Friday, April 29, 2011

Trends in Media Technology

As research for my dissertation, I found myself in consumer electronics store. In thinking on the issue of first sale in the digital age, I realized that I've been a little out of touch with content delivery systems as the consumer tends to interact with them. Working with computers and software is one of my hobbies, so I keep track of development, but I prefer building computers to buying them and use GNU/Linux operating systems as often as possible. As a result, my interactions with media are guided by a tinker's sensibilities. If I want to know how major media conglomerates want consumers to interact with media, I have to go the retail outlets where such things are sold, especially to those who do not want to tinker.

My goal was to take a good long look at content delivery: what channels are available for accessing media, how is that access controlled, and what are the capabilities of available platforms. I looked at devices for video, audio, and ebook content, as well as multi-purpose devices like tablets. While I have no intention of giving any in-depth product reviews, there are some general trends that give me pause when considering the manufacturer's expectations.

I suppose the most striking examples can be found in the explosion of set-top boxes, devices designed to connect to televisions for the purposes of delivering digital content. Most of these devices purport to solve a space-shifting problem; allowing consumers to view content on their televisions that they can normally only view on their computers. However, they must do so in such a way as to appease content owners. The website Hulu provides a useful example here. One can navigate to Hulu to watch a wide variety of streaming content. Nothing is saved to the user's hard drive; Hulu just provides a portal, and content is broken up by advertisements, much as it is on cable or satellite television services. Nevertheless, content providers were not happy with the possibility that some users were able to access Hulu from the web browser built into the Playstation 3's software, so in 2009, Hulu began blocking the PS3 browser from accessing the site. Eventually, a compromise was reached when Hulu began offering a paid subscription service; subscribers were then able to access Hulu from the PS3's. Free users were left out of the loop.

Now, one might claim that there is nothing going on here beyond providing a reason to pay for something one could otherwise get for free. On the other hand, in order to create that reason, a device's function had to be impaired. The PS3 did not gain any new functionality as a result. Instead, some functionality was removed and effectively held for ransom.

The trend continues with set-top boxes, thought perhaps it might only be noticed by those with some technical background. To be clear, there is nothing in a set-top box that cannot be found in a computer. For all intents and purposes, such devices are computers, or at least stripped down computers. The main component lacking is a hard drive of some kind. The majority of set-top boxes serve as vehicles for consolidating available content from multiple services. To put it another way, the set-top box is one more thing to purchase so that one can access content for which one already pays. Interestingly, such a device already exists in the form of the personal computer. The important difference is that the set-top box does not facilitate storing media libraries for later viewing, and the operating system only allows the installation of approved applications. In some cases, the price point is not much lower than purchasing a computer with similar hardware specifications (with the addition of a hard drive).

When I ask myself why offer such a device, rather than a more capable one, the most ready answers have to do with control over content. With a fully functional home theater pc, one can archive content, view that content with one's chosen applications, and still access streaming content. The user then has a great deal of control over how he or she engages with media, control that is lost in the stripped down set-top boxes. At the end of the day, control seems to be the valuable thing, and the only way to maintain control is to marginalize more capable devices. To be sure, there is a market for HTPC's; but such devices did not make their way into consumer electronics retailers. Instead, what one does find is a device that is, in some cases, no less expensive, but much less capable.

Wednesday, April 27, 2011

Politics and Power

I did not begin this blog with a plan to comment extensively on current events. Nevertheless, a news item from the CBC stirred up some thoughts about the relationship between politics, power, and democracy. The background story can be found at the link below:

The story concerns the current election cycle in Canada. The Conservative minority government recently fell to a vote of no-confidence, so Canadians head to polls on May 2 to elect a new government. The Conservatives have been in power for a few years now, and early polls show that the New Democratic Party, traditionally one of the more marginal of the major parties, is leading on the other parties. As a result, the leaders of the other parties have launched attacks on the NDP, their leaders and their campaign promises and platforms. Now, you might not find this overly surprising if you're not familiar with the Canadian political landscape.

For those not in the know about our neighbors to the North, Canadian Parliament has been dominated by three parties, the Liberals, the Conservatives, and the NDP. Other parties, such as the Bloc Quebecois, have occasionally formed important support voting blocs. The Liberals are often considered left-leaning centrists; the Conservatives, of course, make up the right, and the New Democratic Party takes up the far left. In the past, the NDP have often stood with the Liberals to support Liberal minority governments, and in general, NDP platforms are more consonant with Liberal agendas. In this very campaign, both the Liberals and the NDP have proposed ending corporate tax havens, but in the above story, the Liberals have criticized the NDP proposal.

Now, particular issues aside, these kinds of power games bring to my mind the ugly side of politics. In a political race, I would think that what matters are the party's position. Nevertheless, the actions of the parties, turning on the dark horse when it looks like he'll pull ahead, speak to the importance of power for its own sake, not the goals one wishes to achieve. If the Liberals were committed to their position, there would be little reason to attack the NDP because they agree to at least a large extent. Certainly, the Liberals would be expected to argue that the NDP wants to go too far or that their proposals are too radical, but to call out the NDP on a promise that they themselves have made indicates that what matters is being in charge.

If politicians are seeking office for the sake of realizing what they honestly think is the good of people, such petty squabbles would be set aside. Where two candidates agree, they should argue for the superiority of these views. Where two candidates agree, they will still debate over who would do the best job, but they would not be expected to attack one another's views. That such debates have occurred in the current Canadian campaign, and have occurred in other contexts, shows that something else is at stake. In particular, it seems that what is at stake is power, the right to rule. At that rate, it seems difficult to believe that such characters have the best interest of the people in mind. To the contrary, it seems that the core of interest is being in control. I suppose the further question is what is so desirable about being in power, another way of asking the old question “Cui bono?

Monday, April 25, 2011

Lifetime Copyright Terms and Corporate Authorship

When the CTEA passed in 1998, and the Supreme Court defended it from challenge just two years later, the accepted term for copyright was once again extended. The council for the plaintiffs attempted several arguments to show that the CTEA unconstitutionally extended copyright terms, and that if such legislation was a sign of a trend in IP legislation, the sense of copyright as a limited monopoly would be eroded bit by bit until all copyrights were rendered perpetual. Unfortunately, the Court rejected those arguments. As of now, copyright protection is guaranteed for the life of the author plus 70 years for works of individual authorship. Works of corporate authorship are treated differently, protected for 120 years from date of creation, or 95 years from date of publication, whichever is earlier.

It would be convenient if the story ended there. However, the ruling in Citizens United v. Federal Election Commission extended broad rights of free speech to corporations, entities which are, we should remember, legal persons not natural persons. In that case, the Court ruled that corporations cannot be barred from using their assets to express their opinions, just as natural persons can according to the First Amendment. Now that basic Bill of Rights protections have been extended to legal persons, the line between a natural person and a legal person is much less clear. Legal scholars have begun to wonder exactly how blurred the line can be, and some of their predictions are quite chilling.

For now, let us consider a hypothetical situation which lies in some future intersection of these two trends, strengthening intellectual property rights and homogenizing corporate personhood and natural personhood. This thought experiment should show the problems inherent in ever-lengthening copyrights as well as failing to recognize important distinctions between legal persons and natural persons.

Imagine that media conglomerates argue that treating works of corporate authorship differently from works of individual authorship is discriminatory. The media conglomerates argue that corporate works should receive copyright for the life of the author plus 70 years, just as works of individual authorship do. Rather than the 95-120 year term, corporations would hold copyright over works for the lifetime of the corporation plus 70 years.

First of all, such a change would dramatically alter expectations about copyright term. Without directly extending the term limits, works of corporate authorship would be protected by copyright for the lifetime of the corporation. Since a corporation is not a natural person, its lifetime could be incredibly long. Consider news stories, typically protected by copyright held by the newspaper or the news agency (such as Associated Press). If copyright were guaranteed for the life of the corporation, stories appearing in news paper would be so protected as long as the newspaper remains the same corporate entity. In the case of a newspaper like the London Gazette (published continuously since 1665), the copyright might remain effective for far longer than a work of individual authorship.

In the case of newspaper stories, extremely long copyrights might have a devastating effect on historical research. News stories are often sources of information about how events were viewed as they happened, what the relevant perspectives might have been, and how those events impacted people as they happened. Even advertisements in newspapers, very likely candidates for corporate ownership, reveal common concerns, needs to be filled, and market trends. For long-lived newspapers like the London Gazette, researchers may find that their sources are essentially held hostage by the newspaper. Some materials may be accessible for a reasonable price, though any reasonable price is higher than the current cost, but the newspaper may also choose to withhold some issues or some stories for various reasons. It might be the case that a member of the board of directors wants to hide an old family scandal, or political contacts may pressure the newspaper into withholding stories which would weaken an argument about past trends. The image of a historian searching through a freshly redacted past issue belongs in a dystopian novel, not a supposedly free society.

Now, none of these situations might come to pass. It may be the case that corporations, or the board of directors at least, are capable of some level of social responsibility. It is possible that in such cases, the newspapers would allow open and even free access to its full archive of stories for the use of historians all over the world. After all, it is easy to imagine an individual exercising such a sense of social responsibility. Nevertheless, there are key differences between these seemingly identical outcomes.

A person's decisions are based on a wide variety of factors, ingrained moral sensibilities, reason, available evidence, duties, etc. It is difficult to predict what a person might do, just because there are so many different reasons and stories which one can tell, each story taking different influences as key and predicting a different outcome. Corporate decisions are no more predictable, but for different reasons. Corporate decisions are guided by potential material payoff. While corporate decisions are made by groups of individuals, these individuals are encouraged to shift their sense of social responsibility away from society at large and toward the shareholders. The socially responsible decision in a board of directors meeting is the decision which will maximize profit for the shareholders. If a board is faced with two choices, one socially responsible in a larger sense, and one socially irresponsible, the board members may prefer the socially responsible choice. Nevertheless, if there is a risk of another board making the socially irresponsible decision in the interest of maximizing shareholder profit, the moral consideration shifts. If the first board can decide to take the same socially irresponsible plunge to protect its shareholders' profits, the board may decide that it is prudent to do so, owing to their responsibility toward their shareholders.

In this way, corporate competition takes on the character of a Prisoner's Dilemma. The classical Prisoner's Dilemma is composed of two prisoners held under arrest. Both prisoners are offered the same deal. If A defects on B, A can go free and B will go to jail for 10 years. However, if B defects on A, A will go to jail for 10 years. If they both remain silent, they will both be held for 5 years. The only way to avoid jail is to defect and not be defected upon. Therefore, it is rational to defect in hopes that the other prisoner will stay silent. Since both prisoners reason in this way, they both defect and both go to jail for 10 years. If they had both remained silent, they could have received 5 years only, but the risk is too great. Defecting is the only viable option, and it leads to worst outcome. The situation with corporations is the same. Each corporation must defect on the others or else risk the worst outcome. However, all corporations defecting leads to the worst outcome for all.

In such a situation, we may not be able to predict whether a corporation will act responsibly, but
we can see that even if they do so, it will be for no more robust reason than maximizing profits. The same action in an individual would not be considered moral, and if corporations are to have the same legal status as natural persons, we should evaluate them on the same terms. Even worse than that, the Prisoner's Dilemma situation predicts at least a regular practice of opting for courses of action which are irresponsible with respect of the larger community just to avoid other corporations doing the same and dominating the market. Bestowing such entities the ability to maintain copyright on works which become culturally significant places the very culture in the service of the bottom line. The Disney Corporation has dominated children's media for two full generations; they shape children and media directed at children and have done so for a long time under the current regime. It is difficult to imagine Disney all of a sudden gaining a sufficiently great sense of moral responsibility to refrain from suing the pants off of the next animation studio to re-tell a classic fairy tale.

Monday, April 18, 2011

A Personal Account of External Cognition: My Life as Someone Else's Wikipedia

I first heard about External Cognition while working on my MA at UBC. I found myself rapidly developing an interest in philosophy of mind and cognitive sciences, especially in modelling the mind (or consciousness). External Cognition seemed like an interesting way of questioning the mind-brain reduction, but ultimately, some of the claims made by supporters of External Cognition also seemed outlandish, too far a stretch of what we consider “thinking” or “knowing.” For the most part, I went on to disregard External Cognition as a serious model, but occasionally, events in my own life became doubts that gnawed at my skepticism.

For review, External Cognition is the view, stated originally in a paper by Clark and Chalmers, that cognition can be located “outside of the head.” For example, I cannot specify in great detail the location of the nearest shopping mall, but I can tell you that if you drive along a particular road in the right direction for long enough, you'll find it. Now, in a classical, perhaps Rylean, understanding, one would not say that I “know” that the mall sits at a certain intersection, but I do know how to get to the mall. The supporter of External Cognition would instead say that I do know the location of the mall, but my knowledge cannot be located in the head; instead, the knowledge can be located on the recommended street and direction. Another example may be helpful. Imagine a logician or mathematician working on an especially problematic proof. Intuitively, one might consider the logician as thinking through the proof, but at the same time, much of that thinking takes place on the scratch paper the logician uses to assist his figuring. Classical, or perhaps na├»ve, understandings would locate the thinking inside the logician's head, but External Cognition advocates would point to the large amount of “thought” located on the page itself. Indeed, one might even reconstruct the logician's reasoning from his notes, so why would one not say that the thinking happens outside of the head? External Cognition supporters frame cognition as a process which spans inside and outside, taking place in the head, but also on the page, the computer screen, etc. Rather than view the logician's notes as mere tools or shortcuts, External Cognition equates the mind with what would otherwise be considered its aids. If this theory seems implausible to you, then you share my initial skepticism. Now, on to how that initial skepticism transformed into tentative speculation.

I have the great fortune to have found a life-partner who shares my intellectual and academic interests (and I hers). Consequently, we have learned a great deal from one another, and we consider intellectual exchange an important pair-bonding activity and cornerstone of our relationship. As much as we consider ourselves intellectual equals, we have also had the opportunity to learn about how our intellectual capacities differ. In particular, I have the better memory, so I often find myself taking the role of prompt, providing my partner the proper names, dates, or terms to fill in the blanks in her conversations. We have engaged in such conversations, by ourselves or with others, for years, but something changed with the rise of Wikipedia.

I adore Wikipedia, and I often find myself idly browsing articles, checking back on facts I thought I knew, expanding my understanding on some topics, and researching incomplete particles of information gleaned from others in casual conversation. Given my memory, in my post-Wikipedia life, I tend to walk around with more ready facts, names, dates, theories, than I did in primitive pre-Wikipedia days. As such, I have become better capable of filling in gaps for my partner, or remembering gaps I cannot complete for later research or fact-checking. My partner shares my adoration for Wikipedia as well, so we often recommend articles to one another and discuss them by ourselves or with our friends. According to our usual pattern, I often find myself throwing in a proper name or technical term where my partner's otherwise impeccable explanation falters. At times, I find myself feeling like a living Wikipedia, always at the ready to supply the answer, and that feeling caused me to return to my initial evaluation of External Cognition.

In many conversations, I function as my partner's external memory. She knows the substance of what she wants to say, but she uses me for the occasional prompt. As a unit, we function quite effortlessly, able to hold conversations on a wide variety of topics. The unit simply distributes its functions in a very particular way; namely, spontaneous recall weighs heavily on my side. Nevertheless, the explanation, the substance of the conversation may originate from either of us (I do often hold my tongue to some extent; I've long ago learned how our unit distributes social graces, and those weigh heavily on her side).

Now, imagine my partner goes out on her own, but brings along a bluetooth headset so that I can hear her conversations, but only she can hear me. Further imagine that she has a very small, inconspicuous headset, one not readily noticeable by her interlocutors. To an outside observer, she would seem to be carrying on conversations effortlessly, with perhaps small pauses to recall some particular. To the outsider, she would simply seem to have an extensive memory. These kinds of thought experiments lend a certain plausibility to External Cognition. My partner uses my memory like she would scratch paper when solving a math problem. My memory is her tool, and she uses it effectively, so why not say that she has an efficient external memory?

“Smart” phones only push the comparison further by placing even more information at one's disposal.

Wednesday, April 13, 2011

Baseline "Problems"

In his discussion Locke's Proviso, Robert Nozick articulates some worries about interpreting the  proviso as requiring the maintenance of some baseline (Nozick Anarchy, State and Utopia Part II Ch 7 Section 1). In particular, Nozick is worried about how to cash out Locke's proviso against appropriation; an appropriation is unjustified if there is not “enough and as good” left for others. If the proviso is understood as protecting agents from falling below a certain baseline, then we must confront the problem of establishing what that baseline is. Nozick, and those who follow his interpretation of Locke, abandons the baseline conception and instead adopts a Pareto-Optimal view of the Proviso. Namely, a taking is unjustified when an agent's current situation is worsened, where worsened must be evaluated in terms of opportunities created and lost, etc.

Without getting into the reasons I disagree with this interpretation of Locke's proviso, I've always been bothered the skepticism about baselines. I just don't see why the baseline needs to be given to us in the theory. It seems to make just as much sense to say that “the baseline” is a set of conditions deemed minimally tolerable. As such, the baseline will change as the affluence of the society changes. Consider current debates over socialized health care in the United States. A century ago, the most affluent nations in the world did not provide health care for anyone. After the devastation of two world wars, European nations dealt with rebuilding by socializing their economies, including health care. Now, citizens used to socialized health care consider it a right, something that they would be offended at losing. That attitude has crept into the United States, and citizens justifiably wonder why it's not possible here when it seems to work well enough over there. Of course other citizens feel differently, but many reasons for disagreement are financial in nature. In other words, they amount to worries about whether or not such a system is economically feasible. It must be feasible if it's done elsewhere and those economies are no more in collapse than ours. As the calls for health care get louder and louder, doesn't it make sense to say that the baseline has changed? The Founding Fathers might never have conceived of such a thing, but we might come to think it necessary for the continuation of our society.

Monday, April 11, 2011

Memes and Rights

As I mentioned in the last post, my dissertation concerns intellectual property rights. I am currently writing a chapter on the information commons in which I argue that the information commons should be understood as a collection of memes. As such, agents must have some presumptive rights to access the information commons. Otherwise agents would not have presumptive access to the contents of their own minds. To understand why this should be so, a little bit of unpacking is required.

“Information commons” is a way of talking about generally known or available information. The information commons includes inchoate ideas as well as complete works, both public domain and protected works. Intellectual property scholars invoke various metaphors to explain what the information commons is, why it is so important, and how it should be preserved. The most straightforward model, the one which the very term arises, comes by way of analogy to a physical commons. The information commons is a stock of raw materials, available for anyone to appropriate and incorporate into creative or innovative projects. It must be treated as a natural resource, preserved for future generations of creative minds.

While the analogy to the physical commons has a good bit of explanatory power, it's just not robust enough to do any work in a system of intellectual property. Granting that there is an information commons that conforms to the geographic metaphor, who should have access to it? Can the information commons be ruined or spoiled such that an environmental ethics is necessary? The answers to these questions lie somewhat outside of the geographic metaphor. As such, the answers vary according to the external principles, values, or theories to which one appeals. As a result, the geographic metaphor will become vulnerable to new objections, and we will have at best, an inconsistent treatment of these issues resulting from the clash of intuitions.

Rather than sort of these issues in detail, I prefer to ditch the geographic metaphor for a model more consistent with the actual constituents of the information commons. The problems that arise for the geographic metaphor have their origins in the analogy between physical property and intellectual property. Physical property is rivalrous and exclusionary, but intellectual property is neither. When an artist draws on the information commons, he does not remove anything because the same ideas are still present for someone else to use. As such, the proponent of the geographic metaphor has to defend any preservation project against fairly intuitive objections. Resorting to a different model of the information commons, one that construes the commons in informational terms, can avoid such objections and provide a more complete account of how the information commons should impact intellectual property policy.

For these purposes, employing Richard Dawkins's notion of memes is very helpful. The information commons is, not surprisingly, composed of information, ideas. “Memes” are “units of cultural transmission” to use a phrase from The Selfish Gene. Like genes, memes survive through replication. If one person thinks an idea important, she will tell others about it, ensuring that there are many copies of the idea. When we talk about the information commons, we are talking about the collection of generally-available memes, the ideas that circulate among living minds.

If the information commons is understood in this way, agents must have some presumptive rights of access to the information commons because “information commons” is just a way of talking about ideas in individual minds. An agent must have access to the contents of his/her own mind; any other situation is incoherent. Access to the information commons can be understood as reading permissions, manipulation/transformation permissions, and communicative permissions. Each set of permissions will be addressed in turn.

Reading permissions are the least problematic, in part because they are entirely self-regarding. An agent causes no direct harm by reflecting or analyzing an idea. Any idea to which an agent has been exposed to must be up for consideration in the mind. Defining transformation permissions, the ability to manipulate memes is not much more problematic. Beyond merely considering ideas, agents will inevitably engage in some creative thinking utilizing known memes as raw materials or starting points. Some creative thinking will be take place entirely in the head, some might find its way onto a tangible medium while working out the details, and some will result in complete works. In an intellectual property system that bestows copyright on any work once fixed in a tangible medium of expression, such activities will sometimes run afoul of existing copyrights or constitute infringement. An intellectual property system that presumes any use or derivative is infringing absent a successful defense (as US copyright law does) outlaws a normal activity of thinking beings and enacts an unenforceable ban. For the purposes of defining a minimal set of access rights, all one need specify is that creative thinking, including the creation of new works, is presumptively permitted absent considerations about the circulation or commercial nature of any creative products. Circulating a work and profiting from it are public activities that can be effectively policed. The extent to which they ought to be so regulated must be answered by the schema of communicative permissions.

Defining the minimal schema of communicative permissions presents the most complex problem. At base, one might wonder why a special scheme of communicative permissions is necessary. Reading permissions and transformation permissions both center on self-regarding acts, private acts that affect no one. By contrast, communication is a public act, and, given that communicative permissions might include permission to publish, distribute, or sell the work, communication can be an economic act as well. If one holds the memetic view of the information commons, there is good reason to think that some base communicative permissions are warranted. Consider the counterfactual situation; were agents restricted from discussing memes from the information commons, all communication and conversation would be chilled. Before speaking, an agent would have to assess the contents of her utterances for protected content and remove those references that she is not permitted to discuss. Again, such a ban would be impossible to voluntarily follow and impossible to enforce. At minimum, agents need to be able to comment on memes to which they have been exposed, criticize or analyze them in discussion, and inform others about them.

The permissions defined here are the minimum an intellectual property system needs to satisfy coherence with the memetic view. More extensive rights cannot be defined without reference to how intellectual property rights interact with this base set of permissions. Nevertheless, some necessary groundwork has been laid. Now, I just have to expand those arguments for inclusion into the dissertation.

Friday, April 8, 2011

The License

I'd like to draw your attention to the license text at the bottom of this page. I might not normally take the time to point out licensing, but it is a matter of professional interest. My dissertation concerns intellectual property rights, and I argue for a fairly open intellectual property system, in hopes of providing some argument against current trends. I place myself on the side of free culture. Culture is the product of basic human activities, the ways we connect to one another and come to understand ourselves and our fellows. As such, creative works provide a key benefit to the public at large. They allow us to express ourselves and communicate with others, to show our own struggles and reflection, to offer our own perspective. What is most interesting to me is that the value of intellectual objects is maximized by sharing, not hoarding. An invention unsold, a story unpublished, can bring some passing benefit to a single person, but once released to the public, circulated widely, it can benefit generations. As such, our creators and innovators should be rewarded and encouraged to continue their intellectual labors, but the public must be allowed sufficient access to creative products to realize their full value.

As a scholar, I feel that it would be dishonest to simply release these blog posts under a full copyright. Instead, I will put my arguments into action and opt for a Creative Commons license that suits my needs. As such, all material posted to this blog is released under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License. While this is the most restrictive of Creative Commons licenses, I chose this license because I want this work to be circulated freely, but since it is an extension of my professional activities, I would like my name attached to these posts, and I would like to be involved in any efforts to build upon them.

Unfortunately, my sense is that CC licenses will be incompatible with most journals, so I will not be posting any full papers here. This blog will be reserved for ruminations and sketches for complete arguments to aid in my writing. I will be sure to note when any paper relevant to these posts is published so that those interested in the longer work can find it. Perhaps in the future, open-access journals will become the norm and the situation will be different, but until then, I am bound by necessity. I do hope others in the community of scholars will adopt open licenses appropriate for their research. We're the ones who have to demand the change.

Wednesday, April 6, 2011

Corporate Personhood

Today I attended a talk on the Citizens United vs Federal Elections Commission ruling. The speaker was in favor of the ruling, and while I disagree, I would rather not tediously summarize his arguments and criticize them point by point. Instead, I'll present some puzzles about corporate ownership and the implications of the Citizens United ruling as intuition pumps. I dislike the notion of treating legal fictions as persons, and I hope to the intuition pump provided will at least show some reasons for my skepticism.

The one thing I will mention about the talk in question is the speaker's assertion that Citizens United was not a case about free speech not corporate personhood. One might find that view credible if it were the case that corporate personhood were a given. Nevertheless, corporate personhood, and the rights of corporations if any, is the truly vexed question. Regulation and censorship are major issues and the subject of much debate, in courts, among legal scholars, and among philosophers because free speech is considered a basic right of citizens in a liberal democracy. Any law or decision that threatens to limit speech (justifiably) sets off red flags, calling us to attend to the subtleties of the issue and whether the basic freedom to express oneself is truly hindered. If one takes corporations to have the same schema of rights as individual, or some comparable schema at least, the same red flags would be raised. On the other hand, there is good reason to question the coherence of corporate personhood or corporate rights, so the Citizens United ruling set off red flags about power dynamics between individuals and legally recognized collections, and the different levels of influence available to each group. From that perspective, Citizens United is about free speech, individual free speech and the ability to have individual voices heard over the roar of empowered collectives.

From a political standpoint, personhood is an important concept because basic rights and liberties are distributed to persons. In a liberal democracy basic rights and liberties should be distributed to all persons, with perhaps some rights reserved only for persons who are full citizens (the right to vote for instance). Persons are also considered morally (and socially) accountable for their actions, for what they do with the rights and liberties given to them. If one person violates the rights of another, the offender must account for the violation in some way, usually in the form of punishment. Such consequences serve as a corrective measure, as in reparations for damaged property, and a deterrent. Where the negative outcomes outweigh potential gains, the offending action becomes an irrational risk, and the presumption is that rational (or at least reasonable) agents, when given the option, do not take irrational risks. This is the basic framework for social interaction, and while only a skeleton compared to fully fleshed out political theory, the key issues for comparing individual personhood with corporate personhood are in place.

Now, one reason to question the validity of corporate personhood stems from metaphysical issues. The individual human being is our core case of personhood. Any human being can be definitively considered a person. Children or adults with mental disabilities are still persons, we simply recognize them as having different capacities, and therefore we address their responsibility for their actions differently, but we still unproblematically consider them persons. By contrast, corporations are considered persons by way of legal fiat. For certain purposes, collectives of individuals, organized under a charter, can act as if the collective were really a single person. The most straightforward examples all involve economic transactions. For instance, a corporation can own property, commission a factory to be build on that property, hire employees to operate the factory, and enter into contracts with raw material providers and distributors of finished goods. Notice that the notion of corporate personhood is parasitic on the concept of personhood simpliciter. The recognition of the corporation as a legal person allows individuals to act as if they were one person. If a corporation has any rights at all, those rights must be parasitic on the rights of the individuals who formed the collective. In other words, if a corporation has a right that none of its constituent members enjoy, some further justification for that right must be offered. By the same token, if a corporation has any of the rights enjoyed by its constituents, it must be for the purposes of exercising that right on behalf of the members of the collective.

The problems begin to crop up with issues of liability. If a corporation is responsible for a punishable offense, on whom does the punishment fall? Property violations are really the most simple case. The corporation has assets, and those assets can be fined to compensate the offended party. Issues such as criminal negligence, reckless endangerment, and negligent homicide are more problematic. In such cases, punishment cannot be easily rendered into monetary compensation, and that approach is not taken with regard to individuals who commit such offenses. Instead, an individual found guilt of criminal negligence may have to serve a prison sentence, perform community service, or abide by the terms of a probation. While these consequences may require some monetary loss to the convicted, there is also a time investment or behavioral requirements that must be met. The convicted is supposed to be at least inconvenienced, and at best is supposed to learn some greater care or compassion and exhibit more care in his future actions. When any of these consequences are laid on a corporation, they always amount to monetary consequences. A corporation might be required to fund a charitable cause or bear the burden for a community-centered activity or program, but there is no sense that the corporation itself can learn from these experiences. The money is simply spent, the employees ordered to perform accordingly, and the sentence is considered carried out. In such cases, the consequences are reduced to fines, money that could have been spent elsewhere is forcibly redirected, but the corporation cannot be inconvenienced, and it cannot learn compassion or take care in the future. The individuals that compose it can, but in current legal practice they are not necessarily embroiled in the consequences beyond directing that the money be spent, agents hired, etc.

So, with that in place, here's a puzzle. If corporate personhood arises from the personhood of its constituents, and corporate rights are an extension of the rights of its constituents, why does corporate responsibility end at the collective? If my friends and I decide to erect a tall sign on property I own, and our construction work is so shoddy and ill-planned that a passer-by is killed when our scaffolding collapses, we would all be taken into custody and might find ourselves tried for gross negligence, or even negligent homicide. Assuming that we are guilty, we would all face the consequences for our actions, and the organizer of the effort, me for instance, would possibly suffer a harsher sentence because my bad decisions were ultimately responsible for the death of a human being.

If corporations are persons and have rights commensurate with individual persons, why is it that the CEO and board of directors of BP and Transocean are not on trial for the deaths of the workers (and others) in last year's oil spill? If the corporations in question acted as extensions of the will of its members, then the organizers, the managers, should be held responsible. Rights come with responsibilities, accountability. Without consequences, the same bad decisions can be made over and over again, and the only way to deter the corporation is to make the consequences so expensive that even vast multinational conglomerates would be unable to bear the cost. Even in such a case, if there are no consequences for the decision-makers, they are free to leave the corporation, divest themselves of all ties, and form a new corporation and carry out the same practices. While I have my reservations on corporate free speech, I would feel less trepidation about the issue if the consequences for corporate action were visited on those parties truly responsible, the natural persons directing the corporation.

More to follow, just watch this space.

Tuesday, April 5, 2011

A Mission statement, of sorts

What follows is a mission statement, a rough outline of the stance I tend to take in response to social issues, and therefore the stance I am likely to take in many of my posts. In its current form it is rough, a bit ranty, and somewhat incomplete. I really don't think it's possible for a rational person to sum up all of their views quickly, so I invite readers to simply tuck in for the ride and see where it takes them.

For now, this, I believe:

This blog will be a place for me to give air to ideas as I develop them, in hopes of working toward more refined arguments. The title refers to a general belief of mine that technology and technological advancement offer our most sure prospect for realizing ideals like justice, compassion, and liberty for all human beings. While moved by utopian dreams, my observation of the world has steeped me in cynicism. Political machines are hijacked by pirates and robber barons. Virtuous leaders fight entrenched systems of privilege, and markets provide the most benefit to those already advantaged. Social change cannot be legislated or enforced. It must emerge from the people themselves. Discrimination cannot be eliminated unless every person refuses to accept bigoted ideals, rejects them when they are presented in public, and shuns those who promulgate them. The challenge, then, is spread the memes of justice, egalitarianism, compassion, privacy, and freedom. Once those ideals have taken root, and individuals refuse to compromise on them, we will achieve our utopia.

Technology provides us the means by which those memes can spread. We now have the ability to connect every corner of the world. All we need is the will to do so, to reach out to one another across vast distances and make ourselves known to one another. Technology also provides the means by which we make our ideals reality. Replacing our human workforce with machines should free us from work, allowing us time to engage in intellectual, artistic, and recreational pursuits. Our livelihood need not be tied to our efforts. If there is not enough manual labor to go around, we should see that as a good thing, a benefit, a victory. Research and innovation must continue so that such goals can be realized.

As such, we must view technology as our path to nirvana, paradise, heaven. We will free ourselves by remaking ourselves and our environment so that we cannot be chained. Only through our own efforts will we realize our separate utopias. To craft ourselves in the image of what we can be, to craft our world, our universe, into the playground of our ideals, we must continue to learn about our reality and how to manipulate it. In this way, we will transform ourselves into living, cybernetic bodhisattvas and deliver the world from suffering.