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JakeWangPaper1 5 - 27 Jan 2010 - Main.EbenMoglen
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META TOPICPARENT | name="FirstPaper" |
Ready for review, comments, etc. | | -- JakeWang - 30 Nov 2009 | |
> > | This is a really interesting attempt to make headway
on these issues using pure conceptual formalism. There are a number
of objections that could be made to your definitions, but they don't
really matter, because those are your definitions, and in a
formalism of this kind the definitions are taken as given. And as
long as you remain in the realm of pure conceptions, without
considering facts of any kind, we won't notice the flaw in your
argument: Contract is said to provide the option of performance or
breach with compensatory damages, and this reversability is central
to the distinction you want to draw. But no one knows how to reverse
the release of information, so that there is no practical
reversability for contractual transactions in personal information.
Because one can never put the toothpaste back in the tube, as it
were, there is actually something close to a property transfer
occurring, which puts the whole conceptual argument out.
The traditional solution in such situations lies in
equitable instruments, like the constructive trust imposed on the
possessor after breach, or some equivalent method for imposing a
fiduciary responsibility. But in the real world of transactions in
personality, there's no way back: this is also what makes identity
theft such a serious problem, and why biometric identification
mechanisms are such a terrible idea.
So, as is generally the case for a realist like me,
the major benefit of conceptualist experiments like this is that they
show why conceptualism never works. Which isn't to say that you
can't rescue this argument, at least partially. I think to do so
you'd have to be willing to deal with facts a little more, which will
reduce the conceptualist purity of the essay, but that may be worth
it to you to explain why we should be allowed to transact over
personal information. For me, this isn't a game worth winning,
because that proposition is so evidently true that I can't understand
anyone's denying it. I'm not sure who's supposed to be on the other
side of your argument, which is one of the other problems
conceptualism often has: it gives itself medals for proving the
uncontested. | |
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