twinning injustice, one social structure at a time

This post is archived at my new site, making edible playdough is hegemonic. Go here: http://www.jennamcwilliams.com/2010/07/02/twinning-injustice-one-social-structure-at-a-time/.

My sister, who just finished absolutely destroying her first year of law school, recently announced an interest in pursuing criminal prosecution. Once I overcame my instant misreading of her announcement (don't blame me; I'm not a morning person), I figured out pretty quickly that my twin sister and I are pursuing vocations that spring from the same moral impulse. To wit: I must serve and defend people who have suffered or will suffer at the hands of others.

It's just the name--prosecution--that throws us off, makes us think prosecutors are out to punish the bad guys. In certain respects, of course, that's exactly what prosecutors do--that's exactly the power we confer to them. But the public interest in punishing the bad guys is an outgrowth of a deeper public impulse: To maintain the social order, to protect our citizens from injustice and victimization, to fight for the good guys.

Protecting people from injustice and victimization. Fighting for the good guys. That's pretty much what I like to think I'm doing, too, by working in the service of working class kids and kids who are deeply undervalued and underserved by a system that is not designed to help them. I work in defense of those kids. And another way to frame that work is to say that I am a public prosecutor, building a case against a system that's criminally unjust, criminally cruel.

But here's where I think Laura and I part company: I believe we need to demolish the social order. I believe that the public education system is deeply, perhaps fatally, flawed, especially for poor kids and minorities, and I believe we need to work to tear it down. That's the wheel I'm throwing my shoulder against.

Though we haven't explicitly talked about this, I'm pretty sure my sister believes the criminal justice system is similarly deeply, deeply flawed (see here, here, here, and here)--but it seems to me that her stance is something like "this is the best system we have right now, the only system we have, so we need to use it to protect the innocents and the victims."

I'm all, fuck the Man and the horse he rode in on! And my sister's all, yyyeah that's nice but lookit all these victims who need protecting and defense right now. And I'm all, Yes! And let's muster up an army made up of those victims and march with them right to the gates of hell if that's what it takes! And my sister's all, um, okayyy but this woman was raped and that guy's son was murdered and this woman was stabbed by her partner and what if we put aside the anger and try to take care of the people who need us right now?

Details, details, right? Laura and I agree that the world is all effed up, and we agree that we are therefore bound to the work of un-effing up things. The rest is just planning.

on sexism and gender performance: it's the bathrobes that's outrageous?

There's a nice little conversation going over at really? law? about masculinity, gender performance, law school, and competition.

The post, which was written by my sister Laura McWilliams in observance of International Women's Day, describes her experience as a female law student. As she explains, her male classmates are the ones who shout her down, who silence her; she writes:

I can’t say for certain that this is about gender, but I can say that I’ve often been dismissed, insulted, or shouted down by men, but only once, since I started this thing, by a woman. Not every man has acted this way, but nearly every person who has acted this way has been a man.

She does add, however, that she hasn't thought much about how men perform gender, and specifically about "the anxiety that comes with being a man and proving one's manhood":

I always separated in my mind the competition between men and women and the competition between men and men. One was about domination; the other was about bonding. Now I’m thinking that I was nowhere near right. The two are more mixed up than that. I’ve only recently begun trying to synthesize the two.

Men’s interactions are about performance–right?–in a way that’s different from how women perform. Men are constantly proving their gender, while women are forced to try to prove–I don’t know, their lack of gender?

The post has received several comments from male readers, and the set of comments by someone who calls himself "passer by" were especially interesting to me. He begins by arguing that women are far more competitive than men are:

I’d challenge the notion that males are more aggressive that females. And I have given it more than a passing thought. Both are more than capable of aggression, at equal levels.

Competitive? I’d say your (sic) wrong, sorry. Both men and women are competitive, but men more often acknowledge when they loose (sic), and let it go on the spot. Maybe with a bit of rude behavior, but that’s it. Women tend to find a way to bring it back around, go after revenge, and throw some vengeance in to boot.

This writer argues that women are more competitive, more vicious in their gossip, and more "catty"; in fact, he writes,

Cats are both masculine and feminine, but how many men do you know that are “catty?” How many men gossip in a way that undermine the credibility and reputation of women, or other men? Far more women tend to expend energy on such things.

Over the course of a multi-comment exchange between Laura and this commenter, she gently suggests that the "cattiness" label is part of how women are disempowered, then follows him as he changes the subject to sports, stereotyping of all men based on how a minority behave, and biological differences that he believes prove that men and women are just different--they just are. He writes:

Yes, environment plays a huge role. But any 8 year old can tell you boys and girls are born different, and anyone who has forgotten that fact hasn’t looked in their pants in far to long. To try to “discover” there are biological differences is a hysterical concept to me. It’s not news that sexual organs are the only distinguishable differences, so are hair patterns, hormones, and emergence differences that are apparent. To think that this doesn’t affect mood, attitude, aggression, and ultimately social perception is just naive.

Laura's willingness to engage with this commenter, and to consider his arguments thoughtfully and carefully, led to a lengthy and perhaps productive conversation about gender. But I was struck by how hard Laura seems to have had to work to make this happen. The notion that "cattiness" is an apt term for women but not for men is just...well, it's blatant sexism, is what it is. And the commenter argues that sports are to blame for turning men competitive, but somehow overlooks the inherent sexism in the fact that society "encourage(s) boys to play sports more than girls."

Yet, by letting these comments pass, Laura makes it possible for the commenter to post an interesting argument: that all men get blamed for the sexist behavior of "a small minority"--in his view, maybe 20% of all men.

Which is a powerful point that's well worth discussing. I'm not willing to go so far as to agree that sexism is only evident in 20 percent of all men, but it's clear that not all men engage in sexist behavior, and that not all men who do engage in sexist behavior do so all the time.

The problem, really, is this: Even if less than 20 percent of all men engaged in sexist behavior, we still live in a culture that not only encourages but rewards that kind of behavior. Which means that this "small minority" has a distinct advantage when it comes to not only sports but education, work, and access to advancement opportunities.

Women and men alike should be outraged by this. It means that women and men alike are being forced to play a game that, all things being equal, they would probably choose not to play; it means that the rules of the game are being set by a small subset of our culture; it means that if you, male or female, choose to opt out, you're setting yourself up to walk a rockier path than you might otherwise take.

Sam Seaborn: Where'd you get the bathrobe?
Carol Fitzpatrick: The gym.
Sam: There are bathrobes at the gym?
Claudia Jean 'C.J.' Cregg: In the women's locker room.
Sam: But not the men's.
C.J.: Yeah.
Sam: Now, that's outrageous. There's a thousand men working here and 50 women.
C.J.: Yeah, and it's the bathrobes that's outrageous.

From  "The West Wing: Bartlet's Third State of the Union (#2.13)" (2001)

NRA types should maybe just be quiet for a while: some thoughts on the University of Alabama shooting

I find it painfully appalling that some people are using the recent shooting on the campus of the University of Alabama-Huntsville to make arguments for looser gun control policies.

Details are still somewhat sketchy, but it appears that the perpetrator was a faculty member who was denied tenure. Biology professor Amy Bishop apparently brought a gun to a faculty meeting and, after learning she had been denied tenure for the second time in her career at Alabama, opened fire on her colleagues. Three people were killed and three others were wounded.

It beggars belief to hear some people arguing that the solution to incidents like this is actually more guns. According to msnbc, one student at the university said that she had requested that students with gun permits be allowed to carry their guns on campus and was turned down.

“I’m scared to go back to school,” (the student) said. “However, if they were to allow me to carry my pistol on campus, I would not be as scared.... I’m sorry that nobody in that room had a pistol to save at least one person’s life."

To sum up, here's the argument that the above student and others like her are making: that we need to allow more people to carry more weapons in more places. I reject outright such a monstrously irresponsible stance. Giving more people access to more guns is what makes America the gold-medal winner in First-World Gun Deaths.

And I don't want to hear the argument that stricter gun control laws won't stop gun violence since criminals and emotionally disturbed people like the woman who allegedly carried out yesterday's campus shooting will always find ways to get their hands on weapons. That may very well be true, but looser gun control laws only make it more likely that those people will get their hands on weapons, while increasing the likelihood of more deaths resulting from their attacks.

Are you going to tell me that if anybody at that faculty meeting had been carrying a gun, they would have had the presence of mind to pull it out, aim it, and take a shot before Bishop opened fire?

Are you going to tell me that putting guns in the hands of young adults who are passing through some of the most emotionally tumultuous times in their lives is by any stretch of the imagination a smart idea? Drunk kids at house parties? Young romantics who have been spurned by the targets of their affections? Academically ambitious students for whom the C they just received in a class may end their dreams of becoming a lawyer or doctor?

Using shooting rampages to argue for looser gun control laws not only makes for a really bad argument, but it's also socially irresponsible to an appalling degree.

Lawrence Lessig on getting our democracy back

I have stated that I believe campaign finance reform to be the most significant political issue of our era. The issue was made even more pressing by the recent Supreme Court decision overturning a century's worth of effort toward pushing lobbyists back out of politics.

Lawrence Lessig, who is perhaps the best legal thinker we have going today, makes his unbelievably compelling case for campaign finance reform in the Feb 22 issue of the Nation. He rails against

[t]he choice (made by Democrats and Republicans alike) to leave unchecked a huge and crucially vulnerable segment of our economy, which threw the economy over a cliff when it tanked (as independent analysts again and again predicted it would). Or the choice to leave unchecked the spread of greenhouse gases. Or to leave unregulated the exploding use of antibiotics in our food supply--producing deadly strains of E. coli. Or the inability of the twenty years of "small government" Republican presidents in the past twenty-nine to reduce the size of government at all. Or... you fill in the blank. From the perspective of what the People want, or even the perspective of what the political parties say they want, the Fundraising Congress is misfiring in every dimension. That is either because Congress is filled with idiots or because Congress has a dependency on something other than principle or public policy sense. In my view, Congress is not filled with idiots.

This article is called "How to Get Our Democracy Back," but the title's misleading: Lessig appears near to throwing his hands up in despair. There's a petition being passed around (and a link to sign the petition closes the article); there are passing references to what Lessig appears to see as our last best hope at reform--especially since, as Lessig argues, the promises of President Obama's campaign have fallen far short of the results he has delivered. He explains that the Obama administration

has stepped down from the high ground the president occupied on January 20, 2009, and played a political game no different from the one George W. Bush played, or Bill Clinton before him. Obama has accepted the power of the "defenders of the status quo" and simply negotiated with them. "Audacity" fits nothing on the list of last year's activity, save the suggestion that this is the administration the candidate had promised.

I have no words of hope to finish this post off. When I think about these things, I start to feel like I did in the days immediately following the 2004 election, when more than 50 percent of the American electorate told Bush to stay right where he was. I couldn't believe it. I couldn't believe it.

I still have faith in President Obama, renewed some by the roar we've been seeing from him in the days following his recent State of the Union address. But for right now at least, I don't want to think too hard about how his performance so far measures up to his promise. I'm worried the same yawning chasm of despair will open up and swallow me. I don't think I could continue to stand under the weight of that disappointment.

george w. bush reaches one rotting hand from the grave

I believe campaign finance reform is the most important issue in contemporary American politics. The unfettered ability of corporate and interest-based groups to maintain or remove politicians is the reason behind every evil, bigoted, and short-sighted law our legislative bodies pass. It's the reason behind the slow pace of the political machine. It's the reason so many Americans feel there's no point in voting since they don't really have much of a say in who wins anyway. (And they're right to feel so.)

Now the Supreme Court of the United States has cleared the way for lobbyists and Big Business to grab even more control of our laws and our land by ruling, 5-4, to overturn previous campaign finance reform laws limiting the amount organizations could donate to political candidates.

President Obama said the ruling was "a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans."

Obama is right. This is a dark, dismal day for American politics. The Supreme Court's ruling has plummeted us back into the cesspool of corruption that we've spent a century trying to clamber our way out of.

The Bush administration, with its installation of a pair of corrupt, rightwing and deeply shortsighted justices, can claim its credit for this ruling. History will label the Bush tenure the last bastion of an era of brazen corruption, greed, and reckless narcissism. For those of us who loathed George W. Bush and his lackeys from the get-go, this cannot come soon enough.

It also won't feel anything at all like sweet revenge. We're all mired in the shit now, regardless of who we voted for.

Lawrence Lessig's Educause 2009 keynote

If you are an educator, new media activitist, or copyright law hobbyist and you plan to watch only one video this month, I've found the video for you. This is video from Lawrence Lessig's keynote presentation at the Educause conference this month.

Lessig, a Harvard law professor and a founder of the Creative Commons Project, wonders why citizens treat the law with such reverence when even lawyers approach the law with deep skepticism. He argues that it's time for citizens--especially citizens working in education and science--to approach copyright law with skepticism. He does acknowledge that for much of our cultural history copyright law was a "necessary evil," but that:

The thing to remember about necessary evils? They're still evil.

Here's Lessig's talk. You're going to love it. (If you want to watch a version that lines up, across multiple panels, footage of Lessig giving the talk alongside the slides he's showing the audience, you can click here [requires Silverlight download].

new media literacy with an attitude

In an act that feels like the intellectual equivalent of flipping through old photo albums, I recently re-read the Project New Media Literacies white paper, Confronting the Challenges of Participatory Culture: Media Education for the 21st Century.

That white paper (now, FYI, a book published by MIT Press) was the guiding force behind all my work for the two years I spent with ProjectNML, first as an education outreach coordinator and then as a curriculum specialist. Now, as an emerging learning scientist (and a kind of social justice-y one, at that), I've had the chance to reconsider the piece through a fresh, clean lens. I'm still a fan, though from my new outsider's perspective I find myself leaning on some problem areas along with admiring the core of this paper's intellectual work.

the awesomeness: a nod to open source culture
First, and to my great surprise (I had not remembered this), the white paper actually describes the new media era as "an open-source culture based on sampling, appropriation, transformation, and repurposing" (p. 20). The authors argue that "we must push further" in considering the social aspects of literacy, especially in a culture that increasingly values collaborative knowledge-building and collective meaning-making.

Readers of this blog know that I embrace the free/libre/open source movement as a crucial driver of real and lasting social change, so I'm thrilled to see this nod to open-source culture.

In general, however, I'm disappointed that this notion is not taken further. Perhaps this paper aligns more with the open-source contingent than with the free/libre contingent. The difference, briefly, is that open source adherents generally want to see better products made available to more people, and believe that opening up the source materials will support this; free/libre adherents generally believe in making source materials available so as to destabilize economic, political, and cultural institutions. As a free/libre kind of guy, I can attest that there are those who might worry that the key tenet of this white paper doesn't go quite far enough:

Not every member must contribute, but all must believe they are free to contribute when ready and that what they contribute will be appropriately valued.

Too often, the rules of contribution are set nearly in stone before any potential contributor comes along--which means that questions of what will be contributed, and by whom, and where, and why, and so on have been decided by some vaguely defined powers that be. In America and many Western countries, this isn't an issue of literal censorship; it's more a question of paradigm. Take, for example, the recent finding that 87% of all Wikipedia editors are male. Or consider the dearth of women in the open source movement. Or what about Anna Everett's argument that "[f]rom 1995 to the present...the structured absences of black [and by extension other minority] bodies that have marked most popular imaginings of the brave new world order were in danger of reifying [or naturalizing] an updated myth of black intellectual lag, or black Technophobia"?

on participatory democracy
Which brings me to my next point: Considering the nature of "participation." Having worked with Henry Jenkins directly for two years, I know how deeply he values civic engagement. This includes political involvement as well as the kinds of everyday interactions in which consumers-turned-producers engage. I happen to know that his current project is focused on a consideration of "participatory democracy," which good lord, I can't wait to read what comes out of the ethnographic work he and his team are working on now.

The New Media Literacies white paper doesn't go far enough in this area. It couldn't possibly, of course, since it provided the groundwork for Henry's current focus on civic participation. My concern, though, is that this paper is being taken up in so many ways, by so many different types of people, and with such great force, that it may be interpreted as the definitive argument about new media education. As such, it merits a caveat.

This paper does give a brief nod toward the notion that "civic participation" may not necessarily be about politics, by explaining that

the new participatory culture offers many opportunities for youth to engage in civic debates, to participate in community life, to become political leaders, even if sometimes only through the “second lives” offered by massively multiplayer games or online fan communities.

In the end, however, this section of the white paper asserts that the primary goal of a civics education is "to help learners to connect decisions in the context of our everyday lives with the decisions made at local, state, or national levels."

Political engagement is about more, much, much more, than elections and the law. Indeed, as Jennifer Earl and Alan Shussman argue, in a culture where corporate entities have an increasingly powerful and important role in the lives of citizens, many people "are protesting against corporations themselves in hopes of directly changing corporate policies or products." This is, as I wrote in an earlier post,

the new model of civic engagement, a type of activism that goes largely unrecognized by political scientists, cultural theorists, and pollsters but that offers a new model of democratic participation—the struggle over ownership and definition of public spaces, both physical and virtual. It's hard to identify, harder to measure, because it's deeply integrated into the everyday activities of an entire generation whose lives, identities, and self-making increasingly extend into virtual spaces.

Part of the difficulty in designing and defining civics education is that learners don't seem to care about politics--why should they care about something that Jenkins et al. rightly identify as something happening far outside of their spheres of consequence, when they have so much more power, so much greater ability to influence decision-making, within the social networks, the community spaces, that they navigate online every day? Facebook users, angry at a change in their terms of service contract, pushed back hard enough to get admins to reverse their stance. MySpace users have worked for ad-free zones. Fans of TV series have successfully petitioned to keep floundering shows on the air long past their intended expiration date.

Like it or not, this is civic engagement too, and it has its value alongside of the kinds of actions that push for health care reform, election or rejection of politicians, and the overturn of unjust laws.

...and a word on copyright, intellectual property, and breaking the law
I do not know Henry's official stance on copyright laws and intellectual property, but this white paper appears to take a fairly conservative view on these things. In addressing the new media literacy practice of appropriation, the authors write:

Artists build on, are inspired by, appropriate and transform other artists’ work. They do so by tapping into a cultural tradition or deploying the conventions of a particular genre. Beginning artists often undergo an apprenticeship, during which they try on for size the styles and techniques of other,more established artists. Even well established artists work with images and themes that have some currency within the culture. Of course, this is not how we generally talk about creativity in schools, where the tendency is to discuss artists as individuals who rise upon or stand outside any aesthetic tradition....

Many of the forms of expression that are most important to American youth accent this sampling and remixing process, in part because digitization makes it much easier to combine and repurpose media content than ever before.... Despite the pervasiveness of these cultural practices, school arts and creative writing programs remain hostile to overt signs of repurposed content, emphasizing the ideal of the autonomous artist. Yet, in doing so, they sacrifice the opportunity to help youth think more deeply about the ethical and legal implications of repurposing existing media content, and they often fail to provide the conceptual tools students need to analyze and interpret works produced in this appropriative process. (pgs. 32-33)

Let's take this one step farther: Sometimes, creative appropriation is mistaken for copyright violation; and, importantly, some things that would currently be considered copyright violation are simply a product of a legal system threaded through with corruption and corporate greed (cf. the Disney Corporation). Sometimes, people purposely violate intellectual property and copyright laws for political purposes. Indeed, scads of creative types oppose the current copyright system, steeped as it is in corruption and corporate domination. There is great value in teaching not only the longstanding tradition of appropriation but also the political ramifications of appropriative practices.

I was recently called a conspiracy theorist by a colleague. I wasn't offended: I am a conspiracy theorist. I believe that a deep if largely unintentional conspiracy exists whose goal is to help maintain the status quo at all costs. The institution of education is an important element in achieving this goal; it transmits a set of core values, beliefs, and discourses that allow continued cultural domination by a vastly outnumbered subset of our culture. There is deep value in challenging our culture's primary Discourse, even if a complete overthrow would be impossible (and maybe even undesirable).

About a year and a half ago, I heard Ernest Morrell call media literacy "a matter of life and death" for the urban youth he works with in Los Angeles. At the time, I thought he was exaggerating for effect. I no longer think he was exaggerating.

confession: I don't understand Creative Commons

I mean, I get the basic idea: that instead of thinking about individual ownership rights to content, we can and need to start thinking about how to participate in collaborative communities. Creative Commons is a set of copyright categories intended to say to other people: I abide by copyright law and want you to know that I'm making my work freely available for repurposing, remixing, and sharing.




What I don't get is...well, okay, I guess I don't understand copyright law very well at all. I'm among the countless hordes who shamelessly rip songs, videos, and images and repurpose them without regard to copyright or fair use issues. (Interestingly, though, and in what I can only assume is a holdover to the antiquated notion of genius residing in a single individual, who is solely responsible for the content that erupts from his or her brilliant brain, I do my very best to respect authorship and ownership rights over print texts.) I mean, is it legal for me to copy an image from a google search and embed it in a blogpost? Is it ethical (never mind legal) for me to pwn a YouTube video and toss it into a Keynote presentation? It's not true, right, that illegally downloading a movie is like stealing a handbag? Right?



I'm unbelievably lame. So lame that there are heatwaves of lameness issuing from all around my person.

Still, this is perhaps a call to action for the kind folks at Creative Commons. I'm pretty much on board with the CC mission, and I've even engaged to an extent with Creative Commons licensing in my (now former) position at Project New Media Literacies. Yet here I am, eager but clueless when it comes to copyright.

May I suggest a guerrilla marketing campaign that's riveting enough to keep viewers' eyes drawn to the product and clear enough to offer a laundry list of the product's most appealing features?

Blogwatch: Cool blog about the law school experience

I've found a fantastic new blog on the ups and downs of law school.

Well, more accurately, so far the blog is about the ups and downs of getting ready to go to law school.

The blog is called Really? Law?, and it chronicles the careening emotions that surround the commitment to attending law school. The author was given a full tuition scholarship to attend Suffolk University in Boston; her posts include musings on her shift away from art (she studied painting) and toward a career in law; the decision to attend a so-called "Tier 4" school instead of the more highly ranked schools that accepted her; the mixture of fear, trepidation, and excitement she feels about the start of law school; and her take on legal issues in the news.

What's most interesting about this blog is that it presents a refreshingly honest take on the challenges of embarking on something really hard, while reaching out for support, advice, and reactions from readers. Here's a sample post, called "Is this normal?"

I'm dreaming about law school.

I'm not just dreaming about it; I'm having nightmares. Many of them. Every night. Some are typical: last night I dreamt I couldn't find my section of the first law class of the day. See, I'd forgotten to attend orientation and never even SAW my class schedule.

OK; typical.

But I also had a dream about moving to my new apartment. I had so many boxes of stuff that the tiny studio had no room for a desk. Clearly, then, I wouldn't be able to complete my schoolwork.

Somewhat typical. I guess.

Then I had a dream that I ate so much pizza the night before school (those damn nerves) that the clothes I'd laid out for the first day of class didn't fit the next morning. I pulled out my loosest clothes but then the boxes that were crowding me out in the second dream reappeared and I couldn't find a mirror. I think you can see where this is going.

Anyone else have that dream? Anyone? Anyone?

I should maybe also mention that the author of this blog happens to be my twin sister. This is us:

Breaking: Sony Entertainment CEO Michael Lynton "cannot subscribe to the views of those online critics who insist that I 'just don't get it' "

Subhead: Sony Entertainment CEO Michael Lynton just doesn't get it.

Michael Lynton wants guardrails for the internet in the name of preserving creativity. At least, that's what he says he wants. If you read his recent piece in the Huffington Post, you quickly understand that what he really wants is to preserve his company's ability to profit from the creativity of others.

Lynton went viral after making the following assertion: "I'm a guy who sees nothing good having come from the Internet. Period." And in the HuffPost piece, he explains that he welcomes the "Sturm und Drang" that resulted from that statement, because it allows him to make the following point:

the major content businesses of the world and the most talented creators of that content -- music, newspapers, movies and books -- have all been seriously harmed by the Internet.

He's right, of course. But any attempt to roll back the appropriation, remix, and--sometimes--piracy practices enabled by new media will fail, and one big reason for this is that people like Lynton can't see that the internet simply cannot be regulated the way we've traditionally approached culturally transformative inventions.

Lynton compares the Internet to the national highway system developed under the Eisenhower administration. He explains the comparison thus:

Contrast the expansion of the Internet with what happened a half century ago. In the 1950's, the Eisenhower Administration undertook one of the most massive infrastructure projects in our nation's history -- the creation of the Interstate Highway System. It completely transformed how we did business, traveled, and conducted our daily lives. But unlike the Internet, the highways were built and operated with a set of rational guidelines. Guard rails went along dangerous sections of the road. Speed and weight limits saved lives and maintenance costs. And officers of the law made sure that these rules were obeyed. As a result, as interstates flourished, so did the economy. According to one study, over the course of its first four decades of existence, the Interstate Highway System was responsible for fully one-quarter of America's productivity growth.

We can replicate that kind of success with the Internet more easily if we do more to encourage the productivity of the creative engines of our society -- the artists, actors, writers, directors, singers and other holders of intellectual property rights -- yes, including the movie studios, which help produce and distribute entertainment to billions of people worldwide.

It makes sense for someone like Lynton to compare the internet to a literal highway--he, and many of his ilk, continue to think of the internet as an "information superhighway" that can be maintained and paid for via a simple system of tolls, speed limits, and regulations on what kinds of vehicles will be allowed to operate, and when, and by whom. This is precisely why the information superhighway metaphor has fallen into disuse by the majority of internet users: It simply does not apply to a system that is far more complex, and far less regulated and regulatable, than the metaphor suggests.

Mind-bogglingly, Lynton believes that "without standards of commerce and more action against piracy, the intellectual property of humankind will be subject to infinite exploitation on the Internet." He wonders:

How many people will be as motivated to write a book or a song, or make a movie if they know it is going to be immediately stolen from them and offered to the world with no compensation whatsoever? And how many people whose work is connected with those creative industries -- the carpenters, drivers, food service workers, and thousands of others -- will lose their jobs as piracy robs their business of resources?

Seriously? The head of one of the most new media-reliant entertainment companies in the world is so oblivious to the creativity that is enabled by social media that he really, honestly believes that the social practices that are emerging around these technologies are going to destroy humanity's creative impulse?

On the other hand, this is perhaps an apt approach for the head of a company that makes its bones on defining creativity as "stuff that can make money for whoever owns the rights to it (e.g., Sony Entertainment)."

Lynton would have us believe that he's in this fight for the good of mankind, that he and others like him are humanitarians along the lines of this cartoon I pirated from the internet:



Alternately, we might view his motives as more closely aligned with this cartoon I pirated from the internet:



Lynton wants us to know that he is not a Luddite, not "an analogue guy living in a digital world." I am fully convinced of that. I also believe that his impulse to set up internet guardrails is not quite as humanitarian as even he himself might think. He seems to be confusing the notions of "creative impulse" with "the drive to make money off of creativity." As anybody who's been paying attention for the last couple of decades knows, in the internet era, these aren't the same thing. They aren't even in the same category. If that makes it harder for behemoths like Sony to survive by standing on the shoulders of the creative types it exploits, then so be it.

bigot update

They're still losing.
For the first time in American history, someone has been convicted under a state hate crime statute for the murder of a transgendered person.




Allen Andrade, 32, was convicted today in a Denver court of first-degree murder and a bias-motivated crime for killing Angie Zapata, 18, in 2008. Andrate met Zapata, a transgendered woman who was biologically male, online and spent three days with her in Zapata's Greeley apartment prior to bludgeoning her to death with a fire extinguisher. For a sense of just how heinous Andrate's actions were, lookit CNN's summary of the police affidavit from the trial:

According to [the] affidavit Zapata was out of the apartment when Andrade noticed photographs that made him "question victim Zapata's sex."

Andrade confronted Zapata, who declared, "I am all woman." Andrade then grabbed Zapata and discovered male genitalia.

According to court records, Andrade told police he began hitting Zapata with his fists, knocking her to the ground. He then grabbed a fire extinguisher and twice hit her in the head.

Andrade told police he thought he had "killed it," referring to Zapata, and covered her with a blanket. Realizing what he had done, he then cleaned up the crime scene, the affidavit said.

Andrade told police he heard "gurgling" sounds coming from the victim and saw Zapata sitting up. He hit her again with the fire extinguisher, he said, according to the affidavit.

To repeat: When asked, Andrade said he thought he had "killed it"--"it" referring to Angie Zapata, an 18-year-old woman. Here she is:



In 2007, both houses of Congress passed a federal hate crime bill called the Matthew Shepard Act, but it died after famous homophobe and former President george w. bush threatened to veto it. Representatives have re-introduced the bill after President Obama indicated his support for the law.

I can't decide what's worse: Killing one woman in a homophobic rage or refusing to protect thousands of other Americans from the threat of people like Andrade.

Excuse me while I go all John Lennon on you

Over at Adbusters headquarters, the One Flag competition--a contest intended to present to the world a single flag for all--has resulted in a clear winner: This flag created by Marc Arroyo Ortiga from Berlin.




Adbusters, an organization that refers to itself as "culturejammer headquarters," has invested its resources in the argument that things might have been otherwise (despite an almost unbelievable misstep in the One Flag contest, about which more below). The description of the One Flag competition presents a nice example of how Adbusters goes about the work of imagining that otherwise world:

Design is at war with itself. We are taught that design is about finding solutions. But the success of these solutions is judged so narrowly – Did it ooze desire? Did it shift units? – that we find ourselves implicated in problems far greater than the ones we solve. The time has come for a radical shift in priorities. We are now faced with some of the most daunting global challenges in human history.

These are real targets, worthy of our problem-solving skills, ripe for our intervention. Yet those who have the vision to rise above national and political boundaries still have no symbol to rally under. We invite you to create a flag – free from language and well-worn clichés – that embodies the idea of global citizenship. A symbol that triggers pride and cohesion, whether worn on a backpack, displayed on a door, or flown on a flagpole. A symbol for anyone to declare membership in a growing and vital human cooperative. We invite you to prove that design has a real role to play in the fate of our world.

(You can look at the entries of the 32 finalists here.)


Now, about that "things might have been otherwise" argument:

Julia Clarke, writing about Actor-Network Theory (or ANT), examines the question "where is anemia?" to illustrate the point that "whatever story is being told, we are reminded that ‘it might have been otherwise’." As Clarke explains,

If there are plenty of iron tablets available, ‘anaemia’ is a good diagnosis. If there’s no iron, and no good food and no way to cure worms or malaria, then there is no point in using machines to measure haemoglobin levels. Anaemia is real, our bodies need iron; it is narrated, or discursively constructed in the context of different experiences and understandings; and it is social in the sense that what it means and what we do about it is something that is moved around in the fluid spaces of bodies and social relations.

The big work of ANT is to make a theoretical shift away from the assumption that humans are the source of all action and everything around them is just tools for action. Instead, Clarke explains it thus:

The most radical claim of actor-network theory is that all of social life consists of patterned networks of people, animals, machines, texts, buildings, plants – any material entity that is brought into a network. These entities have no inherent qualities but take their form and acquire their attributes through relationships in networks with other entities. This goes beyond the idea that humans behave differently or take on different roles in different social situations, or that plants wilt when the soil is too dry or that light bulbs need electricity.... It means recognising that machines, animals, micro-chips and people, as well as identities, categories, spaces and stories, all have politics and all are implicated in power relations.

In this view, the very humanity of human beings is an effect of the networks through which we derive ‘human’ attributes in relation to other human and non-human entities.

We say that humans are by nature territorial, and that notions like nations, borders, governments and flags emerged from that essentially human trait. But it might have been otherwise, as the Adbusters winning flag suggests. We can imagine a world in which a block of cloth tossed up a pole means not "this land is claimed for the American government and is subject to its government and laws" but "the swimming pool is now open" or "mitosis has occurred" or "a block of cloth has been tossed up a pole."

It might have been otherwise, and in this case the flag whose very image is that which means to us the exact opposite of "territory"--sky, the very opposite to us of land--won the contest because it helps us to imagine how it might have been otherwise. In fact, we might say the winning flag is not just the flag itself but the image of that block of cloth against a matching sky.

People drifting and gathering like clouds across the bright sky. No term to describe the notions of "borders," of "boundaries," no country or continent, no power exerted by the notion of "patriotism" and therefore no jingoisms, no xenophobia, no need for the complex of feelings and intentions exerted by patriotism as it currently exists in our networks of existence.

"You can't just pretend the notion of borders doesn't exist," said my British friend, talking about the expansion of the European Union. "When Poland joined the EU, immigrants flooded into the UK looking for jobs, and it's been bad for us. You can't just say, 'Right, let's get rid of the idea of countries and let everyone go where they want.'"

No, of course not. Not, anyway, in a culture where the notion of boundaries continues to exert its influence, regardless of shifts in law or approach. Not in a culture where there exists an us (the British) vs. them (the Polish, the Turks, the Greeks...). An us (America) vs. them (Mexicans, Canadians, the Middle East...).

No, of course not. But we can still try to imagine, as difficult as it is to do, how it might have been otherwise.


Ok, but here's how Adbusters kinda screwed the pooch on this one
Apparently, all of the judges of the One Flag contest were white men. For the love of pete. For the love of PETE.

This is further proof, though, of how hard it is to try to imagine how it might have been otherwise. And how important it is to keep trying.

Podcast: Authorship, Appropriation, and the Fluid Text: Versions of the Law

Recently, at my day job, I emceed a colloquium featuring textual scholar and Melville specialist John Bryant and intellectual property and First Amendment expert Wendy Seltzer. Over the course of the colloquium, these amazing scholars covered Moby-Dick, Edward Said, Shepard Fairey, fan fiction, Creative Commons, YouTomb, and how they talk about plagiarism and fair use with their students. This was a fun and fascinating conversation, and well worth the listen. I'm posting John's and Wendy's bios below.

To listen to the podcast, go to the link at MIT's Comparative Media Studies page (http://cms.mit.edu/news/2009/03/podcast_authorship_appropriati.php).

Pictured above, left to right: Media scholar Henry Jenkins; Jenna McWilliams, blogger and Curriculum Specialist for Project New Media Literacies; textual scholar and Melville Specialist John Bryant; and Wendy Seltzer, attorney and intellectual property and First Amendment expert.

John Bryant teaches at Hofstra University. His work explores the larger applications of the notion of fluid text to culture, and in particular identity formation in a multicultural democracy. He is a textual scholar and Melville specialist, whose works include The Fluid Text and Melville Unfolding: Sexuality, Politics, and the Versions of Typee. He is the editor, with Associate editor Wyn Kelley, of Leviathan: A Journal of Melville Studies and of the Melville Electronic Library (MEL). He is a Co-editor of the Longman Critical Edition of Moby-Dick and is currently working on a critical biography of Melville.

Wendy Seltzer is a Fellow at Harvard University's Berkman Center for Internet and Society and is a visiting professor at American University. She has taught Internet Law, Copyright, and Information Privacy at Brooklyn Law School and was a Visiting Fellow with the Oxford Internet Institute. Previously, she was a staff attorney with the Electronic Frontier Foundation, specializing in intellectual property and First Amendment issues. She founded and leads the Chilling Effects Clearinghouse, helping Internet users to understand their rights in response to cease-and-desist threats, and to research the effects of these threats on free expression.

Wendy serves as an advisor to the Citizen Media Law Project and on the Board of Directors of the Tor Project, supporting privacy and anonymity research and technology.

Good news for anyone who loves bad news

Changes to the application process for law school might mean...absolutely nothing.
Hey, good news for future lawyers of America: A research group out of UC Berkeley's law school has come up with a new test that they say can predict lawyerly potential better than the LSAT. Well, okay, this is only good news if you believe the entrance requirements, and not law schools themselves, are the problem. But more on that in a few.

The study's lead authors, Marjorie Shultz and Sheldon Zedeck, started from the belief that the Law School Admissions Test (known by most as the LSAT and by some as "that fucking test") was neither an accurate predictor of future performance nor a fair means of identifying potential lawyers. Part of the problem, they argued, is that admissions committees rely too heavily on LSAT scores and grades—as they explain, "[t]o admit primarily on the basis of LSAT test scores and grades to a professional field that has great importance to our society, seemed short-sighted."

The study began by identifying the key traits that make up a good lawyer; they listed 26 characteristics in eight categories.

1. Intellectual & Cognitive

• Analysis and Reasoning
• Creativity/Innovation
• Problem Solving
• Practical Judgment

2. Research & Information Gathering

• Researching the Law
• Fact Finding
• Questioning and Interviewing

3. Communications

• Influencing and Advocating
• Writing
• Speaking
• Listening

4. Planning and Organizing

• Strategic Planning
• Organizing and Managing One’s Own Work
• Organizing and Managing Others (Staff/Colleagues)

5. Conflict Resolution

• Negotiation Skills
• Able to See the World Through the Eyes of Others

6. Client & Business Relations - Entrepreneurship

• Networking and Business Development
• Providing Advice & Counsel & Building Relationships with Clients

7. Working with Others

• Developing Relationships within the Legal Profession
• Evaluation, Development, and Mentoring

8. Character

• Passion and Engagement
• Diligence
• Integrity/Honesty
• Stress Management
• Community Involvement and Service
• Self-Development

No surprise here, right? But they took it a step farther and developed tests that they argue can measure applicants' strength in the above categories. They administered their tests to practicing lawyers and compared results to the the lawyers' LSAT scores, and found that

while LSAT scores, for example, “were not particularly useful” in predicting lawyer effectiveness, the new, alternative test results were — although the new test was no better at predicting how well participants would do in law school. Unlike the LSAT, the new test did not produce a gap in scores among different racial or ethnic groups.

On the one hand, this is good news for anyone in the law profession who believes the net used to catch future lawyers is too small and has too many holes in it. On the other hand, another test? Seriously?

The law profession, at its best, is intended to uphold the basic structures of our society: To protect its citizens, to support its government and its economic infrastructure (and to hold these in check when necessary), to stand for the wealthy and indigent alike. A standardized test—even one that measures empathy instead of analytical skills—will never be able to assess with any accuracy an applicant's disposition toward justice, morality, and ethics. If we really want to identify applicant potential, we should discard, not tinker with, the current admissions process. There should be interviews. There should be role-playing activities. There should be deep interactions with candidates before anybody is admitted to any law school, ever.

Of course, this approach can only work if we assume that law school itself is not designed, at its foundation, to churn out new lawyers just like the old lawyers. And we can't assume that. A friend of mine who is at the tail end of her law school experience explained to me that she decided to pursue a law degree because she believed in the universal nature of justice, ethics, and the law. But in law school, she quickly learned, success comes by learning to play the game.

Part of the game, as linguist and educational theorist Jim Gee explains, is learning the Discourse of law school. Citing the ethnographic work of Michele Minnis, he explains that

In the typical law school, instruction in the first year involves total immersion in the course material. Teachers do not lecture in class, rather they engage in adversarial interactions with students patterned after those of judge and lawyer in appellate courtrooms. The dominant instructional approach is the "case method." This method consists in discussing and comparing appellate opinions through a question-and-answer routine sometimes called "Socratic dialogue."

Before each class, Gee explains, students are expected to write briefs summarizing multiple appellate opinions; when called upon in class, they must be prepared to articulate (often under pressure) the contents of their briefs. Here's where it gets tricky, because

[t]o write a competent brief the student has to be able to read the text being briefed in much the same way as the professor does.... Students are not taught these reading skills—the ones necessary to be able to write briefs—directly. Briefs are not, for instance, turned in to the professor; they are written for the students' own use in class.... One of the basic assumptions of law school is that if students are not told overtly what to do and how to proceed, this will spur them on essentially to teach themselves. Minnis argues that this assumption does not, however, work equally well for everyone. Many students from minority or otherwise non-mainstream backgrounds fail in law school.

My friend the law student is not failing; in fact, she's doing quite well. But in order to succeed, she had to swallow down what amounted to intense, unrelenting sexism. This applies not only to treatment by professors and other students but also to how case law is dissected. In many ways, she's had to just put her head down and let it happen. There is no way to get through the experience otherwise.

"Every female law student I know," she said to me, "has had the experience of saying something, getting told she was wrong, then hearing a male student say exactly what she said and get praised by the professor for it."

We can assume this experience extends beyond gender into ethnicity, sexual orientation, and worldviews in general. The purpose of all of this is to create lawyers who replicate the lawyers that came before them. Who decides what, for example, comprises the "integrity / honesty" identified in the Berkeley list above? Welcome to the new law profession, same as the old law profession.

And we haven't even broached the subject of the Bar exam, which is used in much the same way as the LSAT, but with higher stakes: This is the last opportunity to ensure that a new lawyer aligns with the values and belief systems supported by the law school system. To pass the Bar, you have to speak Lawyer--you have to have internalized the Discourse of law school and, by extension, the law profession. There's no room here for alternative approaches to law, to ethics, to justice.

"They have too much at stake," my friend said when I asked her about the possibility of getting rid of or at least changing the Bar exam. "You have to understand that the lawyers who are in charge of these things went through the whole process, and they think, 'I got through it, so you have to too.'

"Not only that," she added, "but the high-up lawyers are there because they support the status quo. They have no stake in thinking outside of it."