20: Translation and Latent Ambiguities

Table of contents

1. Intro
2. Lessig Chapter 9
3. Lessig Chapter 10, Intellectual Property as Latent Ambiguity
   1. 1. The 19th century code, intellectual property laws, and their intended values
   2. 2. The new code and its conflicts

Intro

Today we want to focus on Lessig’s analysis of the legal notion of “translation”, and why – within a landscape of shifting medium – the legal ideal of “translation” is not always possible.

As a medium shifts (or the technological architecture changes) we confront questions of value that were previously never decided. Lessig calls these “Latent Ambiguities”. In these cases, translation is impossible because the legal precedent never made a decision on the question of value. Such a value decision was never made because the previous technological context never before allowed multiple options requiring a decision. Previously the technological context or code always made the decision for us.

Today, we will work with Lessig’s text to make sure we are clear about what “translation” is and when “latent ambiguities” arise. Specifically, we will look at the Olmstead vs United States case, the opinions of Taft and Brandeis, and Lessig’s analysis to get a picture of what legal “translation” looks like.

In getting a sense of what translation looks, we hope also to get a negative image of instances where translation is not possible, and thus where “latent ambibuities” arise.

Then in Lessig’s 10th chapter we will look at his first example of such a case where a Latent Ambiguity occurs, namely with respect to “intellectual property”. Here we want to see why an a “latent ambiguity” emerges as well as why, in light of changes in the “code”, the past legal tradition does not give us enough information to merely translate the old law into the present.

Lessig Chapter 9

Rather than re-narrate Lessig’s account, let me provide some “reading questions” to guide your reading.

What are the “facts” of Olmstead vs. United States case?

What is the constitutional issue at stake in this case?

4th amendment.

What are the background presuppositions standing behind the 4th amendment? (see esp. p. 160)

Lessig notes that it presupposes 1) a “common-law system of trespass” (making the notion “property” seemingly central to to amendment’s interpretation). 2) It also makes assumptions about what is and is not technologically possible. Trespassing property was understood as the only real way to conduct a search.

What are the two identified strategies for responding to contextual change (see bottom of p. 160)?

1) “Focus on what the Framer’s would have done” and 2) “find a current reading of the original Constitution that preserves its original meaning in the present context.”

How does the decision of Taft represent the first strategy?

How does the decision of Brandeis represent the second strategy?

Here are a couple of key passages from Lessig:

“Brandeis’s method accounted for the changed presupposition. He offered a reading that changed the scope of the amendment in order to maintain the amendment’s protection of privacy. Taft, on the other hand, offered a reading that maintained the scope of the amendment but changed its protection of privacy” (p. 162).

Lessig suggests that context shows us that the goal of this amendment was to protect privacy. The focus on property law and trespass in the amendment is due to the fact that, because of the prevailing technological possibilities of the time, privacy could only really be violated through trespass. Thus, making laws about trespass was an effective way of protecting privacy.

Thus, he argues, Taft’s rigid focus on maintaining the scope of the amendment and refusing to let its protection extend beyond property changes how much privacy the constitution protects, with the result of protecting less “privacy” than the original drafters of the amendment intended.

Brandeis’s approach is able to protect the intention of the amendment and the value of “privacy” only by changing the scope of the amendment to extend further than it originally extended.

The key here is to differentiate between the essential and inessential. Lessig argues that “a reasonable right to privacy” is the essential. The mechanism of protecting that privacy through protecting against trespass is the inessential. If the mechanism no longer suffices to protect what is essential, then Brandeis (and Lessig) think it reasonable to change the mechanism.

Lessig summarizes this nicely on p. 164:

“This form of argument is common to our constitutional history, and it is central to the best in our constitutional tradition….It acknowledges that to do this the Court may have to read the amendment differently, but it is not reading the amendment differently to improve the amendment or to add to its protections. It is reading the amendment differently to accommodate the changes in protection that have resulted from changes in technology. It is a translation to preserve meaning” (p. 163)

This seems like a decisive definition of translation. Critical here is the fact that in translation there is no attempt to change the amendment by adding new protections or introducing new values. In the Olmstead example. Brandeis is NOT trying to add new protections to the new amendment. He reads the “essence” of the amendment as trying to protect a “reasonable right to privacy” and thus, in light of technological changes, he changes the scope of the amendment in order to maintain the essence of the amendment.

Critical for us in this definition of “translation” is how this kind of change differs from what we see in a “Latent Ambiguity”

Lessig Chapter 10, Intellectual Property as Latent Ambiguity

At end of chapter 9, Lessig provides us with a nice transition to chapter 10.

“Translation is one way to deal with the choices that cyberspace presents. It is one way of finding equivalence across contexts. But in four applications that follow, I press the question: Is the past enough? Are there choices the framers did not address? Are they choices that we must make?” (p. 168)

The first example offered to us is the question of “intellectual property”.

So, what do we need to establish in order to see this as a Latent Ambiguity?

1) First: we need to understand what the traditional laws of “intellectual property” are, what values they seem to protect, and the degree to which the laws achieve these protections with the help of nature and limits of the existing “code” of the dominant communications medium.

2) Second: we need to see how a new communications medium makes it possible for obedience to the existing laws (and the values they protect) to create new injuries and grievances that previously (in an earlier media era) these same laws would never have produced. Further, we need to see how these old values and new injurious create a conflict without the past offering us any guidance about how to resolve this conflict. The question of resolution, of deciding the proper way to measure injuries on either side, has never been resolved because the protection of the old values never previously came at the cost of other valued goods. It is the change in “code” that creates this new conflict and requires us to re-evaluate our commitment to the old values and how much we want to commit to them in the light new kinds of irritations and problems.

Note: This three-fold structure is an example of the the classic Marxist pattern of contradiction.

• (1) A particular material system exists —> this gives rise to a particular social structure and set of values (thesis)
• (2) A new material system merges exists —> this co-exists with the old social structure. (anti-thesis)
  • the new system and the old values are out-of-sync or in contradiction
• Eventually, through struggle, a new social structure and new set of values emerge to harmonize the new material system (synthesis)
  • And then the process repeats itself.

The synthesis stage is not something we are ready to resolve. Lessig at this point wants to show that the conflict exist.

So let’s follow Lessig and consider the first two aspects, leaving it an open question of how a new synthesis might be achieved.

1. The 19th century code, intellectual property laws, and their intended values

Around p. 192, Lessig points out that the inventors of copyright law lived in a world where copying was very difficult (why? how did technology/code create this “difficulty”?), thus copyright law only applied to a very small domain.

The general use and re-use of cultural material by the public at large did not generally involve “copying”, thus copyright law said very little about how most people might “use” cultural material.

2. The new code and its conflicts

But today as cultural material becomes digital, its “use” is intertwined with making “copies”.

Why? How how has technology shifted to change what “use” means?

Even calling up a file from a hard drive to RAM means making a copy. Showing someone an image (via the internet) is actually the task of making a copy. (Think of Shannon’s description of the fundamental problem of electronic communication: creating a signal that allows the end user to reconstruct an identical copy on the other end of the line.)

Now a set of laws that once meant to regulate a small corner of life, leaving much area for freedom, is now poised to regulate huge areas of human activity and culture that it may have never been meant to regulate.

A good summary reason for this (which really applies to all “latent ambiguities”) is that in a previous world “costs of control” were so high that much freedom remained almost as if by the laws of nature.

But now that the costs of control are becoming very cheap, it is possible to apply the law to new areas of life at a scale never before thought possible (see p. 196).

In Lessig’s account, this is happening most conspicuously as private companies erect digital fences to protect their “property” with a precision and effectiveness that the law never could.

The question: is this what we really want?

In sum: the existing laws combined with new technology are creating un-imagined effects. In this case, IP-protecting code has the potential to restrict the free use of cultural material on a vast scale. But because the high costs of enforcement once protected the free use of culture, no laws have ever been created to protect this freedom.

And now we must decide, whereas before the real space “code” decided.

Do we like the freedoms previously protected by the limitations of the old technology? If so, then in a world of new technological possibilities, we are required to explicitly declare this and explain why these values should be protected.