I enjoyed reading Code 2.0, mostly because (and I never thought I’d ever hear myself saying this) it was refreshing to hear the consitutional lawyer’s opinions and perspective over a bunch of over-stimulated technologists/academics.  Yes, friends, Hell has just frozen over.

What I really enjoyed the most was his allegation that in our new reality – specifically in cyberspace – we can simply ‘recode’ the situation if we don’t like the laws of the universe we’re operating in.  Especially since Web 2.0 is a highly interdependent and contributory medium (one in which everybody not only brings their own content but also can bring their own programmatic coding which may or may not rely on multiple websites and APIs for functionality), you can literally reprogram the virtual space you are in to obey the laws you want.

I felt like, in the section on translation, he was indicting constitutional “originalists” quite fiercely.

This kind of translation speaks as if it was just carrying over something that has already been said.  It hides the creativity in its act; it feigns a certain polite or respectful deference.  This way of reading the Constitution insists that the important political decision have already been made and all that is required is a kind of technical adjustment.

Constitutional Originalism, popularized in recent years by Justice Scalia and now coopted (at least in part) by conservative political factions, presupposes that one can actually guess what the founder’s original intent was; and lawyers (above all others) should understand the difficulty in proving intent even for the living (no less, the intent people who lived over 200 years ago).

Perhaps I’m revealing my own biases here, but I do believe that laws have to be made given the present reality, and I believe that Lessig makes a nice case as to the perils of too-simply translating old beliefs into the new, virtual world.  As Lessig points out, in the late 18th century, while the founders saw the need to protect citizens from government trespass into their personal property space, they put no such limit on the public space.  And now, the debate continues to rage over whether the Internet is an inherently public or private space, who owns the data that is put thereon, and what means of legal recourse governments and individuals can expect in this new reality.

In the chapter on copyrights, Lessig opines that the pendulum is certainly swinging in favor of copyright holders and the public space perception; that cyberspace is a place to be policed.  I do believe it is, but it is also a place that needs to be policed through the front door.  We need statesmen who will courageously define the virtues and vices of governance in this space, rather than politicians who are bought and sold by corporations and copyright interests – whose primary motivation is control.

As Lessig points out, though, we have seen a change of the “code” since the DMCA was put into place.  The implementation of the law, in some ways, backfired on the corporations and government that ended up implementing it.  We now see that most music providers who used the draconian DRM measures have now backed off and simply watermark purchased files with the licensee’s information.  They have responded to consumer demand for open formats over the control that was promised and delivered through DRM.  I count this up as a win for consumers.

Video is next in this space.  What mp3s were in the late 90’s, videos are today.  Netflix is certainly the first to effectively and massively commoditize this space (sorry Apple), but they are hawking a subscription model rather than a content ownership model.  While this can be a good deal for consumers, it leaves ultimate control in the hands of the corporation, who simply can’t be trusted to make all the right choices that all the consumers will agree with in the long run.  Since consumers aren’t owning the content one has to wonder – how long can they hold a market lead?  Until the network speeds up a bit more (it’s underway) will this finish playing out.

While reading the Shirky book, I couldn’t help but think back to an episode in my life, about 3 or 4 years ago, when I decided I wanted to get Lasik surgery.  I visited a local doctor’s office (you know, the one who had the overly aggressive advertisements that he had done the most Lasik surgeries of anyone in the world) for their free screening.

To make a long story short, the “free” screening ended up costing me $150 even though I walked out of the office having decided against this particular doctor and the surgery in general given my eyesight and medical history.  When I discovered they had cashed my “deposit” check, I was furious.  My first reaction, other than to complain to my mother (who happened to work for a doctor who did these surgeries), was to register the domain name “butcherbooth.com” and post all about my horrific experience in his “free” screening.  I started working out elaborate plans in my head of how I would rally the Internet to my cause and singlehandedly put this terrible doctor out of business.

My rage calmed, and I actually opted for the more structured, organizationally centered response; documenting the experience and getting my money back through my bank.

Of course, the documentation was riddled with empty threats of reporting them to the Better Business Bureau, the American Medical Association, etc etc etc.

My recollection of this experience came as I read the opening of the book in which someone successfully (maybe too successfully) gets my intended reaction over a misplaced cell phone.  One would think, in that particular situation, that ‘finders keepers’ would be a sensible solution to consoling your feeling of losing a $300 phone.  However, the loser’s friend decided to amp up that feeling to a whole ‘nother level…

Considering the power of the group, and the ability the group had to terrorize the poor girl who ended up with the lost cell phone, Shirkey’s analysis later on struck a chord:

Networked organizations are more resilient as a result of better communication tools and more flexible social structures, but this is as true of terrorist networks or criminal gangs as of Wikipedians or student protestors. (Shirky, 210)

The issues of cyber-bullying quickly come into focus.  Even though it would feel good to disproportionately strike back at the injustice I felt over my lost $150, is it right to destroy a man’s whole practice over it just because I have the technical capability to do so?  Considering these situations and others suggested in the book, it becomes clear that the web’s version of justice is clearly not the same as the “blind justice” ideal our society has tried to achieve with her blindfold and scale.  Justice on the web is never balanced, fairly applied, or monitored in any way.  In fact, you can rarely even see the full picture since factions tend to be navel gazers, infinitely linking to other individuals and opinions that only align with theirs.  Indeed, “fair and balanced” is a pipe dream both in traditional media and new media.

Looking back, I still wonder what the result of my efforts would have been.  The blog was a well-established technology, so it clearly passed the Shirky’s initial test:

Communications tools don’t get socially interesting until tehy get technologically boring.  … It’s when a technology becomes normal, then ubiquitous and finally so pervasive as to be invisible, that the really profound changes happen (Shirky, 105)

Still, though, I lacked the built-in social ties to bring it completely to fruition.  I suspect it would have taken some pretty active recruitment, as I had trouble even among all my friends of getting equally negative sentiment built up as I had felt.  Most of them had the surgery from him or another doctor with similar results.

Perhaps my expectations were just too high to begin with?

Shirky gets a little problematic to me in a few places where, perhaps due to the copyright date of the text, he neglects to acknowledge the “nowness” of the new social media tools.  Facebook, Twitter, and even Blogs (which he covers in great detail) don’t only follow the “publish, then filter” model, but they also highly favor what is going on now vs what might have happened in the recent past.  The quality of the publication is not longer a question as the “now” tools of the status update tend to favor short burst of real time thought or multimedia presentation (video or photo) of the event itself.  Editorializing is now done in 140 characters or less, lending itself less and less to prose and more and more to poetry.

All in all, though, I like the Shirky book and think it has great coverage of the implications of the changing media landscape.