A new paper called “Do Androids Dream of Electric Free Speech?” argues that legal scholars could benefit from looking more to science fiction works when writing about concepts like copyright, censorship, and privacy. It’s an interesting paper, and spends time going into some theories of why sci-fi is relevant as well as examining the issues that the genre explores. From the article:
That said, all legal scholarship does not need to uniform, and taking some risks by creating plausible (even if not probable) hypothetical examples based on the visions of science fiction authors offers the opportunity to enhance the value of legal scholarship to the field of media and communications law. We researchers are in a position to answer questions that may not be as practical or necessary for judges and legislators today, but may very well be considered by them in the future if and when some of the projections become reality.
I had a chance to speak with the author, Daxton “Chip” Stewart, after writing about my blog post on the lack of copyright maximalist dystopian sci-fi on Twitter. I was surprised and happy to see that he ended up citing that blog post and some of the works discussed in it, as well as a post I wrote about Cory Doctorow’s Pirate Cinema. But I’d have enjoyed the paper even without the citations!
But in a series of cases yesterday about law enforcement searches of cell phones, we caught a glimpse of the Supreme Court’s real technology problem. Here’s what it comes down to: it’s not essential that the Court knows specifics about how technology itself works—and as Timothy Lee argues, that might even tempt them to make technology-based decisions that don’t generalize well. However, it is essential that the Court understands how people use technology, especially in areas where they’re trying to elaborate a standard of what expectations are “reasonable.”
So when Chief Justice Roberts suggests that a person carrying two cell phones might reasonably be suspected of dealing drugs, that raises major red flags. Not because of any special facts about how cell phones work, but because (for example) at least half of the lawyers in the Supreme Court Bar brought two cell phones with them to the courthouse that day. Should those attorneys (along with the many, many other people who carry multiple devices) reasonably expect less privacy because the Chief Justice is out of touch with that fact?
Contrast that with Justice Kagan’s point about storage location in the same argument. Justice Kagan suggested, correctly, that people don’t always know what is stored on their device and what is stored “in the cloud.” The actual answer to that question should be immaterial; the point is that it’s absurd for a person’s privacy interest to hinge on which hard drive private data is stored on.1 Instead, the important fact here, which Justice Kagan recognizes, is that the distinction between local and cloud storage just doesn’t matter to many people, and so it can’t be the basis of a reasonable-expectation-of-privacy test.
If you’re feeling less generous, you might take Justice Kagan’s point as evidence that she herself doesn’t know where her files are stored. And in fact, that’s probably true—but it’s not important. You don’t actually need to know much about filesystems and remote storage to know that it’s a bad idea for the law to treat it differently.
That’s not to say that technical implementation details are never relevant. Relevant details, though, should (and almost always do) get addressed in the briefs, long before the oral argument takes place. They don’t usually read like software manuals, either: they’re often rich with analogies to help explain not just how the tech works, but what body of law should apply.
What can’t really be explained in a brief, though, is a community’s relationship with a technology. You can get at parts of it, citing authorities like surveys and expert witnesses, but a real feeling for what people expect from their software and devices is something that has to be observed. If the nine justices on the Supreme Court can’t bring that knowledge to the arguments, the public suffers greatly. Again, Justice Kagan seems to recognize this fact when she says of cell phones:
They’re computers. They have as much computing capacity as as laptops did five years ago. And and everybody under a certain age, let’s say under 40, has everything on them.
Justice Kagan is not under 40, and might not have everything stored on a phone (or on an online service accessible through her phone). But that quote shows me that she at least knows where other people’s expectations are different. Chief Justice Roberts’s questions show me exactly the opposite.
The justices live an unusual and sheltered life: they have no concerns about job security, and spend much of their time grappling with abstract questions that have profound effects on this country’s law. But if they fail to recognize where their assumptions about society and technology break from the norm—or indeed, where they are making assumptions in the first place—we’re all in trouble.
I’ve been playing a lot of Mini Metro, a (still alpha) transit-planning puzzle game. It’s been recommended to me a dozen times by people who know how I feel about transit maps, and that element of the game is really great, but it’s also just a lot of fun to play.
In any case, it’s got a very distinctive style, and I wanted to see more maps with that look. So I made a version of the San Francisco BART map in that look.
Have copyright maximalists ever written dystopian science-fiction about a future where free culture wins?
After all, there’s plenty of science-fiction in the copyfight. Whole subgenres of utopian stories assume a post-scarcity world facilitated by tech like super-advanced 3D printing and unhindered by law. Similarly, there are plenty of stories that describe a dystopian future where information is locked down by ever more oppressive “intellectual property” laws.
But where’s the dystopian future imagined by the other side? Of course, I’m inclined to believe that it doesn’t exist because, despite all the doom and gloom pitched by the legacy content industries, people realize that copyright (et al.) are not playing that important a role holding society together. I think that’s supported by the few efforts that have been made.
Is that it? Is the reason we don’t have dystopian sci-fi about free culture winning is because it would have to acknowledge that you can get Shakespeare and Bach and Mozart and Michelangelo, but nothing really good?
One example I found that nearly fit the bill is a robot-themed series of ads placed by the Music Defense League, a subset of the American Federation of Musicians, attacking the use of recorded music in movie theaters. It’s not strictly about copyright, but it imagined a death of human creativity and virtuosity at the hands of recording and performance technology, which is maybe close enough. The one at the top is my favorite in the series, but all the ones picked out by Smithsonian Magazine are remarkable.
In front of every house in the summer evenings you would find young people together singing the songs of the day or the old songs. Today you hear these infernal machines going night and day. We will not have a vocal chord left. The vocal chords will be eliminated by a process of evolution as was the tail of man when he came from the ape The vocal chords will go because no one will have a chance to sing, the phonograph supplying a mechanical imitation of the voice, accompaniment, and effort.
But again, this is not really a copyright argument at all, just one generally against technology.
Does anything more recent and on point exist? If so, I’d be interested to read it. If it doesn’t, I hope somebody some day fills the niche. As much as it’d break my heart, Ursula K. LeGuin—who has expressed strong feelingsabout copyright—could probably do a bang-up job of it. It’s hard to imagine I’d find the arguments in it very compelling, but I’d love to give it a shot.
