So Bekir Gur and I are working on this paper which applies Habermas’ critique of technology to copyright law and Lessig’s notion of “code as law.” I was going to send it to a friend to review, and then realized I should give it to the blogosphere to review! So, if you have trouble sleeping some night soon, take a look.
Adorno and Horkheimer’s searching critique of modernity, Dialectic of Enlightenment, is a product of their wartime exile in the United States. Their depressing assessment begins: “Enlightenment, understood in the widest sense as the advance of thought, has always aimed at liberating human beings from fear and installing them as masters. Yet the wholly enlightened earth is radiant with triumphant calamity” (Horkheimer and Adorno, 2002, p. 1). This sentiment has been echoed elsewhere:
How can the progress of modern science and medicine and industry promise to liberate people from ignorance, disease, and brutal, mind-numbing work, yet help create a world where people willingly swallow fascist ideology, knowingly practice deliberate genocide, and energetically develop lethal weapons of mass destruction? (Zuidervaart, 2003).
Adorno and Horkheimer answer these questions by asserting that reason itself has become irrational.
Even casual observation reveals that this irrationality reaches into many spheres of our everyday life. Lessig, Litman, Samuelson, and others have forcefully argued that copyright law has become irrational in books with titles like How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. In this paper we review Habermas’ critique of technology and analyze problems with modern copyright law in this light to provide a broader understanding of the problems surrounding copyright law in a digital context.
The Colonization of Lifeworld by System
According to Habermas’ account, the problem with technological modernization has little to do with technology itself. Rather, the problem lies in the way in which technology has risen to the status of ideology . In “On the Notion of Technology as Ideology”, Pinnin (1995, p. 46) elaborates on the Habermasian account of the problem with technology:
To see technology as an ideology is to see an extensive social reliance on technology and the extensive “mediating” influence of technology in daily life as already embodying some sort of “false consciousness” …. And this means: such reliance reaches a point where what ought to be understood as contingent, an option among others, open to political discussion, is instead falsely understood as necessary (i.e. the relevant options are not rejected; they are noted as credible options; hence the “false consciousness”); what serves particular interest seen; without reflection; as of universal interest; what is contingent, historical experience is regarded as natural; what ought to be part is experienced as the whole, an so on.
Technology becomes the only acceptable instrumental rationality, de-legitimating (as irresolvable and needlessly subjective) genuinely practical or political questions (Pippin, 1995, p. 55). Using system-theoretic terms, Habermas makes a distinction between system (i.e., media-regulated rational institutions, such as markets and administrations) and lifeworld (i.e., the sphere of everyday communicative interactions including family life and education). For Habermas, the central pathology of modern societies is the colonization of lifeworld by system (Feenberg, 1996; Habermas, 1989).
Habermas argues that the public sphere of democratic societies presupposes a commitment by citizens to participate in rational argument. To the extent that we technicize the public sphere by transferring its functions to experts we eliminate opportunities for participation, destroying the very meaning of democracy (Feenberg, 2002, p. 8-9). Habermas formulated the relation between technical progress and social lifeworld with reference to political decision-making:
In what follows we shall understand “technology” to mean scientifically rationalized control of objectified processes. It refers to the system in which research and technology are coupled with feedback from economy and administration. We shall understand “democracy” to mean the institutionally secured forms of general and public communication that deal with the practical question of how men can and want to live under the objective conditions of their ever-expanding power of control. Our problem can then be stated as one of the relation of technology and democracy: how can the power of technical control be brought within the range of the consensus of acting and transacting citizens? (Habermas, 1970, p. 57)
For Habermas, technology is more than accomplishing our ends; it is also organizing society and subordinating its members (us) to a technocratic order (Feenberg, 1999, p. 17). In other words, “The reified models of sciences migrate into the sociocultural lifeworld and gain objective power over the latter’s self-understanding. The ideological nucleus of this consciousness is the elimination of the distinction between the practical and the technical” (Habermas, 1970, p. 113). Feenberg provides an example of the way in which system colonizes lifeworld:
[T]he medical offensive against breast feeding in the 1930s and 1940s. In this instance, an aspect of family life was technologized in the mistaken belief that formula was healthier than breast milk. This technical mediation complicated infant care unnecessarily while opening huge markets. More recently, the widespread use of formula in countries without pure water supplies spread infant diarrhea which in turn required medical treatment, further intruding technology on infant care. This is a clearly pathological intervention of technology into the lifeworld.
The problem occurs when technology invades and occupies the sphere of everyday practical action.
Law Becomes Technology, Technology Becomes Law
In the Habermasian account law is also a system, as it regulates lifeworld functions (e.g., through welfare programs or family-related legislation). The encroachment of law into lifeworld also has pathological consequences: law becomes an instrument of colonization of lifeworld by system; law becomes technology (Feenberg 1999, p. 172-3).
In Code and Other Laws of Cyberspace, Lessig (1999) demonstrates how specifically digital technology is an extremely powerful colonizing force. Specifically, Lessig reveals the mechanism by which corporations have empowered themselves to restrict access to the artifacts of culture, and thereby restrict opportunities for participation by others in the recreation of culture, forcibly demoting those participators into mere consumers. Where law once provided partial protection of intellectual property, balanced against “consumer” rights, in a world of digital content software often protects more completely:
The point should be obvious: when intellectual property is protected by code, nothing requires that the same balance be struck. Nothing requires the owner to grant the right of fair use. She might, just as a bookstore allows individuals to browse for free, but she might not. Whether she grants this right depends on whether it profits her. Fair use becomes subject to private gain (p. 135).
When the power to protect perfectly in code is combined with legislation like the Digital Millennium Copyright Act (DMCA), working around the access protections built into digital-world code breaks material-world law. In other words, corporations successfully sought legislation making it illegal for consumers to engage in uses of cultural artifacts other than those they specify. And why do individuals not protest against such inappropriate sorties of system into lifeworld? Zizek (1989) recalls the traditional definition of ideology from Marx’s Das Kapital, “they do not know it, but they are doing it,” and argues that something more sinister than mere naïveté is at work here:
Does this concept of ideology as a naive consciousness still apply to today’s world? Is it still operating today? In the Critique of Cynical Reason…Sloterdijk puts forward the thesis that ideology’s dominant mode of functioning is cynical, which renders impossible—or, more precisely, vain—the classic critical-ideological procedure. The cynical subject is quite aware of the distance between the ideological mask and the social reality, but he none the less [sic] still insists upon the mask. The formula, as proposed by Sloterdijk, would then be: ‘they know very well what they are doing, but still, they are doing it’. Cynical reason is no longer naïve, but is a paradox of an enlightened false consciousness: one knows the falsehood very well, one is well aware of a particular interest hidden behind an ideological universality, but still one does not renounce it.
This same mechanism which prevents people from responding vocally to new legislation allows legislators give serious consideration to such bills in the first place. They know very well what corporations are asking for, and they pass the bills anyway.
This legal arrangement promoted software engineers to the status of de facto legislators. Because it is illegal to subvert portions of their code, restrictions they design into the code literally become law. What corporations permit is reified in software code, providing for completely objective determinations as to whether consumers are complying with their desires or not. If an individual circumvents the permissions proffered by the software, they have broken the law. Fortunately for the producers, the permissions granted by their software need bear no likeness to the access to cultural products people historically enjoyed, and is subject to no legislative oversight. As in Feenberg’s breastfeeding example, the clear function of this “pathological intervention of technology into the lifeworld” is to open and protect markets.
Just as system colonizes and dominates lifeworld in Habermas’ account, law and code colonize and dominate individuals’ opportunity to participate in the recreation of culture in Lessig’s account: “Code displaces the balance in copyright law and doctrines such as fair use” (1999, p. 135). Code becomes ideology in the cynical sense.
This most recent intrusion of system into lifeworld results from the growing ubiquity of digital technology in the lifeworld. It is made possible because the artifacts and expressions of culture are increasingly represented in digital forms, and participation in modern culture is therefore increasingly gated by technologies providing access to digital resources. The same digital migration that to date has empowered corporations also presents several problems for those who would influence economies and administrations in order to open and control markets.
First, corporations historically controlled markets by controlling the means of production. The specialized equipment necessary to produce a variety of cultural products were historically so expensive they were out of reach of the average individual; film, music, books, and other forms of cultural production were the province of big business. However, in a schizophrenic inability to commit, federal governments are hard at work making the new digital means of reproducing culture equally and freely available to all. Even while enacting the DMCA and strongly encouraging other countries to adopt closely aligned legislation designed specifically to restrict individuals abilities to participate in recreating culture, federally funded efforts at bridging the “digital divide” place the means of reproducing culture in public schools, libraries, community centers, and other openly accessible locations. In addition to being available in schools, basic training on how to use computers is frequently freely available through community programs. As record and movie industry lawsuits demonstrate, controlling the means of production is no longer a viable option for controlling the market in cultural goods.
Second, the products of culture are no longer scarce. Because these digital artifacts can be copied perfectly at no cost and transmitted world-wide at practically no cost, old market rules of supply and demand cease to apply, or at best apply in very different ways. If the old corporations are to continue controlling the old markets, the effects of the digital migration must be mitigated so that the old economy rules continue to apply. Much of the effort spent on designing software for the distribution of cultural goods is spent on artificially making the artifacts scarce by introducing a number of mechanisms that restrict their duplication and transmission. However, digital rights management and other related technologies see limited success because they are so easily defeated and the tools to defeat them are so freely and easily disseminated. Because they are technologically incapable of controlling the market of reproduction and distribution of cultural artifacts, laws are passed to make circumventing the feeble code illegal. Again, they these industries know what they are doing, but they do it anyway. They know that the rules of supply and demand apply in vastly different ways to nonrivalrous resources, but they continue to wish (and indirectly legislate) that the old rules still apply.
Turning the Tables
For Habermas, the process of technicization of the lifeworld is reversible through reasserting the role of communication (Feenberg, 1999, p. 7). Habermas’ goal is the restoration of a healthy process of social communication capable of providing direction to market and administration, and especially capable of limiting their influence (Feenberg, 1999, p. 16). We believe that the lifeworld’s colonization of system is not only reversible to its original state, but that communications technologies may actually enable the lifeworld to exert significant influence on the larger system.
For example, prior to the 2004 Presidential Election in the United States, several memos that reflected very poorly on presidential incumbent George W. Bush came to light, published on air and on the Internet by CBS News. (For a detailed timeline of these events, see Miller (2004).) Almost immediately after their publication, several individuals used their weblogs to question the credibility of the documents. They used the communications abilities afforded by the technology to share insights, exchange information, and rally against what they believed to be either the purposive deception or blatant incompetence of CBS News. This popular rejection of the documents caught the interest of corporate media like the Washington Post. Fueled by the passion and research of individuals from outside the “system,” several websites and corporate media outlets continued to demand answers regarding the authenticity of the documents. Eventually, the giant CBS News was forced to issue a formal apology, and respected news anchor Dan Rather was forced out of his position with CBS. Thus we see an example of the lifeworld’s ability to provide direction to the system.
The Creative Commons project at Stanford Law School uses technology to turn the tables on the system in another way.
Creative Commons has developed a Web application that helps people dedicate their creative works to the public domain — or retain their copyright while licensing them as free for certain uses, on certain conditions… we have also developed metadata that can be used to associate creative works with their public domain or license status in a machine-readable way. We hope this will enable people to use our search application and other online applications to find, for example, photographs that are free to use provided that the original photographer is credited, or songs that may be copied, distributed, or sampled with no restrictions whatsoever. We hope that the ease of use fostered by machine- readable licenses will further reduce barriers to creativity (CC, 2005).
The same rights expression technology corporations and copyright holders use to restrict average individuals’ ability to participate in the reuse and recreation of cultural artifacts is put to the exactly opposite purpose by the Creative Commons project.
Feenberg summarizes the dominant form of technological rationality: “The dominant form of technological rationality is neither an ideology (an essentially discursive expression of class self-interest) nor is it a neutral reflection of natural laws. Rather, it stands at the intersection between ideology and technique where the two come together to control human beings and resources” (2002, p. 15). In this paper we have not criticized code itself. We are not rejecting technology. We are calling into question the intersection of economic instrumentalities and our legal system that allows code to become law – in Habermas’ terms, a process that allows system to colonize lifeworld.
Feenberg accuses Habermas of being “conformist” in that Habermas regarded technology as neutral. Early critical theorists of the Frankfurt School (e.g., Marcuse) rejected the neutrality of technology: “the values of a specific social system and the interests of its ruling classes are installed in the very design of rational procedures and machines even before these are assigned specific goals” (Feenberg, 2002, p. 14-5). The values and interests of both the corporate world and the Creative Commons are apparent in their design and utilization of legal procedures and technologies. Like Marcuse, we think new types of “democratic” instrumental reason may generate new technological designs that turn the tables on the system.
We follow these thinkers in rejecting the notion that technology is neutral. We believe the importance of Habermas’s analysis lies in the fact that the features of lifeworld have been treated as a sort of technology in modern capitalism. What other thinkers have seen as the end of ideology (i.e. “the draining away of over-all values and ideals in favor of pragmatic, technocratic government”), Habermas regards as the very core of what ideology is (Giddens, 1990, p. 134). We believe that Zizek’s application of Sloterdijk’s notion of cynical reason to ideology provides a powerful analytical lens for viewing the function of code as law in society. We reject the popular cynical view that says, “we know this state of affairs is wrong, but we accept it anyway.”
CC (2005). About Us | Creative Commons. Retreived on March 3, 2005 from http://creativecommons.org/about/history
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