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.

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.

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.

Leaving Facebook: You Can Run, But You Can’t Hide

I first quit Facebook in 2010, in response to a talk Eben Moglen gave at NYU about Facebook’s privacy-destroying ways; one of his most memorable lines was:

The East German Stasi used to have to deploy a fleet of undercover agents and wiretaps to find out what people did, who they met, what they ate, which books they read; now we just have a bunch of Like buttons and people tell a data monetizing corporation the same information for free.

That talk–in which Moglen referred to Mark Zuckerberg as a ‘thug’–also inspired a couple of young folk, then in attendance, to start Diaspora, an alternative social network in which users would own their data. I signed up for Diaspora soon after kicked off; I also signed up for Google+. I returned to Facebook in 2012, a few months after starting my blog, because it was the only way I could see to distribute my posts. Diaspora and Google+ never ‘took off’; a certain kind of ‘first-mover status, and its associated network effects had made sure there was little social networking on those alternative platforms.

Since then, I’ve stayed on Facebook, sharing photos, bragging about my daughter and my various published writings, and so on. I use the word ‘bragging’ advisedly; no matter how much you dress it up, that’s what I’ve been doing. But it has been a horrible experience in many ways: distraction, lowered self-esteem, envy, have been but its most prominent residues. Moreover, to have substantive discussions  on Facebook, you must write. A lot. I’d rather write somewhere else, like here, or work on my books and essays. So, I desperately want to leave, to work on my writing. But, ironically, as a writer, I feel I have to stay on. Folks who have already accomplished a great deal offline, can afford to stay off; those of us struggling to make a mark, to be noticed, have to stay here. (Consider that literary agents now want non-fiction writers to demonstrate that they have a ‘social media presence’; that they have a flourishing Facebook and Twitter presence, which will make the marketing of their writings easier.) I know, I know; as a writer, I should work on my craft, produce my work, and not worry about anything else. I know the wisdom of that claim and reconciling it to the practical demands of this life is an ongoing challenge.

So, let’s say, ‘we,’ the user ‘community’ on Facebook decide to leave; and we find an alternative social network platform. I’m afraid little will have changed unless the rest of the world also changes; the one in which data is monetized for profit, coupled with a social and moral and economic principle that places all values subservient to the making of profit. The problem isn’t Facebook. We could migrate to another platform; sure. They need to survive in this world, the one run by capital and cash; right. So they need to monetize data; ours. They will. Money has commodified all relationships; including the ones with social network platforms. So long as data is monetizable, we will face the ‘Facebook problem.’

Studying Ancient Law In Philosophy Of Law

This semester in my philosophy of law class, I’ve begun the semester with a pair of class sessions devoted to ancient law: Mesopotamian, Biblical, and Roman. (My class is reading excerpts from a standard law school textbook: Jurisprudence Cases and Materials: An Introduction to the Philosophy of Law and Its Applications by Stephen E. Gottlieb,  Brian H. Bix, Timothy D. Lytton, & Robin L. West.) I chose these sections for class reading and discussion because as the authors put it, “First, it is useful to know about the origins of law….Second, the legal documents from the Ancient Near East offer you a comparative perspective…you will find illuminating points of similarity and difference with our own system of laws, and that will help you to identify seemingly universal features of law and to spot particular characteristics that distinguish our own legal system, characteristics that you may have assumed were universal. Third…studying the earliest attempts to impose law gives us an opportunity to examine the reasons for using law as a means of governing….we will find…hints about the original reasons for choosing law, as opposed to other methods of ruling.” Moreover, these excerpts offer us some of the “earliest attempts to reflect on the rule of law…[they] pose a set of questions that have defined the field of jurisprudence ever since….In contrast to contemporary jurisprudence these ancient writings offer clear distinctions between the different approaches: they present arguments about positivism and natural law in purer form.”

These considerations offer a series of compelling arguments for why the study of ancient law should be included in a philosophy of law course; the description of law as a historically evolving and contingent technology of governance is one that every student of law–philosophical or otherwise–should be familiar with. (I regret never having including these sorts of materials in my previous iterations of this class; philosophy of law anthologies for their part, do not include material on ancient law.) If today’s vigorous class discussion–on a preliminary reading of the laws of Ur-Namma, Lipit-Ishtar, Hammurabi, and Yahdun-Lim was any indication, this syllabus selection has been a hit with my students as well. My students were particularly enthused by an introductory exercise that asked them to write a prologue, a few laws, and a conclusion in the style of these legislators; we then discussed why they picked the prologue and the laws that they did; this discussion allowed me to introduce the concept of the ‘expressive impact of law’ and also the so-called four-fold model of behavioral modification, which shows that law is but one modality by which behavior can be modified (the others are social norms, market pressures, and architectural constraints.) Moreover, these legislative excerpts are written in a very distinctive style, which permitted a preliminary discussion of legal rhetoric as well.

I often get syllabi wrong; and much remains to be done in this semester, but for the time being I’m reasonably pleased that this class–which sputtered so spectacularly last year–is off to a bright start in this new year. Hope springs eternal.

Thinking Of Autonomous Weapons In ‘Systems’ Terms

A persistent confusion in thinking about weapons and their regulation is to insist on viewing weapons in isolation, and not as part of larger, socio-political-economic-legal-ethical systems. This confusion in the domain of gun control for instance, inspires the counter-slogan ‘guns don’t kill people; people kill people.’ Despite its glibness–and its misuse by the NRA–the slogan encapsulates a vital truth: it is singularly unilluminating to consider a weapon in isolation. Indeed, the object we term a weapon is only within the context a large system that makes it one. A piece of metal is a knife because it is used as one, pressed into service as one by a decision-making agent of some kind, to cut objects, vegetable or animal.

Which brings us to autonomous weapons, a domain where the ethical and regulatory debate is quite clearly demarcated. The case for autonomous weapons is exceedingly familiar: they are more humane because of their greater precision; they can be used to reduce the ‘cost’ of war, both human and material; no more carpet-bombing, just precision strikes, delivered by autonomous weapons–which moreover, reduce the strain of killing on humans. (That is, these weapons are kinder to those who kill and those who are killed.) The case against them is similarly familiar: the delegation of lethal decision making to a machine incapable of fine-grained ethical deliberation is an invitation to moral atrocity, to a situation in which lurking catastrophes are triggered by a moral calculus that makes decisions which are only superficially technically correct. The immaturity of such systems and the algorithms they instantiate makes them especially risky to deploy and use.

Autonomous weapons do not exist in isolation, of course; they are more correctly considered autonomous weapons systems–as one part of an economic, military, legal, political, and moral calculus; their use as weapons is not merely function of their machinic code; it is a function, rather, of a much more complex ‘code’ made up of bits of legal regulations, political imperatives, and physical and economic constraints. It is these that act together, in concert, or in opposition, to ‘fire’ the weapon in question. As such, some of the ‘ethical’ arguments in favor of autonomous weapoons systems look a little trite: yes, autonomous weapons system carry the potential to enable more targeted and precise killing, but the imperatives to do so still need to be human directed; their force is channeled and directed and perhaps weakened or strengthened–by all sorts of system level and corporate constraints like political ones. The questions such systems prompt are, as they should be, quite different from those that might be directed at an ‘isolated weapon’: Who owns them? Who ‘controls’ them? What are safeguards on their inappropriate use? Which system’s political and economic and moral imperatives are written into its operational procedures? The world’s deadliest bomber can be grounded by a political command, its engines left idling by politics; it can also be sent half-way around the world by a similar directive.

An illustrative example may be found in the history of computing itself: the wide-scale deployment of personal computing devices in office settings, their integration into larger ‘enterprise’ systems, was a long and drawn out process, one suffering many birthing pains. This was because the computers that were placed in offices, were not, despite appearances, isolated computing devices; they were part of computing systems. They were owned by the employer, not the employee, so they were not really ‘personal’; their usage–hours, security access etc–was regulated by company rules; the data on their drives belonged to the employer. (For instance, to print a document, you accessed a networked printer administered by an Information Systems Group; or, the computers are not accessible on weekends or after hours.) Under these circumstances, it was a category mistake to regard these machines as isolated personal computing devices; rather, they were part of a much larger commercial system; their human users were one component of it. Claims about their capacities, their desirability, their efficiencies were only coherently made within the framework of this system.

Similar considerations apply to autonomous weapons; talk of their roles in warfare, their abilities, and the like, are only meaningfully expressed within a discursive framework that references the architecture of the system the weapon in question functions as a part of.