know why this is the case. For the first dozen or so years of my teaching career, I studiously eschewed mentioning profanity in the classroom; my style of teaching saw me stick pretty close to the assigned reading and the written notes I had prepared on it. Of late, my teaching has become more unstructured; I rely less on notes and more on the text (and on student responses to it); I consider most of the teaching in the classroom to happen when my students and I build on the textual material to explore applications of it in our daily lives. I supply more examples to my students now, and spend considerable time making them as elaborate as they need to be in order to illustrate the point I am trying to get across. I’m also more comfortable now in my skin as a teacher, more confident about the material I teach (even as many new existential doubts have also crept into my self-assessments of my intellectual and pedagogical worth.) These changes have, over a period of time, resulted in–when things are going well–a more informal classroom space.

This ‘loosening up’ has, I suspect, also loosened my tongue somewhat. I do not mind the tangents I go off on; I’m more inclined to be facetious in class, to invoke levity into its proceedings. Some of my students have told me that they quite enjoy my historical asides, the stories I tell to supply some historical context to a particular philosophical debate; this has encouraged me to be more discursive in my working through the material being discussed in a class. And so, I have found that often times, when constructing some imaginary conversation for an example, to illustrate some political or ethical issue, I will throw some profanity into the mix to make the reported conversation more dramatic, more realistic. I hope.

My students do not seem to mind; no one ever looks shocked. Most students occasionally snicker; there is a noticeable relaxation in the classroom atmosphere. (For some strange reason, this is also the case whenever the topic at hand invokes the legalization of marijuana for recreational purposes.) I suspect that to a certain extent, my language humanizes me for my students–for better or worse. I’m ‘distant’ from my students in many ways–this language brings me ‘closer’ to them, again, for better or worse. I do not think that I’m currying favor with my students by employing this language; it has come naturally to me as my classroom methods of interacting with students have changed. For what it is worth, I curse a lot in my conversations outside the classroom, so I’m slipping into a mode of discourse that comes naturally to me. About fucking time.