Law in the Internet Society
I just read the article about "cooking-pot" markets, which happened to comment on my "altruism" critique (last paragraph), so I will go ahead and provide a block quote, followed by a response:

"The workings of this system of trade stem from the same motivation of "fun" present when Colin Needham developed the Internet Movies Database - which, built upon newsgroup discussions, is half-dynamic. It is Needham's need to "put back" into the Net after having "taken out" so much that drives most trade in dynamic resources. It is the cooking-pot market of a seemingly altruistic value-in-giving norm that drives the economy of interacting people.

If it occured in brickspace, my cooking-pot model would require fairly altruistic participants. A real tribal communal cooking-pot works on a pretty different model, of barter and division of labour (I provide the chicken, you the goat, she the berries, together we share the spiced stew). In our hypothetical tribe, however, people give what they have into the pot with no guarantee that they're getting a fair exchange, which smacks of altruism.

But on the Net, a cooking-pot market is far from altruistic, or it wouldn't work. This is thanks to the major cause for the erosion of value on the Internet - the problem of infinity [21]. Because it takes as much effort to distribute one copy of an original creation as a million - and because the costs are distributed across millions of people - you never lose from letting your product free in the cooking-pot, as long as you are compensated for its creation. You are not giving away something for nothing. You are giving away a million copies of something, for at least one copy of at least one other thing. Since those millions cost you nothing you lose nothing. Nor need there be a notional loss of potential earnings, because those million copies are not inherently valuable - the very fact of them being a million, and theoretically a billion or more - makes them worthless. Your effort is limited to creating one - the original - copy of your product. You are happy to receive something of value in exchange for that one creation."


The concept of altruism as it is used in the quote above is too narrow. What the author believes is not a prerequisite of participation in the cooking-pot is better described as "economic altruism," where economic loss "from letting your product free in the cooking-pot" does not inhibit the creator. Even if the creator/participant receives some alternative form of value, thus getting rid of the "altruism" requirement, there are a variety of other self-serving motivations that might inhibit a participant from letting his creation go free and multiply in the pot. Some people are inherently protective of their creations for a variety of reasons that to some may appear irrational. To overcome such a variety of "irrational" or narcissistic barriers would require altruism at much higher levels of social and emotional sophistication, far beyond the economic altruism that the author describes. Reputation, or "fun," as the author mentions, might not ever enter one's mental calculus.

  • This is true, but entirely irrelevant. It would be better to understand what Rishab is saying before deciding either that he's responding to some idea you've already had or that he's wrong and you know better.

-- JonathanBoyer - 24 Sep 2009

When considering incentives for inventions/creations, it is important to understand and accept that humans are rational in that they act in any given situation in a manner that they subjectively believe benefits them. This process involves a balancing of the costs and benefits of any given action and a choice of the action with the greatest perceived benefits compared to the costs. The perceived benefit can take many different forms.

As touched on by this post an action may appear altruistic in one sense, e.g., lack of immediate revenue generation but in fact may not be an altruistic action. For example, according to the reading for last week, the creator or Linux was apparently motivated by the idea of building his resume as much or more than benefiting society by the creation of free software.

  • Nothing about the preceding statements is true.

Consequently, he was not even acting altruistic in an economic sense, he was simply sacrificing short-term revenue in hope of generating more revenue at some point in the future—a similar choice to that which is made by law students.

Indeed, while I will concede that there may be not a measurable and statistical way to prove this assertion, from my life experience, I believe that humans, like other animals, are generally incapable of acting in a truly altruistic manner.

  • But there are measurable and statistical ways to prove that your view is wrong.

I suppose that I could make “Assumptions,” randomly assign them “Values” and present “Model Results” supporting my conclusion, as Terrence A. Maxwell apparently did in “Is Copyright Necessary?” but for now I will rely on my own observations and life experience for support of this conclusion. While humans act in a way that they subjectively perceive benefits them, some may value certain things more than others, and thus make different choices under the same circumstances. I believe, however, that even when a person does a purportedly altruistic act—he is driven by self interested considerations. Of course charities utilize this by acknowledging and publicly recognizing donors—creating an incentive to give money away—a purported altruistic act. If the person giving the money, however, is driven by the recognition that she will receive as a result of the economic donation—that is not an altruistic act—it is a rational act based on that person’s subjective belief at that time that the money that she gives is less valuable to her than the recognition that she will receive from the act. Even if a person chose to donate to a charity in an anonymous manner, I would still argue that is not an altruistic act. I believe that person is making that decision because he gets to experience a good feeling of being a noble person and that feeling is worth more to him than the money that he donates to the charity (which balancing of course varies depending upon, among other things the economic needs of the person at that time). Sometimes people are motivated to act in a seemingly altruistic way by a belief that they will be rewarded for that behavior by some higher power—in another life—in heaven, or however one wants to articulate it. There are many examples, but the foregoing examples illustrate my point.

The fact that human beings act rationally—

  • A fact? We are now more than a century past Freud, and you are offering this obviously false statement as a FACT?

or in other words in their subjectively determined best interest—not in an altruistic way—in any given situation does not mean that they are inherently immoral, unethical, or evil. Humans are animals and as with other animals evolution will quickly eliminate any truly altruistic propensities because a truly altruistic act by definition does not benefit and may harm the actor—causing that actor to survive less frequently and to pass on less of the altruistic genes (the one exception—which does not seem relevant to our discussion—being the sacrifice of one’s own well being for the benefit of her offspring—which behavior ultimately passes on more of those protective genes). Until very recent history, an altruistic act by a human—say giving away food without receiving a benefit of equal or greater value in exchange would seriously reduce the chances of survival and the chances of dissemination of that individual’s genes with that propensity into the gene pool.

  • Actually, your view above is completely wrong. The whole of modern statistical ecology, beginning with H.A.L. Fisher, is about the mathematical demonstration of the opposite. This statement isn't insightful, it's just ignorant.

I believe that this understanding and acceptance of human behavior—the inability to act against one’s self interest—is critical to understanding incentives for creation of artistic works and inventions.

  • Your belief is so far not grounded in any reference to the actual content of our knowledge of intrapsychic or social psychology, is not accurate biology, and is not sociologically informed. In short, nothing you have said is based in anyone's systematic investigation of anything, and so far as you have offered no evidence, it is indistinguishable from unexamined prejudice.

Even in a zero marginal cost world, there must be incentives for the initial creation of the first product.

  • This statement is not self-evident. You don't support it, and as I will show, it is true if and only if it is based on tautological definition. If offered as a serious analytical proposition, not depending on the circular definition of an "incentive" as anything that causes someone to do something, it is utterly false.

Traditionally, that incentive comes in the form of monetary compensation and inventors/creators rely on being compensated from multiple copies being distributed. Thus, the initial costs are recouped from sales of copies—even at zero or near zero margin costs—rather than from the sale of the first product—the monetary value of multiple copies being created by copyright and patent protection. Generally, the sale of the first product provides far less monetary compensation than the fixed initial cost of inventing/creating the product—resulting in a net monetary loss for the invention/creation should zero marginal cost copies be given away.

I am not yet going to take a position about whether incentives other than economic incentives could be sufficient for continued creation/invention. I understood that Professor Moglen took the position in class that he will show that monetary incentive is not necessary—that sufficient incentives could come from other sources.

  • You did not understand me. Possibly you weren't trying. I did not undertake to show anything of the kind. I undertook to show that the whole idea of incentives, under the relevant social and technological conditions, is unscientific nonsense.

I am open to listening to the arguments on that issue.

  • Very gracious of you. But since your text demonstrates that this supposed openness has not caused you to absorb much of the history of the West, from Dulce et decorum est pro patria mori through the early history of Christianity, to the thinkers (Darwin, Marx, and Freud) who made our contemporary world, I cannot help but wonder how your openness to argument (not, as it happens, the argument I am asking you to be open to, but only a strawman of your own construction) is functionally different from blind prejudice.

The important part I believe is understanding and accepting that whether the incentives come from monetary reward or other sources, human beings are rational, i.e., incapable of being altruistic,

* Not only is this not a truth to be accepted, it's not even a tenable hypothesis.

and will always act in their perceived best interest. Rather than fight this and idealistically say humans should be altruistic and give copies away for free, we must continue to provide sufficient incentives for invention/creation—from whatever sources.

If inventors/creators do not subjectively believe that it is in their best interest to create/invent such will be severely reduced or even stopped. I am not willing to stop advancement at this point in time in the interest of sharing whatever has already been created with everyone.

  • Another strawman. 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.

Looking at the technological advancements during the past century I am willing to take the position that we, as a society, are better off continuing incentives for further advancement than stopping advancement at this point in time to share what has already been invented/created with everyone free of charge—if that is in fact the trade-off. I agree that providing access to everyone is a desirable goal but if it comes at the expense of reducing or stopping technological advances the price for such is too high.

  • Would you take the same position if you were, like some children I know and admire, a slum-dweller in Bangalore living in a tightly-interwoven intact community of 2,200 extremely mutually-altruistic people who are lucky enough to share among themselves one toilet but not lucky enough to be allowed to learn? Or is it just that your personal ruminations on the experience of your own isolated life—at least equally uninformed by either much experience of the variety of human experience or much reading in the sciences of human culture—is of substantially greater importance than whatever they might have to say on the subject?

-- BrettJohnson - 25 Sep 2009

Deep thoughts, by Jack Handy. Just kidding.

Brett's thoughts are undoubtedly rational. For some reason, though, the proposed co-mingling of subjectivity and rationality ("humans are rational in that they act in any given situation in a manner that they subjectively believe") doesn't quite compile fully, at least for me. It seems like you could replace all the above instances of the word "rational" with the word "irrational" and the argument remains essentially the same. Perhaps it is more accurate to say that humans are calculating; behavior is not random. Personally, I think many kinds of human emotion transcend the predictable inexplicably, which makes it difficult to forecast how people might react to a global sharing regime.

-- JonathanBoyer - 26 Sep 2009

I believe that the unpredictability that you reference stems from the fact that people undoubtedly value different things to various degrees. Therefore, person X may very well make different choices than person Y when confronted with the same stimulus. However, that does not change the fact that each is performing a cost/benefit analysis and acting in the way that they perceive benefits them the most and/or costs them the least. This may lead to the appearance of irrational and random behavior when it fact it is very predicable and non-random. Prediction then rests solely on the determination of what people will value the most to them when confronted with a known stimulus.

-- BrettJohnson - 26 Sep 2009

Professor Moglen,

Your response seems unnecessarily attacking. Perhaps I hit a nerve or two and brought up topics that you did not want to discuss. I will say that it seems to me that people become attacking most often when they feel that their substantive arguments lack merit and they want to deflect from the merits of the discussion. I will only respond to one specific statement that you made—your statement that I think that I am smarter than you. Nothing I said even comes close to that and I am not sure how you make that inference. I have not yet even disagreed with you; and even if at some point in the future I do choose to disagree with you--that in no way means that I think that I am smarter than you. Frankly, I am just grateful to be here.

-- BrettJohnson - 26 Sep 2009

  • I'm not attacking; I'm demanding. The demand is for even a fragment of evidence upon which to predicate the extreme, and morally problematic, propositions that human beings are "rational" and therefore "incapable of altruism." Without evidence, presented as undoubted truth, this is mere propaganda. You don't hear that its smug, or consider what its political meaning might be in the larger context of existing human misery, or acknowledge that it requires factual defense in order to be worthy of consideration, or seem conscious of the overwhelming weight of evidence on the other side. You haven't yet taken aboard what the argument is actually about, but you're pretty sure that it's so insubstantial that you can meaningfully contribute to it by bringing to bear the mere propaganda of capitalism, the Ayn Rand nonsense, as though on that basis what we actually have learned about human beings over the last two thousand years or so can be not even disregarded but ignored. If one wanted to be taken seriously by scientists, one couldn't bring a creationist screed to a seminar in evolutionary theory, and then say that the resulting ire of people who actually know something about biology is a reflection of their defensiveness or the weakness of their position. What you're doing now is no different: you are offering pseudo-scientific cant that you have uncritically accepted without evidence as though we should be prepared to accept it too, and you're surprised that I think the propositions are not only ludicrous but outrageous. Okay, start with the evidence that disproves the existence of the unconscious, or demonstrates the absence of unconscious motives in social behavior or individual creativity, or invalidates all of the large literature in the statistical ecology of altruism, or falsifies Axelrod's Evolution of Cooperation or shows that Rebecca Solnit has it completely wrong in her A Paradise Made in Hell on the persistent and predictable state of mutual cooperation generated by disaster crises, or disqualifies the received understanding of the social psychology of self-sacrifice in infantry platoons, or any one of the thousand other elements that make up the consilient demonstration that your propositions are pour rire. If you know how to show that Freud is wrong, or H.A.L. Fisher, or Karl Marx, I shouldn't be at all surprised that you don't need to know anything I know about the history of technology, either, before you begin to decide whether it is "desirable" to impose crippling ignorance on billions of people in the interest of "continuing incentives for [technological] advancement." But if you actually have no serious evidence to show on behalf of the twin propositions that human beings always act rationally and that rational action is always (or even almost always) incompatible with altruism, wouldn't a rational actor in your position hasten to reconsider?

  • It is also important to understand that your propositions about altruism, however ridiculous, are also irrelevant. If they were true, the Wikipedia wouldn't be the largest reference work in the history of humankind because of altruism, and free software wouldn't be displacing all the proprietary knowledge of computer technology because of altruism, and the textbook industry and journalism done for hire wouldn't be dying because of altruism. But the Wikipedia and free software and book ripping and the blog-o-sphere would be happening all the same, and the legal destruction created by social destabilization would still be happening, and you still wouldn't know what's going to happen next and I still would. In order to go beyond teaching you what will happen next in order to give you the ability to understand why it happens, however, I need to refer to a body of social science accreted over the past 175 years that you are reflexively denying even exists, not because you know something else, but because you have been brainwashed into believing without knowing.

Deep thoughts indeed.

Initially, I have to disagree with the statements that "humans, like other animals, are generally incapable of acting in a truly altruistic manner" and "evolution will quickly eliminate any truly altruistic propensities because a truly altruistic act by definition does not benefit and may harm the actor..." I think this may be overestimating the power of evolution, or at least its current advancement. Even if we assume that altruism is a trait evolution would gradually remove, that does not mean it has removed it yet. Perhaps altruism is our behavioral appendix. Or perhaps, like the appendix, it does something beneficial we aren't aware of.

Putting that initial disagreement to the side, I agree with part of your (Jonathan's) observation re: assessment of random vs. nonrandom behavior, quoted below:

"Perhaps it is more accurate to say that humans are calculating; behavior is not random."

I think it is important to add, and perhaps you agree, that to the extent people act nonrandomly they might not actually know of all the motives behind their action (they might simply be incorrect about their motives). In other words, saying behavior is not random does not foreclose the possibility that behavior is intentional but serving motives unknown to the person.

So, even if altruism does not in fact exist and all those claiming their actions were altruistic were in fact actually serving some other internal motive (e.g. Brett's observation that "an action may appear altruistic in one sense, e.g., lack of immediate revenue generation[,] but in fact may not be an altruistic action [because you gain something else of value later]"), why wouldn't this false-altruism still be sufficient incentive for future creations? Supposing I agree with Brett that "Even in a zero marginal cost world, there must be incentives for the initial creation of the first product[,]" couldn't other motives, even if perceived incorrectly as altruism, be sufficient --- e.g. the author created in hopes of getting attention? Or for fun or amusement? Isn't that what most garage bands exist for?

I suppose I also wonder why changing from "some compensation" as a model to "much less compensation" necessarily means insufficient incentives. I do not get the sense we are talking here about paying authors/artists/etc. zero to create - if that is the proposed model, I would appreciate being corrected.

At the moment, I am still considering this model; my questions above are mostly trying to understand your (Brett's and Jonathan's) positions. My concern - and I leave it to be addressed at a later date when the class course reaches it - is what model we will use to provide adequate incentives for things like pharmaceuticals. I look forward to the readings addressing that point; they appear to be near.

-- BrianS - 27 Sep 2009

To be clear: I have no position.

"Isn't that what most garage bands exist for?" --CLASSIC

-- JonathanBoyer - 27 Sep 2009

Maybe we should have a definition of altruism. I would say altruism is an action that costs the actor more than it benefits him. That is the definition that I have been working from (I’m sure if people disagree they will let me know). The key for our discussion whether altruism exists may be whether the costs and benefits are weighed from the subjective perspective of the individual actor or from an objective perspective. Because it is the actions of the individual actor under any given circumstance for which we are concerned, I believe that a correct analysis of the viability of altruism as a concept requires analysis of the costs and benefits from the individual actor’s subjective perspective. From that perspective and under that paradigm I restate my belief that altruism generally does not exist (I will not say that it is impossible to have exceptions to every rule).

The fact that an actor takes an action at any point in time means that she thinks that the action is in her subjective best interest and that it benefits her more than it costs her. This seems self evident to me—that is why she takes that certain action and she can take no other. However, undoubtedly different people value things to different degrees. Therefore, the apparent and perceived random, irrational, or altruistic behavior comes from the fact that individual No. 1 may value A higher than B whereas individual Nos. 2-100 value B higher than A. Consequently, if an individual chooses A she may be perceived as “altruistic” by the majority of society because from an objective perspective her choice costs her more than it benefits her (assuming her choice also benefits one or more other people). So for purposes of discussion, as an example, let’s say individual No. 1 invents new and useful software and puts it into the public domain without utilizing copyright or patent protection. Most people would probably say that action costs her more (primarily from unrealized revenue generation) than it benefits her and is in fact an altruistic action. In my opinion, however, that is still not an altruistic act because she subjectively believes, based upon her values, needs, etc., that the choice benefits her more than it costs her, even if she is aware it costs her more from a monetary perspective. This subjectively perceived benefit can come from many sources, as mentioned before, expectations of rewards in another life, recognition from society, delayed monetary benefit, or even self fulfillment, which benefits subjectively, in that individual’s perspective, outweigh the costs, such as unrealized immediate monetary gain.

Therefore, I can buy into altruism from an objective perspective in that an individual may benefit others by acting in a manner that does not benefit her as much it costs her from an objective perspective (although I believe even that is rare). I continue to believe, however, that it is not truly altruistic from the individual’s subjective perspective because based on that individual’s subjective beliefs and values the action benefits her more than it costs her. Admittedly, this may be a distinction without a difference except for an academic discussion in a law school class.

-- BrettJohnson - 28 Sep 2009

It is true that so long as the definition of altruism is malleable we will all be frustrated by discussion.

I am curious though, Brett - how did your 100% use of the female pronoun (her/she) benefit you more than it cost you? As a male, I am personally offended. Just kidding - don't be offended by the question.

I wager that your lop-sided use of the female pronoun was a semi-conscious reaction to the intensely aggressive (some might say "masculine") nature of the ongoing debate. Was this an attempt to diffuse or balance the emotions underlying the discussion by planting sensibility sirens? If so, you might be on to something -- something deeper than the anti-emotional nature of your altruism calculus. Certainly, my attempts at humor have intended to serve a similar diffusive function but in a much different manner.

Ultimately, the floating variable here seems to be the caprice of human emotion. If one's theoretical model of human behavior insists on reducing every instance of emotional ambivalence to some quantifiable decision-tree, then we are all happily predictable automatons. If, however, emotions can lead to inexplicable mental absences from all cost-benefit calculations, then macro-economists are in the unfortunate position of not being god.

[It's getting a bit too abstract here, so for my own personal record I am making a mental note to be more concrete in synthesizing the following weeks' readings.]

-- JonathanBoyer - 29 Sep 2009

While's there's plenty in this conversation I find myself offended by, I feel obliged to call out in particular this statement: "I wager that your lop-sided use of the female pronoun was a semi-conscious reaction to the intensely aggressive (some might say "masculine") nature of the ongoing debate. Was this an attempt to diffuse or balance the emotions underlying the discussion by planting sensibility sirens? If so, you might be on to something -- something deeper than the anti-emotional nature of your altruism calculus. Certainly, my attempts at humor have intended to serve a similar diffusive function but in a much different manner."

Really? Really, really? I can't tell you how offensive I find it that you name what appears to at least this "feminine" observer to be merely a thorough and intellectual discussion a "masculine" debate. Huh? What makes this a "masculine" debate? Is it that the participants are men, or is it, as the casual sexism of your comment suggests, that you feel it's just getting a little too "intense" in here for the women folk? That you refer to the use of feminine pronouns as somehow having the power to "diffuse or balance the emotions underlying the discussion by planting sensibility sirens" only drives home the subtle yet unmistakable misogyny underlying your statements. This kind of tired gender stereotyping and sexism was a dead horse long ago; I'm sure those "emotional" types among us would appreciate it if you could stop trotting out its corpse any time the discussion gets too tough for you.

-- DanaDelger - 30 Sep 2009

My apologies, Dana. Your reaction was well-crafted and impactful; I take it to heart.

I didn't mean to be casually sexist or insinuate that this is a discussion only suited for men. Mainly, I just found the sudden use of all feminine pronouns by Brett interesting and offerred a sociological hypothesis. I still think it's interesting and would be glad to discuss the variety of approaches to the use of pronouns and their justifications. And I hope Brett and anyone else feels free to point out why my hypothesis is wrong; after all, I don't have access to Brett's psyche. I hope he's not offended, but perhaps it is best to get these kinds of sociological dynamics out on the table rather than leaving them hidden in pronouns. Dana - I would be interested to know if you disagree. This course is largely about the transformation of society and its cognition as a result, so I thought it was appropriate to probe a bit.

-- JonathanBoyer - 30 Sep 2009


I was not offended (not even close). I do disagree with your inference about why I chose the female pronoun in my referenced post. I try to use the male and female versions in roughly equal proportions as you can see by my original post. Because the referenced post was somewhat short and used what I considered a single hypothetical, I had to choose one or the other and I randomly chose female. I do not think that there was any more to it than that.

I do want to say that I appreciate you facilitating many of these posts—irrespective of whether I agree with your positions.

-- BrettJohnson - 30 Sep 2009

Gotcha - thanks. I've heard of the equal proportion approach, but I guess I assumed that it should apply per-post, which incited my observation of a sudden shift in writing style. It's interesting, though -- it reminds me of the equal protection debate: the colorblind constitution versus a more acknowledging, anti-subordination interpretation. If the colorblind perspective is at all applicable here, the equal proportion approach to pronouns is misguided; in fact, the very existence of male and female pronouns is flawed in that the duality is inevitably subordinating. Some might argue to have a single, unisex pronoun, but I cannot name anyone in particular. Again, I have not thought all this through, so I don't want to associate myself rigidly with any particular "position." I hope that is acceptable, for now.

-- JonathanBoyer - 30 Sep 2009



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