CLS and IP part 2

Panel II: Critical Legal Activism & Netroots Movements

Brett Frischmann, Professor of Law and Director of the Intellectual Property and Information Law Program, Benjamin N. Cardozo School of Law

Victoria Ekstrand, Assistant Professor, UNC School of Journalism and Mass Communication

Intensification: taking existing legal structures and turning them on to empower ordinary people—similarities to Creative Commons.

CLS: exposed law’s indeterminacy; value of interdisciplinarity in finding how the law actually worked on the ground; legal system created its own realm of insiders, blocking participation from untrained legal actors; impenatrability of law. Struggled to effect change. If CLS 1.0 was a movement, it was mostly on paper.

IP wars have been a privileged location to help realize some of the goals of first-wave CLS. CLS wasn’t the cause, but the goals have nonetheless been realized.  Who made that happen?  Academics outside the law schools have become greatly involved in discussion: Richard Stallman; Vaidhyanathan, Gabriella Coleman—copyright as historical and current power struggle. Nonmembership organization: creating tools for online collective action.  Some may be “clicktivism,” subject to criticism; others are like Fork the Law, working on tools to allow more direct citizen commentary on law/proposed legislation.

Ubiquity of copyright matters; so does narrative.  SOPA/PIPA: Wikipedia being down, and phones in Congress being jammed, fuels a compelling story. So did the tragedy of Aaron Swartz’s death.

CLS: recall that law professors were denied tenure over CLS, so the term became less prevalent, even though students come to law school to make the kind of change that CLS offered. Students increasingly have diverse interests and skills.  Torchbearers for new legal practice.

Siva Vaidhyanathan, Robertson Professor in Media Studies and Chair of the Department of Media Studies, University of Virginia

​Intellectual history of the free culture movement/info policy activism/copyright activism.  One part of that story: A ragtag group of IP scholars happened to notice changes, threats, opportunities; got together with librarians, others, and raised some early warnings about scary proposals in Congress that ultimately became law. No necessary direct lineage between CLS and free culture, but because the academy itself was altered by the presence and often painful experience of CLS, you can’t help but pay attention to the way in which CLS changed the habitus of the legal academy.  It’s almost too easy to go to Larry Lessig and Jamie Boyle—look at who they and the rest of us are footnoting and reading.  Pam Samuelson & Jessica Litman; Julie Cohen’s work exemplifies the powerful critique of CLS.  Ann Bartow & explicit feminist analysis.  Tushnet, Katyal.  A feminist/subaltern influence on the rest and on public policy.  Anyone starting out can read Litman’s Digital Copyright.

Examine battles in 70s and 80s between CLS and law & economics.  Huge effect on regulatory and legal policy while CLS says, wait, the story isn’t that simple; complex dynamics of power and human relations.  CLS is also trying to displace more established liberal rights framework.  Complicates relationship with free culture, because law & economics doesn’t have a clear set of answers about what copyright policy we should have.  Libertarians like Kozinski/law & economists like Posner can be fervent advocates of looser IP, though not always.

Caveat: activism.  IP law’s contestation by multiple stakeholders doesn’t mean direct link to CLS, because lots of areas of law are contested in that way. But spirit of CLS has been taken up in law schools in lots of ways whether profs know it or not. Cultural studies has also loosened up the academy.  Left-wing cultural theory was quashed in a way; it’s no longer the thing to write dissertations quoting Deleuze & Guattari. However, the influence of Barthes and Foucault and the Frankfurt School are now so embedded in the common sense of the academy, and therefore the classroom, and therefore the education of many at elite universities, that it plays a role in how they see the world. Doesn’t mean that it’s dominant, but it’s there.

Also remember CLS and legal realism: pragmatism never went away. While Legal Realism went out of fashion for many reasons, it was never out of political and intellectual life of the US. 

CLS absorbed without being identified. Last week’s arguments in US v. Windsor, Scalia and Alito hinted that they couldn’t accept rights-based analysis, because they’d lose; they can’t do a textual reading of the case, so there’s no text to read.  So Scalia asserted the falsity that sociologists disagreed about the effects of gay marriage on children, and Alito said that gay marriage was new—as if their job was doing sociology, albeit badly; as if Gunnar Myrdal should show up and give them a brief.

John Tehranian, Irwin R. Buchalter Professor of Law, Southwestern Law School

IP is suddenly on the radar of 16-year-olds.  Registration requirement for statutory damages. This has disparate impacts on small creators; can’t practically litigate their copyright rights. Yet sophisticated content creators have the hammer of statutory damages and attorneys’ fees, such that even a de minimis infringement might be worth pushing into court.  If you infringe Hollywood, you go to jail/bankrupt; if they infringe your work, the lawyers ask first whether it’s timely registered, and they can then say “go ahead and sue.” This creates a massive power differential.

Compare response to Copyright Term Extension Act and SOPA/PIPA. CTEA was passed on a voice vote; 15 years later, massive individual awareness by individuals who typically aren’t political.  Critical activism in copyright transcends traditional political lines. Distinguished from predecessor CLS.  Maybe it can therefore see more achievements in the real world.  Not just ivory tower/elitist movement. Ardent supporters of copyright, such as Justice Ginsburg, often from the left; critics can be from the right, like Derek Khanna, viewing copyright as corporate welfare from the government.

Frischmann: what about netroots activism is different?  What makes it critical and not just activism? What makes it fail and what makes it succeed?

Ekstrand: has the characteristics of regular activism. There’s something unique about internet infrastructure in reaching 16-year-olds, as initial crits really wanted to do but couldn’t. Evgeny Morozov warns us against attributing too much to the internet; there is a tendency for folks to click “I agree” and move on, but there’s more too it than just getting excited about tweets and emails to members of Congress.  Students in particular have a sense that they have tools at their disposal.

Vaidhyanathan: What kind of activism today isn’t digitally mediated? Is anyone planning a campaign that eschews social media/YouTube?  How would we test this proposition that digital is different? When humans want to get something done, they employ the available tools. Nothing profound about that. Not to say that each media system has same level of reach or same level of embedded friction.  Activist ecosystem today: so much noise. If we are engaged with any sort of movement from any position, we are instantly profiled and barraged with requests for attention and money, which diffuses attention: how to know whether I’m making a difference.  It will be years until we can measurably assess how they altered the political environment of the US, let alone the world.

True that we often focus on successes, not failures.  Wikipedia is the universal solvent in literature—anything can be like Wikipedia!  No, Wikipedia is special, perhaps a one-off. We’re waiting for the second Wikipedia, second Talking Points Memo; waiting for Howard Dean campaign to finally win a primary. 

SOPA/PIPA is fascinating not just because Wikipedia and Reddit and Google were involved. Don’t forget that people were banging pots and pans together for a decade to get a vocabulary and a clear narrative about nightmare scenarios out there so that people, even if only elites, understood that there was a lot at stake. Took a while to prime the public to care about things like this and enable the reaction.  The people who finally wrote to Congress understood because of what had gone before.  There have been a dozen cases where Reddit was not a great example of the constructive use of rage.

Tehranian: Lessig on losing Eldred: what do you expect when you fight all the money in the world?  SOPA/PIPA, some of the money was on the other side. Taking place at the same time as Occupy Wall Street and Wikileaks; we don’t talk about those any more even though they had access to the internet, new tools, youth.  SOPA/PIPA had Google and other powerful companies that could countervail the forces of Hollywood. Was a big moment, but need healthy skepticism: what made it different was the fairer money fight.

Q: Copyright alert system (6 strikes) & Justice Dep’t help—the internet goes both ways. IP maximalism is driving private surveillance—watching you while you watch Netflix, etc.

Vaidhyanathan: Right, which is why it’s unhealthy to bracket out copyright from other info policy issues. FB’s new app for your phone is a massive surveillance tool.  Copyright and privacy are not separate, as Julie Cohen has argued.

Q: what about interests not represented by either side?

Vaidhyanathan: should challenge notion that info maximalism is our goal. Not fighting for the good of “the internet,” but rather the good of people, in which the internet is an important tool. Don’t essentialize the internet or internet freedom; it’s about what people can do. Keep challenging corporate platforms; don’t be satisfied with a friend on our side for one particular issue, especially when it claims to represent the public interest. Challenge the liberal US-centric narrative of the public domain by paying attention to cultural claims around the world. Also, pay attention to labor issues as well. Valorization of public domain goes hand in hand with dissolution of status of labor too often.  Complicated; will undermine political efficacy, but as responsible scholars these are issues we can’t avoid.