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.

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.

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.