Julie Cohen – Configuring the Networked Self:CITP Lecture Series
Law, Code, and the Play of Everyday Practice
Date: Thursday, May 5, 2011
Time: 4:30 PM – 6:00 PM
Location: 101 Sherrerd Hall
Reception immediately following in 3rd floor atrium
For the most part, U.S. legal and policy scholarship about the networked information society shares a set of first-order commitments—to individual autonomy, to an abstract and disembodied vision of the self, and to the possibility of rational value-neutrality—that derive from the tradition of liberal political theory within which legal academics are primarily trained. Those commitments shape both the prevailing understanding of the legal subject and the preferred form of analysis by which a just and intellectual defensible system of information rights is to be derived. Over and over, a common pattern emerges: Legal scholarship posits simplistic models of individual behavior derived from the first-order liberal commitments and then evaluates emerging legal and technical regimes that govern information flow according to the models. This approach has not served either theory or policy well. The models of individual behavior upon which it relies are too narrow both descriptively and normatively to yield useful insights into the relationships between copyright, creativity and culture; between surveillance, privacy, and subjectivity, and between network architecture and social ordering. Moving beyond the bounds of liberal political theory is essential to understanding the cultural work that regimes of information rights do, and to appreciating the ways in which formally separate regimes of information rights intersect.
Human beings and human societies are constituted by webs of cultural and material connections. Our beliefs, goals, and capabilities are shaped by the cultural products that we encounter, the tools that we use, and the framing expectations of social institutions. Those processes play out in concrete contexts, involving real spaces and artifacts that we encounter as embodied beings. We cannot claim to judge cultural and social institutions from a vantage point of detached, value-neutral distance, as liberal theory would have us do. But we also cannot avoid the necessity of judging. The legal, technical, and institutional conditions that shape flows of information to, from, and about us are of the utmost importance not because they promote free speech or free choice in markets, but because they shape the sort of subjectivity that we can attain, the kinds of innovation that we can produce, and the opportunities for creation of political and ethical meaning that we can claim to offer.
Configuring the Networked Self seeks to remedy legal scholarship’s theoretical deficit, and in the process to develop a unified framework for conceptualizing the social and cultural effects of legal and technical regimes that govern information access and use. It asks the sorts of questions with which law traditionally has concerned itself—what regime of information rights is just, and why—but it foregrounds a set of considerations that legal thinking about those issues has tended to marginalize. It considers how people encounter, use and experience information, and how those practices inform the development of culture and identity. In particular, it explores the ways in which social practices of information use are mediated by context: by cultures, bodies, places, objects, discourses, and social networks. From that vantage point, it will consider the ways in which the processes of cultural development and self-formation adapt to laws, practices, and technologies designed to impose commodification and transparency within the information environment.
Within U.S. legal and policy circles, the discourse of information policy reform has been organized principally around the themes of “access to knowledge” and “network neutrality.” Global discourses of information policy reform are organized around parallel themes of access and connectivity. Each of those movements has contributed powerful insights to our understanding of the principles that should inform the legal and technical specification of information rights and architectures. Some information policy problems, however, cannot be solved simply by prescribing greater “openness” or more “neutrality.” The everyday behaviors of situated subjects require spaces where they can be enacted, tools with which they can be pursued, and meaningful legal guarantees in which they can claim shelter. In addition, play is a vital catalyst of creative practice, subject-formation, and material and spatial practice. Facilitating the play of everyday practice requires attention not only to information accessibility and network neutrality, but also to the semantic structure of the networked information environment, and more particularly to the interstices within systems of institutional and informational meaning. Both the legal specification of information rights and the design of information architectures should be guided by the need to preserve room for play in the use of cultural resources, the performance of identity, and the ongoing adaptation of places and artifacts to everyday needs. This mixture of freedom and control is achieved most effectively when regulatory architectures are characterized by semantic discontinuity—by gaps and inconsistencies within systems of meaning, and by a resulting interstitial complexity that leaves room for the play of everyday practice. In an increasingly networked information society, preserving those gaps requires legal and technical interventions designed to counterbalance the forces that seek to close them.
Julie E. Cohen is a Professor at the Georgetown University Law Center. She teaches and writes about intellectual property law and privacy law, with particular focus on copyright and on the intersection of copyright and privacy rights in the networked information society. She is the author of Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press, forthcoming 2011) and a co-author of Copyright in a Global Information Economy (Aspen Law & Business, 3d ed. 2010), and is a member of the Advisory Boards of the Electronic Privacy Information Center and Public Knowledge.
CITP studies digital technologies in public life. It is a joint venture of the School of Engineering and Applied Sciences and the Woodrow Wilson School.