Law in the Internet Society
Wow, I created a page! I'm trying to sort out my thoughts on the lecture of October 1, 2009, and I thought that Professor Moglen's comment in the GraspingTheNetTalk page would be a good starting point.

Professor Moglen said:

No one proposes forcing you to share anything you have created, whether valuable or mere rubbish. I have said, and will show the basis for concluding, two other things: (1) Under twenty-first century conditions, sharing cannot be prohibited with any degree of effectiveness; and (2) for digital goods with zero marginal cost, sharing either makes inherently superior goods, or results in inherently superior distribution, depending on the nature of the goods themselves, and thus over time shared goods produced or distributed anarchistically, without ownership, tend to outcompete and replace proprietary goods produced by capitalism. So the argument you are proposing to refute here on grounds of your superior prudence is irrelevant, and the congratulations you are awarding yourself for being smarter than I am are slightly premature.

My thoughts:

1. No one is forcing you to share...

- Does my sharing of my knowledge depend on the willingness of others to share their knowledge? If so, in an environment where no one is sharing, say in the production of new drugs or vaccines (assuming no sharing is done during the research process, but sharing is done during the patent application process), will I share (during the research process) in order to induce others to sharing? If so, will I share only in bits and pieces, and then stop sharing when others do not share? But if I behave this way, I am not truly after the solution to the problem I am researching. I suppose I would be interested in sharing only when I can no longer solve the problem on my own and am at the point when the collaboration of others is needed. If so, it does not do me any good to share just bits and pieces, because doing so will not help me find a solution to the problem I am researching. Plus, I don't really need to induce others to sharing their information. I want them to help me with my own problem! Why should I care if they don't share their stuff? I'm not concerned with their knowledge. In sharing my information therefore, I am motivated by purely selfish motives (I want someone to help me solve the problem I am researching) rather than altruistic reasons (since sharing a history of failed research results will be of limited use).

  • That's why the legal arrangements for commons are important. If you did the reading I answered your questions in it. If you have remaining questions, the thing to do would be to sharpen your understanding from the reading, and then show exactly where you need more information or more thorough spelling out of the argument. Trying to invent your way to an understanding based on a comment I made in the wiki is a much less efficient procedure than doing the reading, where I have tried to address this question---as it affects software---completely.

  • So far as pharmaceuticals are concerned, including but not limited to vaccines, the political economy of production is very complicated, and you don't understand it because you have been so thoroughly and relentlessly lied to about it that you don't know what you don't know and what you do think you know isn't knowledge. It is therefore the last, rather than the first problem to work through, which is why I didn't start with it. If you begin by trying to analyze an example which contains more complexity than the ones I have given, and which is about different areas of law interacting with different political economy, you will fail to understand that example, and you won't understand anything else. So try, just once, to do the work I actually assigned you on the basis that I might actually understand the subject and how to teach it better than you do, and you'll find yourself making more intellectual progress more quickly.

- when Professor Moglen says that "Under twenty-first century conditions, sharing cannot be prohibited with any degree of effectiveness," does he limit this to mean that the "physical" act of sharing cannot be prohibited effectively? Because if I am a junior chemist working in a drug company Fyser, I can be contractually bound not to share any information that I gain in my research. I can be dismissed from work if I violate this, and I can be slapped with a suit. I will have that dismissal on my record permanently and whenever I apply for work, I will always be asked, "Why'd you leave Fyser?" and I'd say "Um, I was let go, for sharing information." So while the sharing of information/results/data cannot be prohibited with any degree of effectiveness, isn't it that the consequences of doing so can effectively prohibit someone from sharing this information?

  • I meant what I said, not what you think I might have been wrong if I said.

2. For digital goods with zero marginal cost, sharing either makes inherently superior goods...

- just to clarify, can we consider the formula of a drug of a vaccine a "digital good with zero marginal cost" (since it can be shared over Google docs for example). I thought that the course is "Law in the Information Society" but I think that doesn't exclude non-software goods which can still be digitized (since I think we can treat the course as "how should the laws of society change, given that we now live in an information society; that the world as we knew it has ended?")

  • Stop worrying about pharma. Worry about the cases I gave you enough information to understand: software and---when people have actually applied themselves to learning about software---music. Then we can talk about video, and after video we can talk about pharma.

3. ...tend to outcompete and replace proprietary goods produced by capitalism.

- but currently, in producing drugs, we still need to rely on capitalism (say, Fyser company) to provide funds to test the drugs? How does Professor Moglen see this changing? I am not aware of the costs involved in producing software, but my thinking is that it costs more to create a new drug than a new software? And will drugs created under theory of anarchic production (no one owns the means of production) be allowed in the market, where liability cannot be pinned down on one single responsible person (e.g. Fyser)? Or will anarchic production lead to each and every person involved in the production process to be liable, where a cause of action for liability arises? If so, will fear of being held responsible for liability deter persons working in the drug industry from adopting the theory of anarchic production?

  • So these are questions that illustrate the greater political economy complexity of pharma. Indeed you don't know, because everything you think you do know is wrong. But it would be simpler to ask a teacher how to learn this complex material than trying to prove that the teacher doesn't understand the basics, and then make up the subject for yourself, which is an absurd procedure you and others should stop trying to perform.

    • Thanks for this, professor. I thought that we could just jump around the different IPs straight from the discussion on software. I look forward to the discussion on patents (but I will need to study the paper Anarchist Triumphant before moving forward). Will we discuss trademarks as well? Or are trademarks not really relevant, since trademarks are usually involved in the production of goods that involve marginal costs?

-- AllanOng - 04 Oct 2009

Thanks for your thoughts, Allan.

re: "Does my sharing of my knowledge depend on the willingness of others to share their knowledge?", I think the answer to this is mostly "it depends." Some people might share only if they will receive something in return; others, however, will be glad to be the "first sharer." So in short, sharing will happen even though some prefer not to share, or so the theory goes. The real answer to your question is an empirical one: do we have any evidence people will share? I think we do. Whatever the motivations are, it does seem to be in the nature of people to create and share their creations. It seems that is your observation as well, but perhaps I misread your commentary.

As for the second portion of 1., I agree with your general observation that even if you cannot stop the occurrence of X completely you might still be able to affect the frequency of X's occurrence. It's a separate question of whether you should affect X's frequency, and that question should take into account how effective your anti-X method is and also consider the method's societal/monetary/etc. costs. I believe in the coming weeks we'll read more about the argument that you cannot stop sharing, and also that we will address further the costs of the current anti-sharing model. I wouldn't worry about the argument's outcome just yet since we haven't finished reading/considering all of the argument's foundations.

  • I meant, that under 21st century conditions you cannot affect either the occurrence or frequency of sharing anything that large numbers of people have and want to share. No one has shown why that proposition is wrong. Indeed, the facts are in and that proposition is demonstrably correct.

As for item 3, it reminds me of the question of fixed costs. I also share an interest in the question of fixed costs.

  • That would actually be the non-question of fixed costs.

-- BrianS - 05 Oct 2009

Hey Brian,

Thanks for sharing your thoughts on my ideas. I just found out that the TWiki is pretty nifty, because the conversation continues after class. The bad thing about it is, it's possible to be so engrossed on the LITIS TWiki all the time (unlike Securities class where there is no TWiki, haha).

-- AllanOng - 06 Oct 2009

It is pointless to continue to discuss incentives to share, willingness to share, etc. Professor Moglen’s creatively named “Metaphorical Corollary to Faraday’s Law” describes a fact of life. In a large interconnected community, people will share information and this process will create free functional goods that are superior to proprietary goods. Since many examples we have discussed in class have involved software, I wanted to provide a simplistic example of anarchist production at work in the literary world.

Whenever a person walks into a Gamestop and purchases a new video game, the clerk will ask them if they want to purchase a strategy guide, which provides helpful tips and tricks regarding how to play the game. There is, however, no reason to ever purchase a proprietary strategy guide because multiple websites enable gamers to come together and create free strategy guides. Though creating a guide is a long tedious process if done through proprietary means, a community can create one efficiently even for an immense game.

One can speculate about why a person would bother logging onto a website and taking the time to post answers to imaginary problems, which he has paid $60 to have the privilege of solving in a fictional world. The psychological motivations behind such behavior may be many and varied, but they are largely irrelevant. This sort of behavior is now a fact of life.

-- StephenClarke - 22 Oct 2009

I agree with Stephen’s comment. Taking a slightly different tangent with this point, does this (and Harry’s example of GIMP from class) touch on a distinction that Professor Moglen was speaking of in class? Assuming anarchist functional goods are made better and anarchist aesthetic goods are distributed more efficiently (which I think is right), why aren’t anarchist functional goods distributed more efficiently as well?

At this point I think they’re not. I can only speak from personal experience, but I never knew that there were functionally better options to photoshop (GIMP) or cheatguides (mycheats). I am struggling to understand why this is. In truth, I’ve never searched for these alternatives and I’m sure that with a few simple Google searches I’m sure I would have found these superior options. But I think there is something to an information/advertising/branding difference between anarchist and capitalist products in alerting people to what the alternatives are. Perhaps with some priming or habituation to the internet, people will understand that better functional options are available on the internet (which in turn will make these options distributed more efficiently), but at least from my experience, it doesn’t seem we’re there yet. So, am I making a proper distinction between these two types of goods? I can’t think of a legitimate reason why online, superior anarchist functional goods should not be distributed better than capitalist produced goods, except for that capitalist products have an advertising budget that gets information, and cost, passed to the consumer. Am I conceiving of this difference correctly and is that why Prof. Moglen distinguishes the benefits of anarchist functional and aesthetic products?

-- BrendanMulligan - 22 Oct 2009

Capitalism has the wonderful inherent function of offering great monetary rewards to those people who can satisfy the demands of the most people for the lowest price (WalMart? , BestBuy? , Blue Nile, Amazon). Capitalism is not necessarily in conflict with anarchic production. Sometimes people share (as in the case of coders and game strategy writers) and sometimes people do not share or at least not effectively (as evidenced by the lack of sufficient advertising for these superior anarchic functional goods). To the extent that people do not willingly share (which hopefully is a smaller and smaller extent as people learn to harness the power of sharing), capitalism can hopefully step in to offer monetary rewards for people to perform the functions that are most in demand.

-- StevenWu - 22 Oct 2009

Responding to Brendan’s comments, I think it is important to understand the distinction between “information/advertising/branding” a.k.a. marketing and distribution. Corporate marketing ensures that you learn about proprietary products before you ever need them. Marketing does not, however, put the product into the consumer’s hand. It is not a means of distribution. Since many goods produced through anarchist means do not have the support of a robust marketing department, most people will not learn about them until they need them and seek them out. When people seek out functional goods that provide useful information, search engines become a way for producers to distribute these goods without marketing. For example, no one needed to sell me this solution to a problem I encountered for the first time over the summer.

-- StephenClarke - 22 Oct 2009

Thanks, Steven. I was using the phrase "capitalist produced goods" as a foil to anarchist produced goods, but I think that is an important point.

My previous comment was a little rambling, so basically my question is this: when Prof. Moglen said that (1) anarchist aesthetic goods are distributed more efficiently and (2) anarchist functional goods are superior, is it fair to say that anarchist functional goods are not necessarily distributed more efficiently? (As mentioned in class, an aesthetic goods cannot be superior/inferior to another.) If so, I am trying to understand why not--both are zero marginal cost goods so it seems like the same rules should apply. (Also, it's quite possible that I'm making more of this than was intended and ignoring the clear implication that anarchist functional goods are superior AND distributed more efficiently for the zero marginal cost reason above.)

Edit: Stephen, your point's well taken. I was working from a starting point that anarchist functional goods are not distributed more efficiently than non-anarchist functional goods, because otherwise that seemed worth mention, at least as much as better distribution of aesthetic goods did. I was attempting to supplant an explanation for this and the best I could come up with was stretching the definition of distribution to include getting something the consumer wants into their hands. Therefore if the consumer doesn't know it's available because of lack of promotion or otherwise, they won't know they want it and distribution will not necessarily be better for anarchist goods. Anyway, I may have missed this in class before, but I think it's now pretty clear that my initial premise was wrong, so most of my points are mooted.

-- BrendanMulligan - 22 Oct 2009

I think you make good points even if the underlying distinction (distribution vs. marketing) is as you believe mistaken. It's a fair question to ask: why don't we know more about anarchist produced functional goods? But I think you also answered your own question, as Stephen also addressed re: looking for his bee problem solution: we didn't know about the goods because we didn't look for them. But as you seem to already know, and as we've covered in class, once you look they are easily found, i.e. easily distributed. So I think your question was still valuable to consider.

-- BrianS - 23 Oct 2009

I respectfully disagree in part with the unqualified conclusion that anarchism would produce better functional goods—across the board—than capitalist produced proprietary goods supported by intellectual property rights.

Both the conclusion that anarchism produces better functional goods and the conclusion that anarchism produces a better distribution system for non-functional goods seem to rely on the premise that people will share without monetary rewards for such sharing and in the context of functional goods this sharing and contribution to the function of the product results in a better product. Because I am not convinced that people will share without monetary incentive with respect to all types of functional goods, however, I also must respectfully disagree with the conclusion that human motivation to share is irrelevant to the analysis.

Let me first start with the part with which I agree (or at least do not disagree for purposes of this post). Contrary to my belief a couple of months ago, through the assigned readings and class discussion I may be able to accept that anarchism may produce better functional goods in some subject areas—essentially areas that people enjoy working on and receive intrinsic rewards from doing so. For example, while I have no experience with Linux I can readily accept that Linux is a better operating system than Windows. I was persuaded by the logic that thousands of contributors to an open source code product are necessarily going to produce a better product than a limited number of contributors for a closed proprietary software product.

Software, however, is a form of expression and many people apparently take satisfaction from developing and improving upon such—they simply enjoy working on software. Therefore, the motivation to share is relevant to the analysis because with regard to software sharing is driven at least in part by self fulfillment and intrinsic non-monetary regards—making monetary rewards unnecessary to produce the sharing and in turn better product.

As a footnote, I also think that it is worth observing that in an anarchist system the motivation to share, even with respect to software, may decline. It seems that a large part of the intrinsic motivation to share software comes as a form of rebellion—the desire to figuratively poke Steve Jobs and Bill Gates in the eye with a sharp stick. If there was no proprietary software and nothing to compete with I believe that the sharing and development of free software may decrease.

Regardless, in areas other than software there is likely less intrinsic motivation to share—leaving monetary gain as the primary motivating factor and absent monetary incentive, innovation would probably decrease.

-- BrettJohnson - 24 Oct 2009

  • You're still practicing research-free bloviating. Brett, and it's still inadequate work for that reason and that reason alone. If you look, for example, at the final report of Rishab Ghosh's FLOSS Project to the European Commission, you will find extensive survey research documenting why people say they make free software. In a rigorously-analyzed survey of a large sample of developers, the reasons given most often are (1) to learn and develop new skills; (2) to share knowledge and skills; (3) to participate in a new form of cooperation; (4) because software should not be a proprietary good; and (5) to solve a problem that could not be solved with proprietary software. "To limit the power of large software companies" was in eleventh place, only a little bit above "to get a reputation in the free software/open source community." The only less given reasons include "to make money," and "I don't know." In short, the stuff you made up was completely wrong, That's not the most important point, however. What really matters is that you still don't seem to recognize that you can't go around making shit up. You behave as though "I respectfully disagree" is some sort of magic incantation that frees you from responsibility for the truth of your statements. The question isn't whether you are respectful or disrespectful, but whether you are observing minimum academic standards.

  • Software is not an exception of some mysterious kind. Your assertion at this point is no longer merely ignorant; it is, as I have mentioned before, an irresponsible refusal to meet the evidence. Wikipedia and other forms of free reference publication, Open Street Maps and the other forms of free geospatial information, and free journalism have all been discussed at this point. If you are going to challenge either that free forms of functional digital goods production drive out unfree forms, or that they are superior at equilibrium to unfree forms, you can't do it by mere claim: you must meet the available evidence, including but not limited to the facts I have already introduced, and show why the interpretation I advance is wrong. You cannot assert the truth of astrology in an astronomy class, or the truth of creationism in an evolutionary theory seminar. If you do you will fail. In law school, you cannot make up data. You cannot simply ignore inconvenient evidence. You must observe both the systemic requirements of academic honesty and the lawyer's ethical obligations of candor and truthfulness. If you don't, you will fail. I will not say this again.

  • The real problem you are having, is not, in my view, that you are ignorant of the rules of academic honesty, much less that you are incapable of being an ethical practitioner. Under ordinary circumstances, you are undoubtedly a responsible student and will surely be an honorable counselor. But you are suffering heavily from the repression of cognitive dissonance. Some stuff you have believed is wrong. Information tending to show that stuff we believe is wrong causes us discomfort, which psychologists call "cognitive dissonance." So we tend unconsciously to repress such information, and the more firmly we believe something, the more we repress adverse evidence, in order to avoid the discomfort involved in reexamining basic premises. Scientists and lawyers are taught to avoid prejudgment, and good ones cultivate a variety of mental and professional disciplines to limit their tendency to repress cognitive awareness that conflicts with previous beliefs. You have not developed the necessary habits, You don't deal with the evidence, not because you're unprincipled enough or foolish enough to think you can get away with it, but because you don't actually admit to yourself that the evidence is there.

I find it ironic in a class with a central theme of the free exchange of ideas and information that if I disagree with you I will fail. From this point forward my official position on everything related to this class will align with your beliefs.

-- BrettJohnson - 25 Oct 2009


I respond to this post with some hesitation. What motivates me to nevertheless post is a hope that these words are helpful.

I understand you are frustrated, but I believe that you actually would be shooting yourself in the foot if you uncritically aligned your beliefs to Professor Moglen's. It is my impression that the gauntlet as laid down is not a challenge to agree, but to defend disagreement. I know that you are trying to do so; I would read the prior comments to be a request to do so more empirically. I have spoken with you enough to know that you are a responsible and intelligent student. I am confident you can meet the challenge.

-- BrianS - 27 Oct 2009



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