Is the Law Language or Culture?

Almost all puzzles in the field of law hinge on a question something like this, “What does that word or phrase mean?” Difficult legal questions frequently turn on whether a modifier is applied to only the first term in a list, or each term in a list. Other questions are whether a specific object in a case is included (or excluded) by a [vague] category named in a statute. (Is a butter knife a “dangerous object”? A sewing needle? A jagged piece of plastic?)

In keeping with a previous post on this subject, I posit that legal analysis is fundamentally the analysis of language and the culture of that language. The primary worry about this can be phrased as this question: Can there be objectively correct and incorrect answers in a composite analysis of culture and language? Let me illustrate this difficulty with the concepts of semantics and syntax.

As I put on my coat, I tell my roommate, “I’m going out to the store for a few things. Do you need anything?” My roommate says, “There’s no soda in the fridge.”

Did my roommate ask me to get soda? The actual words he said contain no request, command, order, or anything of the sort; he only stated a fact about the contents of our refrigerator. This is the semantic analysis: the construction of the words and their specific meaning. However, most people familiar with our language and culture easily recognize this as a casual, polite request. Obviously, his statement that we are out of soda is in reply to an inquiry aimed at finding out what we lack that I could purchase at the store. It is largely uncontroversial that he means for me to buy more soda, precise language notwithstanding. This is syntactic analysis: the implicit, understood meaning in the context of the situation.

Here’s the takeaway: neither analysis seems entirely “wrong,” and that’s deeply troubling for those who want the law to be clear and black-and-white. The semantics cannot deny that my roommate may well have meant that I am to buy soda, and yet the syntactics cannot reject the fact that my roommate’s language contains no sort of request-in-fact for more soda. This leads to a problem in law: if a statute can be understood in two very different ways, and neither can be said to be wrong, how can we know that the law actually is? We are unwilling to accept that there is no “right” answer for the meaning of the law, because this leads us to the possibility of having two, inconsistent sets of laws depending on the interpretation of the statutes.

Ownership of Digital Material: I own it, so why don’t I have it?

This topic has been well-addressed by a lot of games journalists. The 4th-to-last panel in this comic summarizes the perspectives of many: http://www.escapistmagazine.com/articles/view/comics/critical-miss/8674-God-Emperor-of-Steam-Epilogue

Usually, we think owning something is having something. Even for claims to IP, which isn’t tangible, we have a unique and specific claim to the use of something. With some games, I seem to have a claim to use the software, but only at the discretion and convenience of the service; if the service is not functioning for some reason, I cannot play the game. I also cannot transfer the claim to play the game, as I could in the olden days of 2001 when we bought video games in physical format. One might argue that even buying a book was never an absolute claim over the book’s intellectual property. A copyright means that a bundle of rights are reserved for the author/artist/publisher/developer/creator/whoever owns them, and as such are off-limits to everyone else. Yet there is something different here: I could always resell my single copy of the book after I finished enjoying it. I cannot pass on the joy of a used copy of some games managed by certain species of DRM (or at least, with nowhere near the ease one might expect).

It seems that 99% of arguments about rights to own physical vs. digital objects are centered around the right to republish and redistribute (in one way or another). With only circumstantial evidence, I speculate that the overwhelming impetus behind software developers’ decisions to use digital rights management procedures and mechanisms is to curtail the economically harmful practices of the reproduction of their works.

While some may argue the business practices of EA and Blizzard are not economically sustainable, my question is about the legal sustainability of DRM: “Do practices like ‘always-online DRM’ violate fundamental legal principles of ownership?” While they seem to violate some ethical and cultural notions of ownership, they do seem legally permissible.

One of the early lessons in first year contracts in law school is that you can contract out of, or around, almost anything. If you sign (or click accept) a contract that says you agree to limited circumstances of ownership, there isn’t much of a case that you are entitled to more than your contract permits. For example, Steam’s EULA reads: “All… ownership rights … to the Software and any and all copies thereof, are owned by Valve US and/or its or its affiliates’ licensors.” (Section 2, paragraph E: Ownership). Valve owns the software; we humble peons are merely licensed to play with their toys when Steam feels ok with it.

Illegal contracts are not recognized by courts, but consent to not sell a legal videogame is not an illegal contract because neither the subject matter nor the nature of the contract violates the law. So long as the publisher includes some kind of contractual agreement that you acknowledge and accept the DRM restrictions placed on your game, it seems entirely unlikely that there is any legal recourse available to fight these restrictions.

So let’s hope these practices prove economically unfeasible very, very quickly.

Mediation (by media)

I read Mediated, by Thomas de Zengotita. Twice. I’m still not certain what it really means to “be mediated” in the sense he addresses, but I have a guess.

Mediation is the layer of technology between the self and the world. It is the prism through which reality refracts and determines how we see the world, broken into a spectrum of its parts. It is the difference between taking a photo by looking at the scene you are photographing with your own eyes as you set off the flash bulb, looking at it through the small viewfinder of a disposable camera, or looking at the screen of the digital camera. I like the image of the screen of the digital camera because that is looking not at what you see, but adjusting to what the technology sees. It is placing the perception of the technology above your own perception. To be mediated is to see the world in the terms limited, guided, and directed by technology. It is to understand our relationships in ways that we can explain to our technology. It is to see ourselves in ways that connect to our technology.

Perhaps “mediation” is the extension of the idea that “we shape our technology, and then our technology shapes us.” If this is anything close to what the term means, it is a good term to explain why law—and IP law in particular—is so important to re-evaluate often. As technology changes, we change. If we change, the specifics of our laws must be tweaked and fine-tuned. IP law is concerned with governing the interaction of ideas with the market. If my understanding of de Zengotita’s Mediation thesis is even close, it follows that technology bears on both how ideas are managed as well as the sorts of ideas that a society imbued with a technology produces. IP law, then, is always already mediated. The law is not a response to technology in the way that a person responds to a question, but it is inside the technology in the way that an oak is inside an acorn.

An Early “Breakout” for Video Games in Law

It’s hard to keep these posts short sometimes: it means I can’t cover everything, and there is always so much more to the story. But here’s an interesting tidbit: Atari tried to copyright Breakout in the 80’s, but they were initially denied by the copyright office. The office cited a lack of creativity and the trivial nature of the game as reasons to deny the copyright (in general abstract, these are legitimate causes for rejection of a copyright claim). Atari fought for it, and in 1992 the D.C. Circuit Court (opinion written by not-yet-Supreme-Court-Justice Ginsberg) the court found that the videogame was original, creative, and (as a bonus) non-obvious. The court sent it back to the copyright office to take another look at granting copyright. I don’t know if they ever got it; Breakout has been copied pretty extensively these days. Maybe the copyright was pretty narrow and thin, or maybe it was too widely copied by the time it got back to the copyright office. In any event, the significance of Ginsberg’s opinion is an early statement on the legitimacy of videogames as on-par with other media.

What Good is a Philosopher?

The proper aim of the philosopher, I think, has always been to try to awaken others out of dogmatic slumbers. Before the 18th century, most philosophers were also scientists and mathematicians—also suited to explaining the world to others in ways that may surprise them. I take it that this is what was meant by the blogger who cried out for a philosopher of programming languages: someone to defeat the crippling dogmatism of the field and so allow it to move forward. But defeating dogmatism is no simple task, and it must be done carefully so as to avoid merely shifting the masses to follow a new dogma.

David Hume advocated being a man first, and a philosopher second. I think to be properly human involves a philosophical core: to ask why, to seek answers to questions, to pursue curiosity, to appreciate one’s self and one’s world. Philosophy is largely the practice of grasping onto questions tenaciously- to refuse to let go of something when it becomes complicated or confusing.  Philosophers are like explorers in that the better ones are those who continue exploring after the point where others would give up in boredom, fear, frustration.

To function in our society requires a measure of ignorance or apathy, even if it is only feigned and a suspension of one’s questions and deep concerns. Philosophers tend to struggle with functioning in society because they are unwilling (or perhaps unable) to suspend their own queries of what really matters in favor of sitting through vacuous classes, business meetings, and other meaningless gloss that we slather heavily on our lives. As a result, it can seem like philosophers are defective in some important way- that they’re all weirdos to be shunned. Perhaps they are defective, but they might respond that society itself is defective in some meaningful way. They might conclude that those who operate effectively within this defective society are actually defective in some way, and it may be that certain ways of being defective in a defective system are signs of a higher, proper functionality.

Because of (or perhaps in spite of) all that, the unwillingness of the philosopher to be complacent with the illogical, unreasonable, or unethical portions of society can be (and maybe has been, through history) a useful force for progress and refinement. (Even if Socrates and Plato were not able to change their Greece, their example was understood by the framers of democratic constitutions in the modern era.)

In the digital age, philosophers have an opportunity to contribute their ideas and questions to issues that arise in the face our daily technology. Most arguments over the validity of Wikipedia as a source come back to issues in epistemology. Questions over where transactions take place when done online (for issues of jurisdiction) can be framed in terms of ontology (the study of being; where is the thing we call a “transaction”?) Although philosophy is often thought of as history—something that happened in Ancient Greece and then again in Modern-era Europe— and no longer relevant, good philosophy is an essential element of progress in any age. I see no reason why the same curiosity about natural sciences and methodological thinking is less useful in the 21st century than it was in the 4th century BC or 18th Century. There is as much need for careful thought about complex issues today as there ever has been in the world.

Remixed Culture

The Eiffel Tower, Gangam Style remixes, and the protest marches of the mid-20th Century are all pieces of culture. They represent people in a robust way—their dreams, their identity, their values, how they spend their time, how they see themselves, how they want the world to see them—, and it amazes me that those kinds of things can be represented in a photograph or 3 minute video. Entertainment media is fascinating to me because of the way it captures and represents people, and at the same time shapes them as they react to the captured representations of themselves. Whether they represent struggles, joys, triumphs or defeats (or any combination of events and the feelings that accompany them), our pieces of culture form a patchwork of symbols that tell the story of our civilization.

The law must grow in a way that allows that patchwork to continue to be stitched, even if it sometimes wants to stitch itself in ways we did not think the laws of physical space would allow. With so much of our culture digitally recorded, we can rework, remaster, remix, rewind, review, and all but redo the pieces of our culture. The process and tools of this cultural reworking become their own cultural artifact, symbolizing a culture of reflection, creative generation, and communal response.

The Legal Analysis is this: works derived from copyrighted works, if they use protected elements of the work, can be infringements. The 17th Chapter of the United States Code (a massive collection of federal laws passed by congress) addresses copyright and describes derivative works. However, a landmark 1991 Supreme Court case (Fiest v. Rural) is famous for establishing originality as the key and core precept of copyright. Recent developments in remixing and layering expose the tension between the case law and the statutory law. If remixes use copyrighted material, they can be considered derivative works. However, if remixes are original works, they are subject to their own copyrights. A 1994 Supreme Court case dealt with the creation of parody songs, and is noted for its emphasis on whether the new work is “transformative.” One question that can be posed is this: “Is a remix or mashup transformative or is it derivative?” Seeing some uses of technology to create new works as transformative rather than derivative can abate much of this discord. Generally, the two tools I think have the best potential to help resolve this tension are the Public Domain and Fair Use (which permits transformation of works). By expanding the meaning, significance, and use of these tools, the law can be made friendly to 21st century techno-culture while retaining the basic principles of copyright law.

The Social Analysis is this: When Time magazine named YOU the person of the year, they weren’t merely being pithy or lazy (benefit of the doubt being given). They were trying to capture this new era of Web 2.0, user-generated content, and remixes. They wanted to signal a shift in our culture. We are moving away from the old days of established entities determining who will be the next superstar and toward a future in which blogs and vlogs or a webseries may simply “catch on” and gather tens of thousands of subscribers with millions of views.

Yet as technology gives artistic, political, and social voice to so many new people, I worry that any kind of constructive progress is hindered by the sheer quantity of new material. If millions of people can easily and immediately tweet, blog, comment, post, text, e-mail, message, etc. a CEO, president, senator, secretary, etc., is democracy really served? If there are millions of blogs out there, and even hundreds which I might find greatly important and personally enriching, do I have much hope of finding them, much less reading all of their content? Tagging, categorizing, and searching are all useful tools, but they can only take us so far… we need something better if we are to get the most out of this Era of User Generated Content, the Digital Age, Web 2.0, YOU.

Technology and history have conspired to create a culture delighted by blurred distinctions, reflexivity, and overlap. The remix, the mashup, and other layered works are the cultural artifacts of the upcoming generations. The law must grow very carefully if it is to mete justice here, walking a delicate line between a communal culture of layered uses of ideas and a moral and economic requirement for proper respect for ownership of those ideas being layered.

The Need for Linguistics in Law

A Supreme Court justice wrote an essay on the subject of constitutional interpretation. In response, a noted philosophy professor wrote with some surprise that he managed to write an entire essay about the interpretation of text without any mention of any philosopher of language, linguist, linguistic theory, or theory of interpretation. While I was disappointed, I was not surprised: despite the fact that language and culture underpin the law in the United States, most law schools (none of which I am aware, which isn’t saying much) deal with these subjects head-on (or hardly at all).

Interpretation of language is at the heart of the study and practice of law. The subject of debate in law is over the meaning and application of the language in a statute, contract, court order, or some other legally binding document or sworn testimony. Huge sums of money or even incarceration can hang in the balance of how some phrase is understood in (or out) of the context of surrounding phrases or circumstances. Considering the importance of language in law, I am shocked that law schools do not offer instruction in philosophy of language or linguistics.

Two examples of how words and grammar matter:

“The budget has $500,000 for each of the next two years of this program,” vs. “The budget has $500,000 for the next two years of this program.” Will next year have $250,000 or $500,000?

“Mr. Adams will sue Tim, Tom, Tammy, and Edward,” vs. “Mr. Adams will sue Tim, Tom, Tammy and Edward.” Are there 4 defendant parties or 3 (“Tammy and Edward” could be sued as one party under US law)?

If my friend tells me something that I don’t understand, how can I come to understand it? One theory of how we communicate through confusion holds that the two parties iterate  against each other until they are satisfied that they understand one another. This theory accepts that we clarify our statements with other statements that either try to say the same thing or try to say what the first statement did not mean (understanding by process of elimination).

People frequently accuse lawyers of twisting words- and all too often, that’s a fair an accurate accusation. However, the task of lawyers and judges is often to look at language and untwist the words of sloppy, daily language. I have no idea why they think this task can be reasonably undertaken without any training in linguistics, philosophy of language, logic, cultural or linguistic anthropology, or any other serious approach to communication, meaning, and language.