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This seems to me both responsive to the points I raised last time, and much stronger for the responses. I agree with you that your thinking here has evolved, to your advantage in all your further thinking.

On your concluding point about lawyers' specialization, I would add a couple of notes. In the first place, you might want to consider the ways in which the collaboration of lawyers and technical experts that seems unusual to you in connection with the free software movement is actually the norm in a variety of settings, from environmental law organizations like the Environmental Defense Fund to, say, IBM or Qualcomm. More important even than such collaboration is the personal development of multiple professional expertises: lawyers who are also technical experts. In societies where law is an undergraduate study, lawyers rarely have fully-developed scientific or technical expertise. But in the US—where law is a graduate study so that everyone has a prior tertiary education, and where personal self-reinvention is a cultural given, so that highly intelligent people may have several sequential or simultaneous careers in utterly different fields—it is possible for lawyers to combine other forms of expert domain knowledge with the actual specialization of lawyers, which is not law but lawyering, the discipline of making things happen in society using words.

The fullness of perspective is the background of strategic as opposed to tactical thinking. The tactician's power is focus: creative determination to achieve the designated objective with the assigned resources, come what may. Focus is a weakness in the strategist, whose concern it is to allocate resources among objectives, and who must have the entire battlefield in view. You might want to ask of your argument concerning specialization whether it doesn't make the lawyer a tactician, working for a strategist who is possessed of another range of available cognitive approaches. If that's right, some other interesting thoughtways would open.

An internet society: what kind do we have and what can we do to change it?

This rewrite seems to me a retreat, rather than progress. You offer repeated assurances that you agree with me, but no actual substantive new ideas seem to have resulted from the agreement. Given that what I want is to interact with your ideas, not my own, this draft rather fails the only reader in the world it could possibly be taken to flatter.

That the Net isn't merely the market, which is now the primary substantive idea presented by the essay, was previously established by your "Great Transformation" argument. As I noted last time, this way of establishing the proposition paid too much to buy too little; your solution here is to mumble "Marx" without actually doing more, as though the work I was doing for you was name-dropping, rather than analysis.

The new element here was supposed to be an enlarged understanding what lawyers could do about the problem you haven't defined. The answer, we now learn, is "advocating for laws that promote freedom." This is not, of course, a very specific or useful direction.

The problem, as I noted last time, is that you don't come to grips with the politics at all. It's fine to say that the Net is pervasively misrepresented as "the digital economy" or "the information superhighway," leading to public policy outcomes that would be completely different if we called it instead "The Universal Education System." So fine, in fact, that I said it in 1997 in a piece I asked you to read back in September. The result of that none-too-new insight is a power distribution, in which the few acquire new forms of control over the many. Your mission, which you do not seem to be choosing to accept, is to analyze the power distribution that results, and to decide—as lawyers can who will—how you intend either to further or to disrupt it. None of those questions, which I tried to help frame in my comments last time, have been addressed, let alone answered even partially, in this draft.

Version Two: My frame of reference: an internet society

I started version one of this post by expressing ‘my confusion’ about working out what an internet society means to me. In the iterative process of writing and learning through class discussions, I am no longer as confused and my thinking has evolved.

I agree with Professor Moglen that the advent of the internet society furnishes an opportunity for monumental societal change: it creates the conditions for information to be free, and to be shared with people in all countries, of all levels of income and education. I am possibly less confident than Professor Moglen that this opportunity can be translated into ending ignorance across the globe, but I accept the premise and the call to action.

However, to reach this view on an internet society, I have had to develop my own way of thinking about these issues. I have needed to calibrate my own response to the question oft asked in class: what will it take to change your mind? I have also needed to think about what, as a lawyer, I can do in response to the call for action. In the rest of this revised post, I will articulate how I have further developed my thinking on what an internet society means. I then turn to the issue of what role I (and other lawyers) can play

The question and frame of reference

What will it take to change your mind? Professor Moglen has asked us this question in the context of our own unthinking behavior on the net (Gmail, smartphones in our pockets) and also to tap into the broader issue of whether we will take up the challenge of helping end ignorance throughout the world.

The questions that have been asked in class in response to this challenge, and those that I documented in my first post, reflect a series of careening thoughts. The questions reflect the range of technical, historical, normative and practical issues that arise when someone confronts you with a vision of the world that is genuinely different to what you generally get in law school, in most jobs and in the media.

However, I accept that you need to stop asking (stupid) questions once you know more. I know some more because of this course. I know more about what is technically possible to do through free software, encryption technology and the possibility of the Freedom Box. This means that I can now appreciate how privacy can be reclaimed. I also have come to a greater appreciation of how counter-productive intellectual property regimes are and how lawyers should welcome/assist their downfall.

Fundamentally, the course has reinforced for me that the internet needs to be conceived of as a society and not simply a market. I accept that this is self-evident if you have already concluded that the internet is society’s exo-skeletal nervous system. However, there are many people who don’t intuitively think this way; there are many who want to think about the internet as a giant market-place. For example, my own experience in Australia is that policy-makers and others have adopted the language (and the world view) that the internet is the ‘digital economy’. All policy discussions about the internet’s infrastructure, uses and online behavior are framed as e-commerce, rather than in broader innovation and freedom terms. Consequently, I believe that we often need to make the argument, and sometimes re-make the argument, that ‘the internet’ is an opportunity for a free society, not just a market. I think that historical thinkers like Karl Polanyi can help us with the starting point of this analysis: that society comes first, not the market.

But I agree that there are limitations to relying on previous theoretical analysis to articulate a vision of an internet society. The analogy of Polanyi’s vision of a ‘Great Transformation’ in history only goes so far, particularly as Polanyi’s example involved a transformation that fundamentally was not about the freedom of the masses. Once you have made the leap (or reminded yourself) that the internet is not just a market, then the dot.com manifesto and the work of others interested in internet freedom provide a positive articulation of a new vision. Central to this vision is the need to challenge existing power structures.

So what role for lawyers?

If we ‘change our mind’ about the internet society, Professor Moglen has asked us what we will do about it. The ‘baby steps’ that I outlined in version one were my first attempt at working out what role lawyers have in this world.

There are lawyers and technologists who can work on technical solutions to unfreedom. However, not everyone is capable of doing this; neither is everyone motivated to do it. There are also lawyers who will represent clients who are seeking to further freedom through new innovations and disseminating information.

I also believe that lawyers have a role in working out when there is a need for a new or different law, and when this part of the ‘tool-box’ is not going to be useful. In this context, I think that regulation is not always a ‘cop-out’. It can be one of the tools for militating against unfreedom and can be a means of challenging power structures.

By way of example, although the advent of a Freedom Box will allow more individuals to control their privacy, I still believe that lawyers should advocate for greater controls on the amount of information that governments and private actors can collect from their citizens, or other nations’ citizens. I want there to be laws that people can seek to rely on if they aren’t protecting themselves online as well as they could, or when governments and private entities seek to limit the ways you can operate as a free agent online.

I believe advocating for laws that promote freedom a way that lawyers can take up the call to action of an internet society. One that I—and many of my colleagues—should take.

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Version One: My frame of reference: an internet society

My confusion

Neither the split infinitive nor the imprecise use of "psychoanalyze" seems to be a good reason for the sentence. Why you should begin by expressing confusion, rather than the idea that thinking has brought you out of the confusion, I'm not sure. It doesn't help to give your reader a reason to keep reading. But if you do need to begin by expressing the confusion, why not put it briefly and then move directly to the announcement of the essay's real subject.

I think that the source of this unedifying emotion is that the course is making me feel even more confused about what—as a lawyer, a policy maker, a citizen—I should think about “the internet”.

Are you sure it's your brain that does all the thinking? Why does metonymizing the mind as the brain serve your purpose here? It feels to me, as a reader, like a distancing maneuver: this isn't my mind talking, it's just my brain.

Then you are hoping that coercive distribution, "you can't have this unless you pay," will continue to work in global society built on an infrastructure that makes sharing culture quick and frictionless. So you have three different forms of question to investigate: (1) factual and technical, (2) moral, (3) historical. As to (1), can sharing be prevented in the global net, or is coercive distribution no longer possible? As to (2), is it appropriate to sacrifice the interests of the billions of people who are too poor to learn and to benefit from culture, if it is coercively distributed to those who can pay, to the mechanics of your preferred mode for remunerating producers of knowledge and art? As to (3), were the forms of cultural production available before the brief period of coercive distribution post Edison inadequate? How many of the forms of art and knowledge production that are personally valuable to you achieved their maturity before the onset of the Edisonian technologies?

Those questions don't seem analytically well-formed. One says, hasn't the problem already become serious? The other asks, will people be willing to change their practices in order to avoid the destruction of their children's privacy? Assume the answer to the first question is positive. Why is the answer to the second question therefore negative? Or, if they are independent, what is the purpose of the first question? What sort of evidence would you need, and what sort of technology would you be evaluating—without yet prejudicing the question of the knowledge you would need in order to perform the evaluation—in order to answer it?

This appears to be a merely semantic inquiry about the meaning of "true revolution." If you know what you believe is and is not politically possible (for whatever class of reasons you call "normative" and pragmatic—are inquiries about what can happen normative?), why don't you explain? As someone who has been thinking about this for decades, and is trying to make things happen that will be good for the human race, I would be very much interested in knowing what can and what cannot be accomplished.

Breaking through the confusion

The use of "The Great Transformation" as the pivot here seems to me to raise more questions than it answers. What it answers, not very succinctly, is that the network is not just an institution of the market. This is an inexpensive conclusion dearly acquired. The endo-skeletal nervous system inside each human being is not just for buying and selling, anymore than it is just for playing baseball, cricket, or soccer, for dancing, lovemaking or painting. Why would anyone suppose that the rapidly-evolving exo-skeletal nervous system inside the human race is so differently confined?

On the other hand, Polanyi's particular version of human history comes with significant additional baggage, for which in this context allowance cannot be simply made. Polanyi offers a theory of historical uniqueness: he explains, if his explanation is accepted, why something happens once, and exactly once, in the development of human societies. Perhaps what is happening now can only happen once, but if so, it is not his Great Transformation, but a different one, which—precisely in proportion to the extent we think him right—will require an explanation different from his own.

Next (baby) steps

Must or must not are indeed normative statements. But would it not be desirable to understand what can and what cannot happen before reaching "conclusions" about whether the impossible is good?

This is a generic statement of technocratic dogma. Standing by itself it doesn't mean anything. Who is or is not supposed to regulate? What are they regulating? Are we supposed to think of telecommunications regulation in one country? The nature, vel non, of free speech protections and their limitations in every country? Of copyright enforcement? Of patent prosecution? Of secret police actions to prevent secrecy and anonymity somewhere? What model of the "preferable" is being implicitly referenced? How is it arrived at and by whom? Of whom are your conclusions mindful? Are the slum-dweller in Kolkata or Nairobi who wants to learn but cannot afford books, the censorship bureaucracy of the Chinese Communist Party, movie executives in Los Angeles with a fetish for young flesh and Mercedes convertibles, and the counterterrorism architects of the United States Government supposed to be capable of consensus? If not, do you not agree that force, evident or covert, is actually the arbiter of events?

If this is the predicate analysis, we're not quite ready. Let's try to improve this a little before moving on. If Polanyi was helpful, despite his limitations, why not appeal from the monkey to the organ-grinder? The dotCommunist Manifesto was my effort to undertake that project for you; wherever you wind up, it seems likely that you benefit from taking advantage of others' labor.

The center of the problem, it seems to me, is that there's no vision of the personal or of the political here, only of the bullshit regulatory "middle ground" beloved of bureaucrats and professors without imagination. Having observed that the net is not a market, you don't evolve a "framework" for stating what else it is to people. You do not give acknowledgment, let alone theoretical significance, to the previous permanence and current preventability of ignorance. You do not speak of, let alone explain, why people in India who cannot afford three meals a day or the purchase of clean drinking water pay for and cherish their mobile phones. You don't therefore compose the two, and explain that the most significant force holding such a person in ignorance, and therefore in poverty, regardless of her intelligence and determination, is the rules against sharing.

From here, you would be compelled to face issues that are political, about the distribution of power, not bureaucratic, about its administration after its appropriation and before its protection against challenge. Whether normative (Can you present a convincing ethical case for imposing ignorance on the poor? If not, is this a rhetorical exercise, an audition for work as an apologist for injustice?) or practical (How will societies resist the agitation of billions of brains that want to learn? Why would billions of people accept the rule of the few if it implied the deliberate starvation of their brains?) those issues are the ones absent from the preparations you've made so far.

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My frame of reference: an internet society

-- By GillianWhite - 15 Oct 2012

My confusion

Writing this post—at least version one—has proven to be more difficult than my other assignments.

I have been feeling rather stupid. To briefly psychoanalyze, I think that the source of this unedifying emotion is that the course is making me feel even more confused about what—as a lawyer, a policy maker, a citizen—I should think about “the internet”.

My confused, but interested, brain has thought the following over the past few weeks.

What if I support much of what Professor Moglen says about the downfall (and corruption) of intellectual property law, but also believe that actual writers and artists of our time should have an independent source of revenue that isn’t tied to the vagaries of philanthropy or being enough of a marketer that you can find some other non-copyright-derived-way for people to pay for your work directly?

What if I’m worried about the collection and dissemination of private information by Google, Facebook and the others, but feel that a large number of increasingly cynical consumers have already made the ‘trade-off’ between privacy and these products’ utility? Won’t these consumers continue to find free software and encrypted email something that will never be packaged in a way that changes their minds about the trade-off?

And, the core of it, what if I can’t (for normative and/or pragmatic) reasons believe that a revolution towards true internet freedom is likely to occur? Yet, at the same time, support much of the underlying call of that movement: that the internet should not be used as a tool of repression by government or corporate interests; indeed it should be a source and inspirer of freedom. Besides confusion, these questions are making me very glad to be thinking! I suspect that I am not alone in feeling that without technical expertise or freedom ‘politics’ in my blood, these thoughts are genuinely hard work.

Breaking through the confusion

To break through this confusion, I decided that I needed to clarify my own framework for analysis: what does the internet society mean to me?

For me, it doesn’t really matter whether you conceive of the internet as a microcosm of society, or society itself. It is, however, very important that it is conceived of as a society and not simply a market. As Karl Polanyi wrote in ‘The Great Transformation’, it is a fallacy of many economists that society is or should be run as an ‘adjunct to the market’. This is not say that the market economy should not operate within a society; but I think that it should be seen as one form of interaction within a much broader phenomenon. Just like I don’t believe that the market was the means or end in 19th or 20th century life, so too I think it is incorrect to conceive of the internet society with this narrow paradigm of purpose and effect.

As a matter of description we know that the internet society is not simply a market because of history and practice. We have already learnt in this course that the birth of this microcosm was the birth of a collaborative, communitarian effort to share information and knowledge. I also know from my own experiences that there are many ways that we interact online which are not about the profit motive and are versions of social and socializing behaviors that we exhibit in other aspects of our lives.

Normatively, I believe that the strength and possibility of the internet society is when it is conceived as a global commons where ideas, information and goods are exchanged in a variety of non-market and market ways. In other words, the internet should not be defined ‘for the convenience of [anyone’s] business model’ (Metro-Goldwyn-Mayer Studios v Grokster, amicus brief, Eben Moglen), but instead with much broader objectives in mind.

I am also influenced by another of Polanyi’s ideas about the evolution of 19th century market society. That is, that the history of the market economy is a history of society protecting itself against the perils of an unregulated market.

Next (baby) steps

With this framework as my starting point, I feel a bit closer to a way of thinking about questions that I raised above. It leads me to two broad propositions which I want to use to guide my thinking in the rest of the course.

First, that the internet should not be one gigantic business model in action. Like any commons, there can be markets and trade within the society; but there should also be room and encouragement for myriad human interactions that are not simply code for advertising revenue.

Secondly, I don’t believe that the market aspect of this society can always be left to regulate itself. This market has an invidious way of swamping other interactions. The challenge is that many purveyors seek to use regulation as a tool to protect their existing markets. It is always easier to identify the problems with a suggested solution than to construct a solution. But the existence of problems with a suggested solution does not entail that the opposite of that solution is preferable. When both non-regulation and regulation are problematic, it’s easy for supporters of one just to point to the flaws in the other. The best answer is likely to be more nuanced.

This second proposition—that regulation is needed—is why I say I am only a bit closer to a way of thinking about the internet society. I need to keep learning and thinking about what I actually mean when I say we need regulation. The dangers of unintended consequences and of undermining the freedom and diversity that is the essence of the society, require pause for thought. To give myself some credit, however, perhaps this is always going to be a complex discussion. When and what regulation may be needed may always need messy, case-by-case solutions. I will try to tackle one of these messy issues in my next post.