Saturday, August 28, 2004

Lessig's Self-Recycling

The Apple slogan Rip Mix Burn that runs like a mantra throughout Lawrence Lessig's work, is highly applicable on his own writings. As his latest book, Free Culture, is ripped, mixed and burned from much of his old argumentation, so is his latest Wired Magazine column a remix of his first book Code. Lessig is coming full circle, and with "building on the shoulders of giants" we must think of the guru's own gigantic shoulders.

Not that the David Copperfield of Copyright magically reduces 300 pages to a single sheet. But the familiar stuff is there, slightly remixed to pleasure the ears of his fans (or should I say groupies). I have to admit I tend to be one of them, mainly because his books increasingly read like John Grisham's and he can perform some tricks indeed. The question is if he delivers in the end, or leaves his public with an illusion when the smoke clears.

The argumentation in his Wired column is recycled, as is the subject: the COPA and the related filtering of Internet porn. The COPA is an anti-porn law that has never been out of court since it's ill deceived conception in 1998. This Son of CDA was scrutinized in the last U.S. Supreme Court case of this year, and again no final decision on its constitutionality was reached. Only that it could not be applied if "less restrictive alternatives" were available. These alternatives are software filters, and in comes Lessig with his Code argumentation: he rather sees a finely crafted COPA 2.0 than the absolute, speech squashing rise of filtering systems through the market system. Better an imperfect law in the books, than an overzealous filter in your computer. He wrote it in Code, he wrote it before Code, has repeated it ever since, and now it turns up in his column, again.

The guru and his mantra, conditioning through repetition: filters bad, law better - filters bad, law better - filters bad, law better. You would almost start to move to the mantra, and rightly so. Filtering systems are highly suspect from a free speech perspective. But they may be not that suspect from a free choice perspective. Or freedom from choice perspective. Lessig asks himself a question, in his column, after recycled wisdom:

"Demand for filters would fall, however, if the government enacted effective rules that enabled parents to block porn from kids. Why buy Net Nanny software for $40 when you can get the same protection through regulation for free?"

Why? Because people want to be freed from sexual explicit content, and are more than willing to pay for a filtering system that (over)blocks more aggressively than any government mandated system or rule. Even if its use would block "a gay rights site, [and] there's nothing the ACLU can do about it. Net Nanny's censorship is free of the First Amendment," as Lessig notes. Maybe people just have more trust in the market, and could care less if some activist or educational sex site is filtered. What they don't want is underblocking, the smut slipping through the mazes, so the more aggressive the better.

In that sense Lessig's proposal for effective, mandatory rules seems a bit odd. Maybe I just don't see the trick, or it is some real magic.

He proposes that "commercial Web sites carrying material deemed "harmful to minors" mark that content with a newly minted metadata tag - say, . [...] The tag could be read by HTML-rendering software but would be invisible to users. It would divide the Net into zones the way the V-chip was meant to divide up television."

Some thoughts spring to mind: PICS ripped? COPA commercial Web site condition mixed? Lessig hybrid burned? This proposal sounds like a poor Lessig Club remix with little melody. The arguments against metadata tagging are manifold. Even if it is restricted to commercial sites, a COPA condition doomed with vagueness. What Lessig says is that filtering technology has got to be framed by a law that is written so precise that speech would hardly be burdened.
It is very reminiscent of his argumentation in Code and related articles. And yes, the call for a Kid browser is there again also:

"If such a rule were effectively enforced, it would spur the market to supply browsers that parents could use to block -tagged content, essentially creating "kids-mode" browsing."
But somewhere in the burning of the column these echoes of the past got turned upside down. Where is the Kid browser that produces a signal telling sites that a minor is surfing and that access should be denied? This instead of making every commercial pornographic -whatever those two terms may entail- website put a tag in the metadata of every single webpage. "Less restrictive alternative", not really. And what's up with the increasing amount of amateur, "non-commercial" sites that put porn on the net? No tagging, let the flesh run free?

Filtering systems based on RSACi labeling are not very subtle, but a single porn tag reveals a choice for an even harder pragmatism. But the real pragmatism is both with the parents that seek to guard their children and Lessig himself. As a true legal environmentalist he recycles his ideas from article to book to column, while the handfull of porn fearing parents will buy Net Nanny, on top of the law, on top of Kid browsers, on top of any theory.
I'm just waiting for the great magician to reveal his trick, to show there's depth in the smoke. But then a magician never does. The show goes on and I'll be watching when Lessig pulls another white rabbit out of his high hat.

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Update: Adam Thierer has a post at The Technology Liberation Front in which he (somewhat critically) discusses Lessig's article and compares it to a new essay by Jeffrey Rosen, called The End of Obscenity.
Edward Felten subsequently reacts on Thierer's post at his Freedom To Tinker blog with two posts: 1 & 2.

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