What is CPA?

The subtle difference between ordinary multitasking and CPA lies in the motivations behind each [2]. Traditional multitasking equally prioritizes simple tasks that necessitate minimal cognitive operation, like drinking coffee and filing papers, with the motivation to accomplish more in less time. In slight contrast, CPA is based on a different state of awareness, similar to that of a crisis. Keeping a threshold level of attention on a single higher priority task, the brain attempts to gather as much outside information as possible from all surrounding stimuli [2]. The reason for this is that most surrounding stimuli are forms of media, constant sources of information—CPA is basically a form of media multitasking. For example, while a person’s main focus is on dinner, he or she is also trying to take in the scene on TV while flipping through the newspaper and checking email on the trusty smart phone companion. The unconscious motivation of CPA is to collect as many details as possible, not just to expedite tasks and save time [2].

Phone conversations while driving uniquely qualify as CPA

A fine line separates ordinary multitasking from CPA, no doubt, but there are three major reasons that a cell phone conversation in a car qualifies as reliance on CPA. First, it naturally becomes a high-priority task since it is an interaction with another person. Second, the driver is trying to take in information constantly, from the cell phone, the road, and any other stimuli in the environment. Third, the conversation is a constant source of new information, completely independent of the driver’s environment and not necessarily able to stop or adjust with driving conditions. Other possible disturbances such as a conversation with a passenger or the radio can easily stop or be turned off according to the needs of the driver. That makes driving while on the phone much more risky.

Hands-free devices don’t solve

Though lawmakers would like to think so, it does not make a difference whether a driver is holding a cell phone or using a Bluetooth device. Once a conversation is in session, the driver loses attention to it, not motor skills. The National Safety Council reports drivers impaired by cell phone conversations, whether hand-held or hands-free, twice as likely to miss traffic signals and react slower [3]. Brain imaging research at Carnegie Mellon demonstrates that driving while just listening to a cell phone (responding not included) reduces occipital lobe activity, as well as parietal lobe activity associated with driving, by 37 percent [4].

Reliance on CPA adversely affects mental ability

Not only is CPA dangerous while driving, but it can also have negative long-term effects on cognition. Stanford University conducted a study in 2009, comparing the mental abilities of habitual “media multitaskers” to infrequent ones, and made some unsettling discoveries about people who are constantly splitting their attention. Contrary to popular belief, regular media multitaskers performed worse than their counterparts on three different tasks, including concentration, memory organization (of simple items like letters, numbers, and shape orientations), and, more shockingly, switching focus from one task to another. The researchers concluded that media multitaskers—reliant on CPA, by definition—were easily and continuously sidetracked by irrelevant information [5].

According to Stone, the very nature of CPA activates the fight-or-flight mechanism in conjunction with it, treating every event—from checking emails to answering phone calls at work—like an emergency. Stone asserts the harms of a constant adrenalized state: slower, poorer performance on tasks, accompanied by a completely unnecessary and avoidable cascade of stress hormones that bring about attention- and stress-related disorders [2].

Despite evidence imploring reconsideration of current driving regulations, it may be long before lawmakers quit trying to falsely legitimize the use of handheld devices. After all, alcohol and automobiles had coexisted for at least twenty years before DUI was even acknowledged as dangerous. CPA impairs both mental ability and attention, and hands-free devices are not a valid solution. Though preservation of basic cognitive skills outside the car is a personal choice, there is still much that the law can do to better protect lives.

References:

1. Governors Highway Safety Association. “State Cell Phone Use and Texting While Driving Laws.” Washington, D.C.: Governors Highway Safety Association; [updated 2011 January; cited 2011 January 10]. Available from: http://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html.
2. Stone L. Bloomberg, “Continuous Partial Attention—Not the Same as Multi-Tasking.” Business Week; [updated 2008 July 24; cited 2010 October 18]. Available from: http://www.businessweek.com/business_at_work/time_management/archives/2008/07/continuous_part.html.
3. U.S. Department of Transportation, Bureau of Transportation Statistics, Transportation Statistics Annual Report 2001. 2002 [cited 2011 January 10] 298:[155] Available from: http://www.bts.gov/publications/transportation_statistics_annual_report/2001/pdf/entire.pdf.
4. Spice B. Carnegie Mellon University. “Carnegie Mellon Study Shows Just Listening
To Cell Phones Significantly Impairs Drivers: Brain Imaging Reveals Drivers Are Distracted Even if They Don’t Talk.” Pittsburgh, PA: Carnegie Mellon University; [cited 2011 January 10]. Available from: http://www.cmu.edu/news/archive/2008/March/march5_drivingwhilelistening.shtml.
5. Gorlick A. Stanford University. “Media multitaskers pay mental price, Stanford study shows.” Stanford, CA: Stanford Report; [updated 2009 August 24; cited 2010 November 7]. Available from: http://news.stanford.edu/news/2009/august24/multitask-research-study-082409.html.

Apurva Tandon is a sophomore at the Harker School in California.

Apple Ipad that also serves as an ebook reader

With the release of Apple Inc.’s iPad, another chapter is being written in the history of digitized media.  Specifically, the iPad continues the work done by products such as the Amazon Kindle and Barnes & Noble Nook, in furthering the development  of the eBook market.

By definition, eBooks, also known as digital books, are e-texts that form the digital media equivalent of a conventional printed book, analogous to the mp3 in the digital music realm.  First developed in 1971 by Michael S. Hart’s “Project Gutenberg”, eBooks have recently recaptured the attention of consumers and technological gurus alike, with the huge retail success of the Kindle in particular.  However, the technology has received an equal magnitude of attention from critics and publishers, who fear the same events that threatened to cripple the music industry as a result of digitized media will occur once more, this time at the expense of the physical book industry.  However, after a quick review of how the mp3 and downloadable music has changed the music industry forever, it seems quite apparent that putting eBooks into the mainstream stands to improve revenue from books, rather than to cripple the industry.

The relationship between the Recording Industry Association of America and the concept of digitized music certainly got off to a rocky start—I don’t think anyone will argue with that.  With the birth of Napster in 1999, music was able to be traded among individuals without any restrictions for the first time, with “consumers” able to collect arbitrarily large volumes of music and other digitized media without having to pay for it.  While the RIAA employed successful litigation to shut the service down, the concept that was the core of the service was carried on in the form of decentralized peer-to-peer file sharing programs—in a nutshell, services which allowed trading and communication between any two computers within the service.  The music and movie online piracy that emerged as a result of these programs sent the RIAA into an uproar, and commenced a campaign against the technology that has lasted for nearly a decade.  However, while the ability to transfer mp3s between computers started as a black market sinkhole for the industry, it led to arguably one of the most successful online purchasing models yet created: The Apple iTunes Store.

Opened on April 28, 2003, the iTunes store would eventually become the single largest vendor of music in the United States.  By incorporating both a pricing model that gave royalties to artists for their downloaded content, as well as built in Digital Rights Management (DRM) technology, the Store successfully bridged the gap between mass digitalization of media and legal means of distribution and downloading.  While the issue of piracy still remains, the monumental success of the service created an opportunity for artists and producers alike to market themselves and distribute their music in an entirely new fashion, as well as developing a new source of revenue.

The value in reviewing the successes and failures of digitized music lies in the fact that with some careful study, those who have their hands in the physical book industry can reach an equilibrium between digitized media and legal avenues for its distribution more quickly and less painfully.  As it turns out, certain niches of the industry have already begun to embrace the concept.

With the current generation of students fully equipped to thrive in a digital age, the relationship between student and academia has become increasingly more digital and liberal.  Services such as JSTOR, which license massive archives of academic literature and content to universities and libraries, including Cornell, allow students to have unprecedented access to academic journals and the valuable research that they contain.  Additionally, online education technology, such as those developed by Aplia and other like services, have begun to change the way students interact with course material, with online tests and problem sets being readily integrated into a student’s coursework.  Both examples demonstrate the potential of digitized literature to change the way information is acquired and shared.

Currently, overly restrictive DRM has been holding the eBook industry back, as a lack of technology standardization and limitations on distribution have created a stall in the mainstreaming of the technology.  Publishers, with good reason, are hesitant to let in digitized literature technology, as it certainly threatens to send an earthquake through the industry, just as digitized music did the same for the RIAA and the rest of the music industry.  However, I remain a firm believer that technological progress is an inevitable phenomenon. eBooks and the eReaders used to view them will continue to grow in their influence on the ways we interact with books.  If the industry’s constituents have any foresight whatsoever, they will eventually see the immense potential of the technology, to create new revenue streams for publishers and authors alike as well as increase the availability of and ease of access to academic and commercial literature to an increasingly tech-savvy consumer.  Only time will tell how soon and how rapidly that realization occurs, but I believe (and hope) that it is soon.

Sign at Google's headquarters

Searching “news” on Google leads to an interesting result. The major Internet search engine corporation has been frequently making its own headlines in the past few months. These recent stories curiously do not follow the typical repertoire of purchased acquisitions, a gargantuan Google gobbling up smaller companies. In fact, the corporation’s image of unrelenting growth is now marred by a few cases of struggles and even defeat.

For instance, on February 24^th, three big names in Google’s administration were labeled criminals under Italian media law [1]. Additionally, stringent censorship of queries in China has forced the company to face the possibility of giving up its significant revenue source in Asia [2]. This recent turn of events may illustrate a Google under distress but simultaneously highlights a sociological truth. People who actively participate in online culture, also called netizens, are responsible for producing their own value and, in turn, influencing the world they occupy.

The Web is the ideal medium for the public to contribute and absorb ideas. This communication is versatile, as it can take shape in several forms such as blogging and video chats. Furthermore, the Internet is easily accessible, and websites can be updated instantaneously. Its presence extends globally as well. Consequently, users’ actions can have an impact to the same extent. The Italian incident is an example of how the common man’s abuse of the Web’s network has cost Google and, more importantly, may introduce regulation to the Internet.

A clip posted onto Google Video in 2006 shows an autistic student in Turin being insulted and physically assaulted with objects thrown by classmates [3]. In a symbolic clash between personal privacy and public freedom of expression, the Italian court asserts that Google violated privacy laws because the company is allegedly making advertisement revenue from the victim’s personal data [4]. As a result, the corporation’s chief privacy counsel, senior vice president, and former chief financial officer each received a six-month suspended sentence [5]. This mishap raises alarming questions for the future of virtual independence, a right that firmly defines the Web’s founding principles.

Is this one defeat going to cripple Google? Absolutely not. However, there are more serious implications to be considered. The root of the problem with the Italian court decision is that “the mailman got blamed for delivering a malicious letter” [6]. It is evident that Google and its executives had no involvement in recording or uploading the video clip, yet Italian law punishes the corporation. This case is the first instance in which the company is guilty for outside content posted onto its system [7]. Similar accusations may easily become a destructive norm in the future, knowing how legal cases tend to use former decisions as precedents.

If companies and executives continue to be held liable for hosting user-uploaded material, then some level of regulation to minimize risks is inevitable. Regrettably, the possibility of clashing with the law will sharply silence millions of potential voices. From the netizen’s perspective, the extra effort to pass a censorship filter is not worth the injustice in regulating the Internet. Businesses may refrain from posting expressions of opinions that may be prosecuted. Online publications with good intentions of exposing corruption, negligence, or crime in government and society will never reach the Web to issue a warning to the world.

The Chinese government’s control of its media exemplifies an existing model of the potential consequences of the Google verdict in Italy. Google declared in 2006 that it would strive to make free speech more accessible in China. The search engine company’s most notable approach is to insist that the government tear down its “Great Firewall,” which prevents Chinese users from finding information and images that oppose government interests [8].

Unfortunately, Google has not made much progress. Three years after stating its bold mission, Google China (google.cn) is still censoring politically sensitive search queries, such as Tiananmen Square, in order to stay in the market [9]. But this January, the corporation issued an ultimatum that may break the stalemate in its progress. After Gmail accounts of Chinese human rights activists were forcibly accessed in a cyber attack, Google announced it was no longer willing to cooperate with Chinese media laws and would stop censoring search results on google.cn [10]. Of course, this would mean that Google would have to surrender its operations in China.

Despite Google’s disguise of an altruistic goal to open up flexibility of expression in China, it turns out that Chinese netizens are thriving on their own. One particular case demonstrates how a positive use of the Internet can dramatically incur success and simultaneously become a valuable resource for other net users.

Wang Jianshuo opened up a personal blog in 2002. He published a simple post that provided information about the shuttle service at Pudong Airport in Shanghai. Within two weeks, his blog was accumulating so much traffic that Google’s page ranking system spit out his webpage as the first search result for “Pudong Airport” [11]. The key to Mr. Wang’s success was that his bus schedule information was one of very few written in English; foreign travelers to Shanghai flocked to his blog for help.

Now, Internet users can worry less about censored search results in China. Bloggers stationed within the country post all the information possible, including opinionated posts. The best part about the contemporary wave of blogs is that owners have never reported a case of being shut down by China’s Internet patrol squad. Discussions critiquing the one-child policy or the national university entrance exam, which were unthinkable in the past, now flood with activity as a result of personal websites [12].

In support of the argument that people form themselves through the Internet, Americans have even jumpstarted careers by maintaining private blogs. For instance, John Pasden began his by posting daily reflections of living in China. He now manages an online language school that teaches Chinese [13].

The World Wide Web truly belongs to its users and their actions. An unforgivable video produced by a group of Italian teenagers sparks a debate between personal privacy and freedom to publish any data. A Chinese blogger provides living evidence that a giant Internet search engine is not necessary to work around China’s stringent media regulation. Google can be thanked for making news headlines that prove the Internet is your World – so how will you contribute?

References

1. Barry, Colleen. Italy convicts 3 Google execs in abuse video case. Associated Press. February 24, 2010. http://news.yahoo.com/s/ap/20100224/ap_on_hi_te/eu_italy_google_trial (accessed February 24, 2010).
2. BBC News. Google ‘may pull out of China after Gmail cyber attack’. January 13, 2010. http://news.bbc.co.uk/2/hi/8455712.stm (accessed February 24, 2010).
3. Donadio, Rachel. Larger Threat Is Seen in Google Case. February 24, 2010. http://www.nytimes.com/2010/02/25/technology/companies/25google.html?pagewanted=1&ref=world (accessed February 24, 2010).
4. Barry, Italy convicts 3 Google execs in abuse video case.
5. Donadio, Larger Threat Is Seen in Google Case.
6. Ibid.
7. Barry, Italy convicts 3 Google execs in abuse video case.
8. Liedtke, Michael. Google’s convoluted search for China compromise. Associated Press. February 11, 2010. http://www.google.com/hostednews/ap/article/ALeqM5guOs90WI2MS9hDERAfAJe-9a1lwgD9DQ83EG2 (accessed February 24, 2010).
9. Krazit, Tom. Google’s censorship struggles continue in China. cnet. June 16, 2009. http://www.cnn.com/2009/TECH/06/16/cnet.google.tiananmen.square/index.html (accessed February 24, 2010).
10. Macmanus, Richard. Despite Tough Talk, Google Still Censoring in China. Read Write Web. February 24, 2010. http://www.nytimes.com/external/readwriteweb/2010/02/24/24readwriteweb-despite-tough-talk-google-still-censoring-i-42333.html (accessed February 24, 2010).
11. Cannon, Maile, and Jingying Yang. Bloggers Open an Internet Window on Shanghai. February 24, 2010. http://www.nytimes.com/2010/02/25/technology/25iht-rshanblog.html?ref=technology (accessed February 24, 2010).
12. Ibid.
13. Ibid.

To summarize Professor Diamond’s enlightening scientific analysis, all societies began as small groups of hunter-gatherers, some of which, through serendipitous geological circumstances and chance availability of a higher distribution of plants and animals, began to domesticate crops and livestock. These groups are classified as food producers. Because crops and livestock can sustain a larger population, food producers expanded into tribes and eventually states with job specialization and hierarchical government. As opposed to nomadic hunter-gatherers, it was the food producers who found themselves in a position to invent guns and steel.

Their highly structured labor systems, which also supported the existence of soldiers and armies, were the perfect outlets for these new developments. The immense size of states and their animal taming practices ultimately gave rise to the evolution of germs, the spread of which requires the large, concentrated populations characteristic of stationary societies. Combined, guns, germs, and steel—the products of sheer geographical happenstance—allowed states the social structure necessary to conquer less technologically advanced, systematically organized peoples.

Juxtaposing assumptions based on race and biology with theories grounded in geography and biogeography, Guns, Germs, and Steel reflects Diamond’s realization while abroad in New Guinea that not only are native hunter-gatherers equally as intelligent as individuals of European descent, they are also far more resourceful. The work, however, is not without flaws. Diamond’s utilization of contemporary ethnographic observations of some peoples to provide explanations of the prehistoric past of all peoples can be could be considered methodologically problematic. Moreover, his failure to place the knowledge he uses in its historiographical context weakens the force of his arguments as historical explanations. Yet despite its imperfections, the piece remains an impressive achievement of imagination and exposition. In a single book, Diamond has satisfactorily explained why Eurasians conquered the world in the past half-millennium. In reading the book, it is important to bear in mind that, despite Diamond’s limited attempts to rationalize it, his principal aim is not to explain why the subcontinent at the western edge of Eurasia acquired so much power over the rest of Eurasia in the period from 1500 to 1900. He is instead concerned with the original source of Eurasian predominance.

Though criticized by the New York Review of Books for being too “reductionist” and geographically determinist and for methodically typologizing groups without regard for other influential factors such as culture, Diamond seems to understand that culture can only evolve under the proper environmental conditions and is therefore secondary to them. Culture is, Diamond recognizes, a product of peoples’ agriculturally determined societal arrangements (villages, cities, etc.) rather than the appropriate lens through which to analyze what he terms “the grand pattern of history.” This is not to say, however, that cultural idiosyncrasies are not valuable in discussing differences in the fates of diverse, distant societies over relatively brief periods of time and with respect to short-term consequences. (For instance, how would the course of Germany’s history have been different had Hitler been killed by the bomb surreptitiously placed in his office in 1944?)

In the end, Diamond’s interdisciplinary explanation for the observable divisions in societal development does not seem like an abstruse scientific theory but rather a layman’s rationalization of seemingly obvious patterns. Indeed, the arguments seem so simple at times that readers are forced to question why the book has garnered so much acclaim. However, this is only a testament to Diamond’s success at transforming years of research in a multiplicity of fields into a seamless, straightforward and readily accessible work. While there are of course numerous difficulties in framing history through a scientific perspective (the impossibility of performing replicable or controlled experiments, the complexity and number of variables and the uniqueness of each situation, the long time and spatial scales, etc.), Diamond has managed to exhaustively address and convincingly dispute the arguments associated with racial egalitarianism and hereditarianism. Having attacked the major issue of inequality between countries, hopefully Professor Diamond will now turn to the presence of inequality within them.

Social networking websites offer a large degree of “control” by which individuals shape their digital image: users can select a precise moment in time to act as their symbolic representation; what personal information to offer; who can view this information; and even restrict information to specific users. Larger social forces, however, inform all of these decisions. Perhaps it is best to step back and ask the following question: how does an individual determine the correct course of action for any of these options?

In The History of Sexuality vol. I, Michel Foucault outlines the panoptic society and how disciplines are enforced via the act of seeing (or not seeing)[i]. The panopticon was grounded in the Bentham’s prison where the inmates were subject to being watched at all times by a tower in the middle of a courtyard[ii]. The inmates could never tell if the guard was watching them and therefore had to assume they were constantly under surveillance. This mode of enforcing social norms exists outside the prison as well, and there is no better example than online social networking . These websites gather information and disseminate it among networks of individuals. Much like the panoptic prison, users of the online social networking are never aware if they are under surveillance because at any given moment, someone could be examining their online profile.

The theory of disciplinary power outlined above begins by examining society as a series of social norms, or habits, that people perform in order to be accepted by society at large[iii]. History provides many examples of how rituals can influence what people hold to be true; two examples are the role of women within society to the normative view of sexuality[iv]. Overarching themes of identity, for example, what it means to be a student at an Ivy League school, construct boundary markers for normative interactions. The existence of one (or many) grand narrative(s) within social networking is also undeniable, and in many ways, shapes individuals both within these online networking sites and outside of them as well.

In the context of one social networking site, Facebook, users are given the option of how much information they willingly choose to reveal to other users. Although this may seem like an empowering measure – where users can actively redefine their existence by utilizing privacy options – it implicitly creates the norm that certain information is reserved for a specific group . These privacy options are usually seen as harmless gestures however their underlying causes are driven by larger social implications.

The underlying normative assumptions of these actions – from removing images of oneself to excluding information – is driven by the larger social implications of what it means to be an individual. Regardless of what identity these users gravitate toward, the image, or fantasy, they project through social networking is usually the image they aspire to embody based upon their own understanding of reality. Slavoj Zizek, in his film A Perverts guide to Cinema, proclaims, “…there are fictions that already structure our reality. If you take away from our reality these fictions that regulate it, you lose reality itself”[v].

The fictions that structure modern day social networking sites–norms of beauty, intelligence, or even responsibility–are beginning to influence individuals’ behavior outside of social networks. It is not uncommon for the subject to regulate their behavior because they realize, at any moment, their actions could be recorded and disseminated to other individuals via these social networks. Moreover, the act of removing these undesirable moments in time demonstrates how the social ideal of an individual permeates the everyday actions of active users.

What is this gap between the fiction of reality and reality as it happens? This separation illustrates the desire of an individual based upon their ideal social identity and their social identity as it actually exists. Perhaps the fantasy projection of the self is not as dangerous as Bentham’s panopticon, but there is reason for concern. These fantasies may actually structure individuals’ reality in a way that restricts individuals’ actions in a radical way. In an attempt to create a social network, these networks could actually limit the possibilities of how individuals see themselves because they are constrained by their own digital fantasy.

[ii] ibid

[iii] ibid

[iv] Paul Rabinow, The Foucault Reader: An introduction to Foucault’s Thought, 1991

[v] Sophie Fiennes, Director, The Perverts Guide to Cinema, 2006

In Cyberspace and the Law of the Horse, Chicago-area appeals judge, Frank Easterbrook mocks the idea that there can be such a thing as “Property in Cyberspace” or cyber-law in general, which he compares to the law of the horse. As Easterbrook explains, there is all kinds of law involving horses: racing commissions regulations, contracts over stud fees and veterinary malpractice, yet nobody claims to be a “horse lawyer,”  Similarly, as Professor Lawrence Lessig explains, Easterbrook’s view is that the law of cyberspace is nothing more than “torts in cyberspace, contracts in cyberspace, property in cyberspace, etc.” There is no “cyberlaw” any more than there is horse law.  Lessig disagrees, explaining “there is an important general point that comes from thinking in particular about how law and cyberspace connect;” specifically, “the limits on law as a regulator” and the “techniques for escaping those limits.” Lessig claims cyberlaw is valuable because all law can draw from its lessons.  In this article I will, using the “commodification of music” as a case study, argue Lessig is correct.  And whether we can learn from these lessons is one of the central legal, cultural and policy questions facing the Internet, and society, today.

The ‘Private Property’ Sign in Cyberspace

There was a big high wall there, that tried to stop me

A sign was painted, said ‘private property’

But on the backside it didn’t say nothing

That side was made for you and me.

– Woody Guthrie, “This Land is Your Land”

For Frank Easterbrook the question of regulating cyberspace is easy, “develop a sound law of intellectual property and then apply it to cyberspace.” But here, he is far too facile; or perhaps, formalistic.  As Professor Radin explained – in critiquing Easterbrook’s intellectual cousin, Richard Epstein – “about property…he is an unabashed conceptualist and formalist.” Easterbrook and Epstein are conceptualists because they think “there is a concept of property that, in fact, is the right one or the only one.” And they are formalist because they think “the concept of property can be applied formally, i.e., logically and mechanically, to yield results that should be obvious to readers and legal decision makers.” But what if there is no one, “correct,” concept of property? (Or “intellectual property” for that matter.)

As Radin explains, “not only is property vague and evolving; it is also essentially contested.” For instance, French anarchist Pierre-Joseph Proudhon famously declared “property is robbery.” But even mainstream legal commentators are fractiously split on the idea of what constitutes property.  As Professor Mossoff has explained, there are essentially three theoretical conceptions of property in Anglo-American law:  the exclusion theory; the “bundle of rights” approach; and what Mossoff labeled the “integrated approach,” which essentially combines to two former approaches. Central to all conceptions is the “right to exclude.”

The reason it is not, as Easterbrook contends, “easy” to apply “current property principles” to cyberspace is because the raw material of cyberspace is information. And information is non-rival, which means that one person’s use does not prevent another’s.  Given this, a conception of property that depends on a “right to exclude” does not make any sense.  There is no reason to exclude anyone from using a non-rival good, as there is no zero-sum dynamic.  The more people that can use information can gain utility from it; and since one person’s use does not compete with another’s there is no need to exclude anyone, and certainly no basis to apply legal rules founded on a so-called right to exclude – at least not based at the level of “use.” The rejoinder, of course, is that “use” is not the issue – creation is.  In other words, while one could agree that unlike a law of trespass there is no need for exclusion-based property laws to prevent misappropriation of “my land” in cyberspace, the information will not be created without a property-like protection that permits economic exploitation of the information-based work. This, of course, is the rationale behind copyright and most “intellectual property.” But there is another approach, one akin to the folk tradition in music, which Radin calls “progressive naturalism.”

Creationism vs. Evolution – in the “property” context

My computer is future shockin’ Download this and you’ll start talkin’
upgraded you’re now walkin’ compatible with all that is rockin’
comin’ on fast it’s gettin’ digital it’s so huge like a spiritual
rippling out to every individual this is life it is a miracle

Evolution has exponential timing it’ll be

Half as long ‘til the next breakthrough that blows our mind
It’s up to the people to brave on with experimentation;

Move forth the species by using our imagination

– 311, “Evolution”

As noted earlier, Radin sees property law as “evolving” and articulates a view she calls progressive naturalism:

one could better respect the deep moral significance of some property by becoming a progressive naturalist. A progressive naturalist would say that there is a best conception of property, but we haven’t yet reached it. The history of changing property notions is describable as a history of rejecting bad parts of the institution and substituting better ones – a process that can continue indefinitely. This view would allow us to suppose we have reached a point in history when we can recognize that exclusionary rights…are wrong, and have always been wrong.

Radin’s analogy to evolution is by no means a new one; in 1920 Judge Jethro Brown wrote in the Yale Law Journal, “I am in agreement with those who speak of the ‘evolution of law.’ I find in legal history an inevitable tendency to change, a continuing adjustment to environment, and a process of survival of the fittest, in the course of which the rules of human conduct less fitted to a particular milieu are squeezed out of existence and give ways to rules best-fitted for that milieu.” We are currently observing such a changing milieu now, as Benkler argues in The Wealth of Networks, we are seeing a shift away from an industrial economy to a “networked information economy.”

But the “weary giants of flesh and steel” don’t want to release their hold on power.  As Benkler explains, “the economic and social forces are pushing at each other in opposite directions, and each is trying to mold the legal environment to better accommodate its requirements… we stand at a point where information production could be regulated so that, for most users, it will be forced back into the industrial model.” Benkler too, analogizes to evolution, citing Steven J. Gould’s theory of “punctuated equilibria” – i.e., evolutionary change takes place in rapid busts, separated by long periods of stasis. The problem with common law is that it evolves too slowly – the kind of ‘phyletic gradualism’ that Gould and Eldridge were critiquing.  The answer then is not to slow the development of cyberspace by forcing it back into the industrial model (and its concomitant body of common law: torts, contract and property).  Rather, it is to speed the development of law, by forcing it to adapt to the fast-changing world of the Internet, supercharging precedent and allowing the kind of “rapid busts” (as Benkler says – the ‘shock’ to the system) that results in meaningful change.

Under the industrial model, Easterbrook is clearly right – intellectual property was required in order to incentivize the creation of information-laden value.  But under the emerging networked information economy, he is clearly wrong – as Benkler convincingly demonstrates.  Indeed, intellectual property rights themselves were the legal mutations spawned by required adaptations to changing social and cultural environments, usually spurred by technological developments.  But just because an adaptation worked in the past, does not mean it will continue to work into the future.  So before we look forward, let’s first look back – at the fossil record, so to speak – to see that creators will indeed create in the absence of the limited monopoly-grant of so-called intellectual property rights. The species to be examined is music and musicians.

In his very insightful article “Whose Music Is It Anyway: How we Came to View Musical Expression as a Form of Property,” Professor Michael Carroll explores the history – from the ancient Greeks to the present day – of music. He concludes, “removing copyright protection from musical works and sound recordings would not eliminate professional music making. On the contrary, historical evidence strongly suggests that the demand for the services of a class of professional musicians and composers would be sufficient to induce society to find alternative means to enable this group to practice its art.” He explains: “By taking a panoramic view of the history leading up to the current controversy, I seek to create room in the discussion for cooler consideration of fundamental change. Historical evidence demonstrates that Western society has conceived of music’s social role and the roles of those who create and perform music quite differently over time. Rather than assume that music is a form of property and that the only challenge is how to protect it against new threats posed by digital technology, we should acknowledge that other means of stimulating musical creativity are feasible and were successful under different material and cultural conditions.”

From the Harmony of the Spheres to Metal Machine Music

Ancient Times

Oh, the streets of Rome are filled with rubble,
Ancient footprints are everywhere – Bob Dylan (“When I Paint My Masterpiece”)

Pythagoras, who according to legend was inspired by the sounds made by blacksmiths hitting anvils with hammers of different weights, discovered the consonant musical relations between strings of difference lengths.  From this, he deduced that each of the planets, based on its distance from the Earth, produced a different note – the Musica Mundana, or harmony of the spheres. On this view, music was part of a larger set of mathematical, harmonic relations that govern the physical world. In Lessig’s terms, there was a musical architecture, based on mathematics, and music was viewed as “a force of nature not susceptible to individual claims of ownership.”

Moreover, music was very heavily regulated (more by ‘norms’ than ‘law’) and while youth underwent compulsory music education to help nurture their soul, among intellectuals “the performance of music outside the home was considered vulgar and inappropriate for any but slaves.” As Aristotle, perhaps anticipating karaoke, wrote: “no freeman would play or sing unless he were intoxicated or in jest.” In sum, “music was not a form of property in the ancient world. Instead, it was a gift from the gods expressed in a set of musical conventions to which composers and performers were expected to adhere and which reflected the greater mathematical order of the cosmos.” Nevertheless, we see the Lessig factors starting to emerge in the context of music, at least with respect to architecture and norms. While the Greeks may have developed some form of musical notation, it was lost during the Dark Ages.

Medieval Times

The only important thing these days, is rhythm and melody.

Rhythm …and melody

- Big Audio Dynamite II (“Rush”)

During this time musical notation was (re)developed, thus enabling the objectification of musical expression by permitting music to “take on an external manifestation that could be read as well as heard.” Using notation, Pope Gregory wrote down certain chant melodies and the “Gregorian” chant was born.

By the eleventh century, staff notation was developed. Because staff notation freed music from dependence on oral transmission, as musical historians Donald Grout and Claude Pasilica stress, its development was “as crucial for the history of Western music as the invention of writing was for the history of language.” This technological change – which enabled new architecture (or musical “code”) – was a “system shock” that precipitated one of the first evolutionary developments in the commodification of music. Nevertheless, early staff notation did not specify the duration of notes, so rhythm was still subject to interpretation.

The late Middle Ages also saw the rise of polyphony, which involves the use of more than one melodic line, either in harmony or in different directions like a classical Bach fugue. When Pope Clement V moved his seat to Avignon in the fourteen century, secular French music started to influence the liturgy with polyphonic compositions. The Church resisted this move, and Pope John XXII commanded in his 1324 Bull Docta Sanctorum Patrum that “no one shall henceforth consider himself at liberty to use polyphony in the singing of canonical Office or in solemn celebrations of the Mass.” But the “increasing divided and corrupt Church authorities were losing control over the liturgy and the congregation: liturgical polyphony continued to flourish.” Norms, Lessig would say, were changing, and papal “law” could not constrain them.  By 1364, during the pontificate of Pope Urban V, composer and priest Guillaume de Machaut penned La Messe de Notre Dame, which became the first officially-sanctioned polyphony in sacred music.  Reactionary Popes, however, seem back in vogue. Here, over 600 years ago, we see norms and law competing over new musical architecture in a manner very similar to the disputes that exist on the internet today.

Guilds and Jongeluers

Histories of ages past; Unenlightened shadows cast;

Down through all eternity; The crying of humanity.
‘Tis then when the Hurdy Gurdy Man; Comes singing songs of love,

- Donovan (“Hurdy Gurdy Man”)

“The two secular developments most important for the commodification of music were the emergence of the troubadours in the latter Middle Ages and the formation of musicians’ guilds. Although the troubadours and their ‘songs of love’ signaled the emergence of self-aware singer/songwriters, who paid to have their compositions transcribed, they did not assert proprietary claims to their music. Musicians’ guilds, in contrast, assert nascent proprietary interests in that only guild members could publicly perform music within city limits, a right vindicated by law.  So here – to again apply the Lessig factors – we start to see the emergence of market and law, in addition to norms and architecture, as influencing the direction music was taking.

As medieval cities grew (a literal change in the Lessig factor, architecture), “public performance of music came to rest in the control of a guild of specialized performers who had the exclusive right to perform music at public gatherings within the city walls.” This, notes Carroll, was another important development in the commodification of music – “Although the exclusive right to public performance appears to be more a regulation controlling labor than one creating property rights, musical notation was still not widely in use for secular music and therefore control over the musical laborer was a form of control over the music itself.” The guild structure was devised mainly to allow local musicians to secure themselves from economic (or market) competition by traveling minstrels and jongleurs. While this improved the social status of musicians, it affected the music in two ways: at one level, it retarded development as the “guild structure, with lengthy apprenticeships, appears to have stultified experimentation; on the other hand, it allowed musicians to hone their craft and develop increasingly complex polyphonic music.” A good example is the Bach family, which led many German guilds and, of course, produced a famous composer known as Johann Sebastian. The guild use of law to limit markets to protect themselves against competition from the jongleur is, as argued in more detail later in this paper, similar to the way that the RIAA is trying to protect themselves from competition by modern indie bands.

The Renaissance

Then she opened up a book of poems; And handed it to me
Written by an Italian poet; From the thirteenth century.
And every one of them words rang true; And glowed like burnin’ coal
Pourin’ off of every page; Like it was written in my soul from me to you,
Tangled up in blue.

– Bob Dylan (“Tangled Up in Blue”)

The Renaissance, of course, was ushered in by the invention of the printing press, a technological development whose effect on copyright and the development of intellectual property law has been much heralded and examined. As Professor Henry Perritt, Jr., Professor of Law at the Chicago-Kent College of Law, has explained:  “As technology changes, it increases and decreases the risks of certain kinds of market failure, altering the incentives to create and perform music.” He explains how before the printing press one had to be in the presence of the composer performing to hear the music, but the printing press – through sheet music – allowed performance of another’s music without any contact between composer and performer. And before sound recording, music consumers had to be present at a live performance. With each advance – phonographs, magnetic recording, digital recording, and digital compression resulting in increased bandwidth – “raised questions about the proper balance between law and technology in preserving appropriate incentives for producing and consuming music.” But, explains Perritt, “too often, observers only focus on the possibility for technological advances to reduce incentives to create and distribute music. Insufficient attention usually is given to the tendency of some of the same technological advances to increase incentives to create and produce because they reduce costs of original producers.”

For instance, between 1809 and 1820 Beethoven arranged 176 Irish and Scottish folk songs for the Scottish publisher, George Thomson, who wanted only the best composers and poets to work on the project.  An example is “Oh! Who, my dear Dermot” – the melody is ‘Crooghan a Venee’ with lyrics by William Smyth.  The song is about the Irish Parliament’s decision in 1800 to abolish itself after corrupt members were bribed by Lord Castlereagh’s ‘English gold,’ and speaks metaphorically though the eyes of ‘Norah,’ who represents Ireland. Beethoven designed these settings for amateur performers and some of them were recorded by folk-balladeer Richard Dyer-Benett. The Beethoven project demonstrates, in a significant way, a merging of folk and high culture – indeed, perhaps these compositions can be characterized as the first ‘mash ups.’ But more significantly, they demonstrate the importance of the public domain and how culture, heritage and history become fused in music.

It was the technology of the printing press that allowed this, much like the technology of You Tube, computer-recording and mixing software such as ProTools and social-networking sites like MySpace have dramatically changed the need for economic and human capital previously needed to record and promote music.

Metal Machine Music

“I have heard this record characterized as “anti-human” and “anti-emotional.” That it is, in a sense, since it is music made more by tape recorders, amps, speakers, microphones and ring modulators than any set of human hands and emotions. But so what? Almost all music today is anti-emotional and made by machines too.” – Lester Bangs

Metal Machine Music was an album by Lou Reed, widely reputed to have been made as a begrudging fulfillment of his contract to his label but argued by some, including legendary rock critic Lester Bangs, to be a brilliant genre-creating advancement in noise-rock. Disputes with record labels are legendary in rock music – from the Sex Pistols’ EMI to the Floyd classic, Welcome to the Machine – and, until now, artists have been essentially dependant on the label’s A&R (artist and repertoire) departments to ‘discover’ and promote them.  This was, as Perritt explains, important to reduce “search costs” for consumers and connecting artists with fans. But those search costs don’t exist anymore, as “new technologies profoundly change the possible ways in which the functions performed by existing intermediaries can be performed and therefore threaten the embedded capital of major record labels. That is why they have been so militant in trying to slow the uptake of the technologies.”

Evolution…Revolution

“There was music in the cafes at night; and revolution in the air”

– Bob Dylan

Benkler says we are at a crucial time in history, as he says in the title to chapter 1 of his book, The Wealth of Networks, a moment of opportunity and challenge, which he describes at the end of Chapter One, as follows:

We are in the midst of a technological, economic, and organizational transformation that allows us to renegotiate the terms of freedom, justice, and productivity in the information society. How we shall live in this new environment will in some significant measure depend on policy choices that we make over the next decade or so. To be able to understand these choices, to be able to make them well, we must recognize that they are part of what is fundamentally a social and political choice – a choice about how to be free, equal, productive human beings under a new set of technological and economic conditions.

We have looked back at history, and seen how Lessig’s factors – market, architecture, norms and law – apply not only to the world of cyberspace, but to law and society generally.  They represent not the law of the horse – but the law of the horse & carriage, and horseless carriage – the law of change.  It can advance; or it can restrain.  The primarily legal, cultural and policy issues that we face are whether we are going to advance law and culture, or retrofit the internet to fit old, outdated law and systems, as Frank Easterbrook seems to want.

I have looked at music as a case study, showing how the Lessig factors have influenced the evolution of music over time.  The lessons learned are that we should not slow the pace of change to that of the law.  Rather, as Perritt explains, “copyright law should be interpreted, or amended if necessary, to permit informal, non-commercial file-sharing – conduct which will occur in any event, regardless of what the law says, and which the law should not discourage because it actually encourages further creative effort. He also states, ‘Regardless of what the law says, however, the music industry will not prevail in the end, any more than protectors of the status quo have prevailed in the past. Technology and market forces will win. Consumers and producers of music – and society – will benefit.” He concludes, and I agree:

the bleak scenarios painted in public policy venues by the music industry about the risks posed by the new technologies are considerably exaggerated. The reality is that the new technologies do not threaten the position of musicianship and other creative actors but are rather the embedded capital of an elaborate, sophisticated, and arguably bloated system of intermediation that was designed to deal with old technologies.  The system that the RIAA and MPAA are suing school children to protect is obsolete, and never had much to do with creative effort.”

Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. Chi. Legal F. 207, 210 (1996) (comparing cyberlaw to “horse law” in that while there are numerous legal issues that arise in the context of horses – people being kicked by horses, horse racing law, care of horses by veterinarians – there is no “law of the horse,” which would inevitably be “shallow and miss unifying principles.”)

Lawrence Lessig, Commentaries - The Law of the Horse: What Cyberlaw Might Teach, 113 Harvard L.R. 501, 502 (1999).

Id. at 502 (these techniques include using “constraining tools” other than law, such as architectures, norms and markets).

Easterbrook, 1996 U. Chi. Legal F. at 208.

Easterbrook is a graduate of the University of Chicago; Epstein is the Director of the University of Chicago’s “law and economics” program. http://en.wikipedia.org/wiki/Richard_Epstein.  Both are associated with the “law and economics” movement.  http://en.wikipedia.org/wiki/Law_and_Economics.

Margaret Jane Radin, Symposium on Richard Epstein’s Takings: Private Property and the Power of Eminent Domain: The Consequences of Conceptualism, 41 U. Miami L. Rev. 239, 239 (1986).

Id. Easterbrook’s conceptualism, for instance, is exhibited by his query: how can we tackle the question whether new technologies have made copying too easy when we “have not solved the problems posed by yesterday’s technology?” (Easterbrook, 1996 U. Chi. Legal F. at 208); his reference to the “correct allocation” of domain names (Id. at 212); and talks about having “answers” to making “rights more precise.” Id. at 208.

Id. (also stating “Epstein’s tacit acceptance of conceptualism and formalism goes a long way to explaining why he seems so blithely to believe that the results many readers find breathtakingly wrong are just obvious to rational people”).  From my experience with Easterbrook the same thing can be said – I find him breathtakingly wrong and he finds me irrational; or, as he once said to me in oral argument, “right out of the 60s”).

Id. at 241

Pierre-Joseph Proudhoun, What is Property? Or, an Inquiry into the Principle of Right and of Government (1840). It’s not hard to imagine what Proudhoun would say about the law and economics movement given he said the following about economists in the same treatise:  “I have been pitiless in my criticism of the economists: for them I confess that, in general, I have no liking.  The arrogance and the emptiness of their writings, their impertinent pride and their unwarranted blunders, have disgusted me.  Whoever, knowing them, pardons them, may read them.”

Adam Mossoff, What Is Property? Putting the Pieces Back Together, 45 Arizona L.R. 371 (2003)(“What is property? Is it merely a linguistic term, denoting a complex aggregate of separate rights that have been merely bundled together for ease of reference? Is it a matter of only excluding other people from one’s possessions? Or is it something more – a concept that represents an integrated unity of the exclusive right to acquire, use and dispose of one’s things?”)

Easterbrook, 1996 U. Chi. Legal F. at 210.

See, e.g., Harper & Row, Publishers v. Nation Enters., Inc., 471 U.S. 539, 558 (1985)(“by establishing a marketable tight to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”)

Radin, 41 U. Miami L. Rev at 243.

W. Jethro Brown, “Law and Evolution,” 29(4) The Yale Law Journal 394, 398 (1920).

See, John Perry Barlow, “A Declaration of the Independence of Cyberspace,” http://homes.eff.org/~barlow/Declaration-Final.html.

Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom, (Yale University Press 2006) at http://www.congo-education.net/wealth-of-networks/ch-01.htm

See, http://en.wikipedia.org/wiki/Punctuated_equilibrium; citing and linking to: Niles Eldredge and Stephen Jay Gould, 1972. “Punctuated equilibria: an alternative to phyletic gradualism” In T.J.M. Schopf, ed., Models in Paleobiology. San Francisco: Freeman Cooper. pp. 82-115. Reprinted in N. Eldredge Time frames. Princeton: Princeton Univ. Press. 1985.

Michael W. Carroll, Whose Music Is It Anyway? How We Came to View Musical Expression as a Form of Property, 72 U. Cin. L. Rev. 1405, 1412 (2004)(describing competing positions on whether music should be protected by copyright law and how much).

Carroll, 72 U. Cin. L. Rev. at 1412.

Carroll, 72 U. Cin. L. Rev. at 1416.

John M. Steadman, The ‘Inharmonious Blacksmith’: Spencer and the Pythagoras Legend, 79(5) PMLA 664, 665 (1964). See also, http://www.gresham.ac.uk/printtranscript.asp?EventId=462 (“hammers which gave the consonance of an octave were found to weigh in the ratio 2 to 1. He took that one which was double the other and found that its weight was four-thirds the weight of a hammer with which it gave the consonance of a fourth. Again he found that this same hammer was three-halves the weight of a hammer with which it gave the consonance of a fifth.”)

Carroll, 72 U. Cin. L. Rev. at 1421.

Carroll, 72 U. Cin. L. Rev. at 1430-31.

Carroll, 72 U. Cin. L. Rev. at fn. 96.

Carroll, 72 U. Cin. L. Rev. at 1438.

Donald J. Grout & Claude V. Palisca, A History of Western Music, at 57, as cited in Carroll, p. 1441.

http://www.stanford.edu/~jrdx/medieval.html

Carroll, 72 U. Cin. L. Rev. at 1443 & n. 161 and http://en.wikipedia.org/wiki/Polyphony).

“Pope to purge the Vatican of modern music,” The Telegraph 11/25/07, www.telegraph.co.uk /news/main .jhtml=/news/2007/11/20/wpope120.xml (“the Pope is considering a dramatic overhaul of the Vatican in order to force a return to traditional sacred music…the Pope wants to widen the use of Gregorian chant…The International Church Music Review recently criticized the choir, saying: ‘the singers want to overshout eachother, they were frequently out of tune, the sound uneven, the conducting without any artistic power, the organ and organ playing like a second-rank county parish…”)

In Germany, troubadours were called “jongleurs” (derived from the Latin ‘joculare’ – to entertain). In order to merit the label, norms required they know: how to invent, to make rhymes, to acquit himself well as a swordsman; know how to play drums, cymbals and the hurdy-gurdy well; know how to throw up little apples and catch them on the point of a knife; imitate the songs of birds; perform tricks with cards and jump through hoops; play the cittern, handle the clavichord and string the seven-stringed rote; to accompany well with the fiddle and to speak and sign pleasantly. (Carroll, citing Raynor, note 168). Jongleurs were seen as politically and religiously subversive.  One medieval theologian described them as “ministers of Satan” and royalty issued decrees setting boundaries for acceptable topics of composition. “Though enjoying great liberty from political regulation and a variety of social conventions, jongleurs lived a marginal existence with little prospect for financial security.” (Carroll, 72 U. Cin. L. Rev. at 1446.)

Id.

Id.

Id. at 1446.

Id.

Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 430 (1984) (discussing how copyright protection was not necessary prior to the printing press because hand copying literary works was too costly and time consuming to pose a threat to authors’ interests). See also Marshall Leaffer, Protecting Author’s Rights in a Digital Age, 27 U. Tol. L. Rev. 1, 3 (1995) (examining history of copyright law); Yuri Hur, Note, Tasini v. New York Times: Ownership of Electronic Copyrights Rightfully Returned to Authors, 21 Loy. L.A. Ent. L.J. 65 (2000) (discussing development of copyright law).

Henry H. Perrit, Jr., New Architectures for Music: Law Should Get Out of the Way, 29 Hastings Comm. & Ent. L.J. 259 (Spring, 2007) at 261.

Id.

Id. at 277 (also noting “technologies for musical instruments changed the style of performance and created a niche for composers as distinct from singers). Printing technology changed the way music was disseminated, enlarging the possibilities of experiencing music for listeners beyond live performances. The development of the phonograph record influenced audience choice in favor of singers like Caruso, whose voice range matched the audio bandwidth capabilities of early phonographs.”)

Lewis Jones, “Roll Over Beethoven, Dig that Celtic Folk,” http://www.tradsong.org/Beethoven.pdf

Lewis Jones, p. 2.

Perritt, 29 Hastings Comm. & Ent. L.J. at 293-296.

Evan Swandy, “Decades later, Lou Reed’s ‘Metal Machine Music’ is re-discovered,” www.popmatters.com at http://www.chron.com/disp/story.mpl/ent/5307924.html. Some would dispute whether an album like Metal Machine Music is even “music”, as Carroll explains, “Music has no intrinsic definition. It is a cultural category consisting of any sounds that those in a society or culture designate as ‘music’ instead of ‘noise.” (72 U. Cin. L. Rev. at 1417).

Perritt, 29 Hastings Comm. & Ent. L.J. 259 (Spring, 2007)(“Major record labels exist to perform intermediation in music markets as they have been structured by past technologies. They represent organizational capital devoted to recruiting new talent, vetting new music, overseeing the recording process, promoting new products, and distributing product to consumers.”)

Id. See also, Brett J. Miller, The War Against Free Music: how the RIAA Should Stop Worrying and Learn to Love the MP3, 82 U. Det. Mercy L. Rev., 303, 312 “the industry has not embraced new MP3 technology even though it could “virtually eliminate…marketing costs” because of fear from competition from independent bands). (p. 321-322); Andrew C. Humes, The Day the Music Died: The RIAA Sues its Consumers, 38 Ind. L. Rev. 239, 239 (2005)(noting over 9000 lawsuits have been filed against downloaders by the music industry).

Perritt, 29 Hastings Comm. & Ent. L.J. 263.

Perritt at 262, citing Jessica Litman, Sharing and Stealing, 27 Hastings Comm. & Ent. L.J., 1, 2 (2004)(existing law was designed to facilitate a world in which music distributors needed a substantial capital investment in printing presses, trains or trucks, warehouses, broadcast towers or communication satellites).