Some More Play (Symposium on Configuring the Networked Self)

I remember meeting Julie Cohen for the first time. It was right round the time she was writing “Lochner in Cyberspace.” We were hanging during one of the breaks at the Berkman Center’s first really big conference on the Internet & Society, eating ice cream cones with Mark Lemley.

If you had told me then that the (then) University of Pittsburgh, Professor of Law would one day turn her academic focus to many of Nietzsche’s preoccupations in La Gaya Scienza, I am not sure that I would have believed you. The Heraclitian privileging of becoming over being? Human maturity consisting in the seriousness of a child at play? Remaining faithful to the body? What does any of that have to do with digital rights management or a right to be anonymous?

In many important respects, her new book tells us.

I must confess that one of the reasons that I have been lurking rather than blogging this week is that the debate this book raises on one level—the one that Anita Allen so convincingly takes on—is something I find quite paralyzing.  This has become quite existential for me in a way that Julie probably had not intended. Am I reluctant liberal? How many precepts must give way before I am forced to call myself a postie? (Not that there is anything wrong with it!) And, as Wittgenstein liked to say (in another context): ‘Why, would it be unthinkable that I should stay in the saddle however much the facts bucked?

As you will see, I am still stuck on the question about whether we need a new ride.

Anita probably best characterized my own approach to date in her description of what she sees as one of Julie’s central contributions: “a patchwork quilt of the better elements of ancient, medieval, modern, and contemporary liberal and post-modern theories.”

But is that good enough, or do we need some kind of unified field theory?

One of the things I find so fun about Julie’s book is her masterful attempt to provide some foundations for the latter. I have for years been puzzled about the complex relationship between intellectual property and privacy. And Julie really helps us think not only about how to sew a new mentality but also about how to unravel some of the knots. For me, the hard part is in knowing exactly how much of the liberal/essentialist framework one needs to give up in order to truly, madly, deeply adopt her core suggestions. Or, perhaps equally challenging, to figure out how some of her core suggestions might play out in a (largely liberal) legal framework.

In an attempt to address the latter, I am inspired by the super thoughtful suggestions of Val Steeves buried within the comments under the insightful post by Ted Striphas. In answering Ted’s question posed to Julie (how does a court of law adjudicate play?), Val astutely suggests that, “Perhaps legislators and courts can directly address the boundaries required for play rather than play itself.” The example Val offers (about how Canadian law deals with kids’ online privacy) provides what Julie says “gets at how one might begin to think about operationalizing the “semantic discontinuity” principle — by addressing boundaries rather than play itself.” (Call me crazy but that strategy sounds very liberal-minded to me!)

I would like to try to offer a second example of how thinking about the boundaries rather than play itself might be useful in the copyright and privacy policy domains. My example stems from testimony that I provided a few years ago to the Canadian Government regarding our proposed copyright reform legislation. I argued, as many US scholars have also argued, that we need protection from and not for DRM. Like Julie, I see DRM as a kind of nexus of copyright and privacy concerns. But I have always felt that framing DRM as merely a copyright/privacy issue (as so many of my Canadian colleagues seem to do) misses the mark. In a nascent lecture I gave on the subject at NYU a few years back (a podcast of which I believe Julie listened to) I suggested that the deeper problem with DRM was in its attempt to “automate virtue.” (Yes, philosophers, I am aware of the oxymoron; that was my point. If you are interested, I subsequently published the argument here)

If I am not mistaken, like Val’s example mentioned above, my proposed regulatory approach to DRM might also get at how one could begin to think about operationalizing the “semantic discontinuity” principle — by addressing the boundaries for play rather than play itself.

Very briefly, I argued that a generalized and unimpeded use of digital locks, further protected by the force of anti-circumvention law, threatens not merely legal rights and freedoms but also threatens to significantly impair our intellectual and moral development by undermining the very capacities necessary for human flourishing. Like Julie (like Aristotle, for that matter), I believe that it is the play of everyday practice and the play of circumstances that underlie our (intellectual and moral) development. I also believe that, in the case of DRM, it is the boundaries of play rather than any particular form of it that needs legal protection.

To illustrate, I likened the moral space that DRM constrains to the cars on my favorite ride as a kid—Walt Disney’s Autopia. This enor­mous and amazing “highway” permitted wide-eyed seven-year-olds to “drive” unaccompanied by an adult. It was of course made possible by virtue of the hidden fact that the go-carts were secured by a railing affixed to the roadway. Although kids could speed up or slow down a little bit, the cart would automatically steer itself along the seemingly endless high­way, banking on corners and holding steady down the straightaways. With the usual magic of Disney, the technological infrastructure that made this possible was rendered invisible to the kids on the ride; they believed that they were actually driving! Through the illusion of technology, Walt had figured out how to build the literal instantiation of Thoreau’s famous observation that, “we do not ride on the railroad; it rides upon us.”

In fact, you could be the world’s worst driver—veering left then suddenly right of centre, but the hidden rail would always guides you back into the middle. Sort of like some souped-up, automated version of the Aristotelian “golden mean.” But, unlike training wheels on a bi­cycle, Autopia’s technological infrastructure does not really train kids to learn how to drive. In fact it un-trains them by removing the possibility of the play of everyday practice (not to mention the play of circumstances). Although I had no idea of this as a seven year-old sitting behind the wheel, Autopia’s carts are impossible to crash. What I realized, years later, is that Autopia has only passengers, not drivers. On Walt Disney’s highway, driving is not permitted. Neither is “play” in the morally relevant sense.

Likewise, with today’s networked DRM. Its seamlessness precludes the necessary space for many important kinds of play. And yet these networked spaces are the playgrounds of our intellectual and moral development. As Aristotle might have asked: in a networked space perfectly constrained by DRM, how could one ever cultivate phronesis without protecting the boundaries of permission to venture into the realm of excess or defect?

To me, this kind of account offers a much richer and more persuasive explanation of the problem of DRM than simply articulating how it abrogates freedom of expression or reasonable expectations of privacy. In this case, one might say that the concept of semantic discontinuity suggests to policy makers and legislators that a state sanctioned, unimpeded and widespread digital lock strategy such as the one adopted under the DMCA or the recently proposed Canadian copyright law reform bill should not be implemented because, if universalized, such a strategy would undermine human flourishing. In the alternative, if anti-circ provisions are going to be part of any copyright reform effort, the boundaries of play must be adequately protected through carefully tailored counter-measures.

I will be interested to see if Julie thinks that this example inches towards the kind of work that “the play of everyday practice” and “semantic discontinuity” prescribe.

However, at this now late hour, I remain puzzled about whether we will be forced to use machetes not scalpels, as Paul Ohm very playfully suggests. And even more so about whether we need to stay on or jump off of the (post)liberal bandwagon, no matter how much the facts buck… or whether that is even up for grabs.



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5 Responses

  1. Julie Cohen says:

    Well, if you had told me the boyish Canadian ice cream-eater (who looked about 15 years old) would become the leading force behind The Identity Trail, I’m not sure I would have believed you, either!

    I remember that talk; I remember thinking the “automation of virtue” formulation was important (see also my own “Pervasively Distributed Copyright Enforcement” and Dan Burk & Tarleton Gillespie’s essay in a similar vein) but that I didn’t find the Aristotelian virtue framework entirely congenial – not, at least, without hybridizing it with the “posts.” Leaving the “post” question out of it, though, I do think the example entirely apt re the kind of work that play and semantic discontinuity prescribe. As I said in my comment on Val’s post, we should look to Canada for inspiration more often.

  2. Frank Pasquale says:

    Ian, I really like the point on not “automating virtue.” I can just imagine Radiohead’s “Fitter, Happier, More Productive” as the theme song of a perfectly controlled net. The story of Jonathan Coulton backs up your point. In short, he makes his songs available without DRM, but really encourages his fans to pay. He mocked the MegaUpload raid with a sarcastic tweet along the lines of: “Wow, after that site’s gone, the money’s just rolling in, isn’t it?” Fuller versions of his story here:

    Coulton succeeded, not by controlling and monitoring his audience, but by creating a community. He’s made a decent living doing so, though I imagine he’d welcome more traditional modes of compulsory licensing and royalties if his creative energies ebb.

  3. Paul Ohm says:

    Ian, I love the Autopia metaphor, but perhaps I’m biased having spent part of my youth living a mile from the front gates of Disneyland, my summer playground.

    Your thoughts about driving remind me of what James Grimmelmann and I had to say in response to Zittrain’s book (, that a system can only provide the opportunity for generativity if it constrains some choices while enabling others. Systems should not be maximally generative, they should be generative enough.

    In the same way, I can imagine architectures with such wide gaps that they begin to constrain rather than enable play. To extend your metaphor, I don’t enjoy trying to merge onto the 405 Freeway in Santa Monica, because of the number of lanes, interminable traffic, and high percentage of aggressive drivers. This is probablya better form of “driving” than Autopia, but it seems like too much. To better engage in the “play” of driving, I’d prefer smaller roads and higher speeds, and I think I’d even enjoy circling around an “artifical” racetrack. So maybe it’s not just the size and location of the gap that encourages play; maybe we need to consider lots of different variables in addition.

  4. Julie Cohen says:

    Having read this again, I can’t resist noting Google’s recent venture: the driverless car.

    So is this just Autopia dressed up in sexy packaging – an iPad for the open road? I’m conflicted here. I suspect many people will resist this innovation, precisely because they experience driving as a form of play. And since I, like Paul, grew up driving on Southern California’s freeways (though the Pasadena Freeway was and is my playground of choice), I can relate. But I also recognize important questions about the wisdom of privileging driving and car ownership on an increasingly hot and crowded planet, so perhaps this is an area in which the preferred forms of play need to evolve. Which is ok, I guess – the bigger concern is that the ability to play in the spaces where one lives doesn’t evolve out of existence.

  5. Deven Desai says:


    Side note: I always thought becoming was a Dilthey/Heidegger issue more than Nietzsche.

    On a more focused note: Autopia was also in my backyard by L.A. terms. I loved it because I could play. It had enough give that I could let the car slam from side to side rather than avoiding the middle track, I could slow down and mess with my brother behind me, and I would try and ram his car if in front; for a time. Disney has altered the cars so that all of the above are more difficult to do. The track is wider, the cars slower, and the bumper car aspect is discouraged.

    So was there a play that was suitable for the venue? Do calls for child safety require some sort of training wheels for the Net? (I have argued for at least Web education a la driver’s ed in older posts). And when/where does society choose boundaries or what sorts of play to allow or not? Paul’s claim for generative enough begs this question.

    I think Julie’s book calls out the tensions about which and what boundary ought to be in place. In addition, I think that there is some sense that the current system fails to account for play by many within the system.

    In other words, I think that so far the boundaries are designed for large actors to play. It may be that we need to look at rules for a large number of small actors. So perhaps I am asking whether the liberal system is capable of such a project.