SIVACRACY.NET

Today I am giving a short commentary talk at the Cultural Environmentalism at 10 conference at Stanford Law School. Here are my notes:

In Praise of Small ideas: Comments on Molly’s paper and Cultural Environmentalism

Siva Vaidhyanathan

I don’t know anything about property law. So I was struck and tickled when Molly introduced me to the phrase “the problem of the future.”

The future has many problems. So many problems.

Not to play Neil’s “what about the starving children” card, but binding our children from exploiting nature reserves should be far down on our list of concerns.

So I am not so hung up on the ways we bind our children. I am more concerned with how we empower our children. I can safely say they would be more upset if we did nothing.

As Molly properly concludes, information and culture are different. Property rights always bind the future. What matters are the particular effects of such binding.

As Molly recognizes, GPL and CC are different in nature and effect from other sorts of conservation easements. They are technologies that lock stuff open. They enable cultivation. The absence of them retards cultivation.

So they are not about conservation. They are about cultivation and proliferation. We should be critical of policy interventions, like the clumsiest efforts to protect traditional knowledge, that purport to “conserve” culture and information.

Molly’s paper makes it very clear that keeping binding analysis and debate about copyright within the assumptions and theories of property is not very useful. We must, we learn from Molly (as we learned from Jamie ten years ago) get beyond property talk. It’s a conversation closer.

This intellectual and political movement that we are here to examine and celebrate, which has taken many interrelated names – cultural environmentalism, free culture, etc., has been – appropriately enough, more than willing to borrow from other bodies of political or social theory and other political and social movements.

We have discovered, to no one’s surprise, that no grand theory fits us very well.

Property talk and commons talk do not map our concerns as we might expect.

Liberalism has its limits, as we discover whenever we consider the needs of the poor or examine whether we might imagine different regimes that serve their needs better.

Republicanism, my favorite source of wisdom, has the unsavory problem of paternalism built into it.

So we sample. We riff. We experiment. We revise. We improvise.

Our set of texts and theories is like Dolly Parton’s coat of many colors. We make do. And we do well. And the coat fits.

This is intellectual pragmatism. We judge ideas based on what they can do for us. There are problems with pragmatism, of course. But pragmatism works us for because the domains of our concerns change so quickly and profoundly.

We follow trends in technology, culture, global flows of information, concentrations of power. In all of these fields, the rules of the game have changed radically in just the past decade.

We still worry about software. We worry about shamans. We worry about spleens. But the particular questions have changed and proliferated since James Boyle walked us through the connections.

Last night at dinner Oren Bracha asked me what the next big idea is in this field.

I told him I could let him know, but I would just be showing off.

But the serious answer to Oren’s question is that there might not be a next big idea to guide us. There are clearly a hundred smaller theories, stories, and issues that matter more and do more good work than a big idea can. And that’s ok.

Cultural environmentalism as a response to proprietarianism seems like a big idea. It’s been flexible enough to carry us for ten years and inspire amazing experiments like Creative Commons. Over the past ten years those of us in this room and many, many others outside this room have been revising, extending, and deploying it. I’m not sure we need another big idea right away. It’s served us well.

But if you look back and remember what Boyle was trying to do, cultural environmentalism looks like a small idea. He was trying to solve a specific problem in both political theory and political reality: the collective action problem. He looked around. Saw a movement that had seemed to solve it (although as Jessica said last night, it’s not so clear that the environmental movement can claim that much success these days).

What’s winning? Cultural cronyism and corruption? A Christian Millenarianism of the net?
So cultural environmentalism is both a big idea and a small one.

I’m generally suspicious of grand theory and big ideas. While we should let theory and philosophy guide our questions, we must not let them constrain our answers.

Because the GPL was so brilliant, we tend to think of it as a big, grand idea. But GPL was a practical technology. It was intended to solve a particular problem. And it has been spectacularly successful.

It was not an application of cultural environmentalism. Richard Stallman released GPL version 1 in 1989. So we only claim GPL and its progeny as applications of cultural environmentalism after the fact. It’s ours because we sample it and riff off of it. It’s ours like the sound of the James Brown’s funky drummer belongs to every hip-hop artist and fan.

Let’s think for a moment about why Stallman thought the GPL necessary. Why was there a problem that had to be solved? What was the problem? The problem was the sudden rise of proprietary software that deeply offended the scientists who had given birth to the field of computer science.

GPL returns software to its default state: as a malleable and adaptable tool just as Creative Commons returns culture to its default state: practices and expressions that must be shared, revised, improved upon, and referenced. Culture is not culture if it stays put.

Culture is open source and open source is culture.

Many ideas work on big scale and small scale. Let me give you an example.

When I put on my big idea thinking cap, I see fair use failing all around us. I see that it’s too unpredictable to grant confidence to many creators. I see that we continually place very important goals and desires on a rickety scaffolding. And every time a major fair use case comes up I fear that the entire structure is going to collapse.

But when I put on my small idea thinking cap, I see a thousand examples of fair use still working, getting stronger, enabling and empowering some really cool things.

So as we move forward, I hope we can remember to imagine and consider the small ideas. And we should not let our big ideas suffocate the small ones.

That said, let me introduce a big idea. I call it “the technocultural imagination.”

When Alexis de Tocqueville observed American artisans he saw American culture devoid of artistic creativity as he understood it. Americans were too practical, too focused on their tools and technologies. American artists have spent more than 150 years trying to prove him wrong.

This is what I wrote in a recent article in the catalog for the Whitney Biennial:

The technocultural imagination is a state of expectation and assumption.
It’s an ideology of desire. We expect to be able to create our own sounds
and images using inexpensive tools. We assume we can communicate in
real time with collaborators and critics around the world for relatively
little cost. We get frustrated and annoyed when systems break down or
powerful interests interfere with such collaboration or communication.
The habits and desires of humans to connect and collaborate with one
another are not new. They are ancient. Only the awareness of possibilities
and expectations of results have changed in recent years, facilitated and
amplified to a large degree by new communicative technologies such as
the personal computer, the internet, and the mobile phone.

For those infused with the technocultural imagination, tangled, multi-
valent, often collaborative or collective authorship is the norm, not the
exception. The technocultural imagination is a global phenomenon fueled
by particular American experiences and ideologies—techno-optimism,
civil libertarianism, and, to a lesser extent, neoliberalism—that are no
longer provincial or national. And despite decades of worrying about the
“two cultures” of art and science, the technocultural imagination demands
engagement with, rather than repugnance for, science and technology.
The technocultural imagination also generates an awareness of the
possibility of real global connections, movements, and idea flows. This
awareness has political potential. Although it has never been fully real-
ized, politics informed by the technological imagination would resist
authority by swarming and confusing it. The technocultural imagination
ensures that membranes between and among authorities (academics,
critics), cultural producers (authors, artists, coders, hackers), and audi-
ences (publics, citizens, consumers) are permeable. Hierarchies can be
tumbled and overturned.

It’s not just that the technology has changed. It’s that our expectations and imaginations have changed. Our needs and desires have changed. And they have informed our technologies. Our habits, technologies, and laws are in constant tension and conversations. Categories familiar to Toqueville are no more.

This is why I have a hard time following comparisons between real property and copyright. I see copyright as a regulation of imagination. It’s a necessary regulation. But imaginations are very delicate ecosystems.

To regulate imagination properly demands very different assumptions and technologies. The GPL and Creative Commons licenses are technologies that allow imaginations to bloom and cross-pollinate.

So let’s keep this fruitful feedback loop going between big ideas and small. And let’s let all ideas, big and small, bloom brightly.

The problem of the future is that we idiots might have something to say about it. But there is really not much we can do about that. So let’s just accept that responsibility and do our best.