Continuing on my way critiquing the daily installment of Free Culture served to me by Daily Lit.
There's a reason I've come to conclude that Lessig is an asshole: he privileges technology over people. That in itself wouldn't necessary make him any more of an asshole than the next modern man, but there's more: he *ridicules and humiliates people* when he celebrates the privileging of technology over people. And that's morally wrong -- and it's even unnecessary for technology even to be acknowledged as "prevailing". You don't have to celebrate violent, destructive change that harms people; you don't *have* to be an asshole. There are balances, compromises -- and common sense that trumps that other "common sense" (i.e. brute force) being invoked with such malicious glee in this passage.
Here's the story. The Wright Brothers invent their planes; they get more popular; they are picked up inevitably by the military; and it isn't long before low-flying military aircraft are scaring the chickens of two farmers, making them fly into walls and die. These two farmers, outraged at this encroachment on their pastoral life (the kind of pastoral life that tekkie-wikinistas often inevitably celebrate when they buy ranches themselves with their Silicon Valley wealth), decided to protest. They turned to the courts. But an impatient and irritable justice ruled that "common sense" dictated that an old concept that people's private property extended endlessly up into the skies was outdated. The airplanes had to have the right of way in air space, or every transatlantic or cross-country flight would yield bunches of lawsuits. This would stand in the way of progress; it couldn't be allowed to happen. The farmers, one of whom was very appropriately named "Tinie Causby" (what a great name for an avatar or a blog!) had to resign themselves to their fate in the name of modernity.
But that's not enough for Lessig -- he had to gloat -- they always do:
"Or at least, this is how things happen when there's no one powerful on the other side of the change. The Causbys were just farmers. And though there were no doubt many like them who were upset by the growing traffic in the air (though one hopes not many chickens flew themselves into walls), the Causbys of the world would find it very hard to unite and stop the idea, and the technology, that the Wright brothers had birthed. The Wright brothers spat airplanes into the technological meme pool; the idea then spread like a virus in a chicken coop; farmers like the Causbys found themselves surrounded by "what seemed reasonable" given the technology that the Wrights had produced. They could stand on their farms, dead chickens in hand, and shake their fists at these newfangled technologies all they wanted. They could call their representatives or even file a lawsuit. But in the end, the force of what seems "obvious" to everyone else-- the power of "common sense"--would prevail. Their "private interest" would not be allowed to defeat an obvious public gain."
Sorry, but that lame parenthetical hope for the chickens -- and not for people! -- doesn't cut it. It's typically stupid literalist gloating -- as if it has to be all or nothing. As if these poor chicken farmers have to cut a laughing stock image, shaking their fists, dead chickens in hand, helpless and technology -- military technology!!! the kind Lessig protests vigorously against if it is in the hands of Bush!!! -- gets to prevail uber alles.
There wasn't so much the force of "common sense" here as just...force. And the kind of force, that in fact, liberal democrats would definitely want to limit -- and even Lessig wants to limit if it is used in a place he doesn't like, oh, the Middle East, or something. And of course, there *isn't* any common sense in extending this eminent domain of technological progress indefinitely. Obviously, if both commercial and military planes had continued to fly low -- needlessly -- and continued to harm chickens and scare farmers, the need for *food* -- the need for farms and chickens, *too* -- would force a *balance*. See, that real common-sense balance is what is often missing from Lessig's extremist rages and gloats. We don't *have* to stand and ridicule the poor Tinie Causby; we can look for *mitigation*. And in fact, in real life, we do. It's no accident, comrade, that there is a page like this, where people in the UK can *protest against low-flying military aircraft*. The kind of protest that Larry would call "against common sense and progress".
I have some direct experience with this. After 9/11, our neighbourhood in NYC was subjected to numerous buzzings by police helicopters and small planes. One day the helicopters arrived en masse, and flew so low -- and dashed in between skyscrapers -- that they created a huge, reverberating roar that scared the bejesus of all the civilians below in a playground, and they and their children went scrambling for cover in fear. The sight of those low-flying copters and the fear-stricken kids and parents running and ducking was an indelible one. I felt I must "do something". I really had no idea "what is to be done". I knew there was something called the Civilian Review Complaints Board that was some kind of citizens' board that could review complaints about police misconduct. I decided to use their Internet form to lodge a protest -- did they really need to accomplish the war on terrorism by flying so low like this, and so near buildings? I figured the complaint would go "nowhere".
Months later, to my surprise, I received a phone call. The caller introduced himself as a lieutenant colonel who said he had received my statement. I was puzzled by hearing a military rank at first, and couldn't place what the story was. I then oriented myself as the man explained to me the reason why there were so many aircraft that day and why it was necessary -- there was some sort of police meeting, and "protection" and "deterrence" had to be deployed. I pointed out that protection against terrorism, while necessary, had to strike a balance with protection of civilians. Did the terrorists *really* get deterred by the noise of reverberating helicopters, if they had already long ago plotted some sort of bomb or something? Did the anger and fear of civilians -- and possible danger to the helicopter pilots and the people below -- *really* justify the deterrence achieved? Was it working? There weren't easy answers for my caller or me to these questions, and nothing was "solved" -- but in fact, I felt I had at least been heard out. And that sort of low-flying buzzing so near the playground never happened again to my knowledge.
And that's, of course, what's vital in a democratic civil society. You can question "progress" and its gloating tekkies like Lessig, and say, "but what about people? What about a balance here?"
Lessig half-heartedly concedes -- it's not the main point of his meme -- toward the end of this installment that a finding of a "taking" might possibly be warranted, i.e. that there should be just compensation when the government exercises "eminent domain" and should compensate those harmed. But he doesn't follow through with that.
No, ultimately, Lessig says something really deadly here:
"But in the end, the force of what seems "obvious" to everyone else-- the power of "common sense"--would prevail. Their "private interest" would not be allowed to defeat an obvious public gain."
Er, obvious to whom? Not to the chickens. And not to the chicken farmers. And chicken and their farmers are needed *too*. If you construe the needs of farmers and chickens as a mere "private interest harming public interest," you are a fool. The chicken farmers, with their *private property* and *property rights* fighting in the face of *public encroachment of the freebie takers* have a point, too. Chickens are needed -- they can't thrive if planes buzz them, and the entire country would ultimately not thrive if the concept of private property and the individual's protection against the state's arrogation of the public interest could not thrive, too. The nightmarish "utopia" implied by Lessig here can't be allowed to stand.
If you go and read the actual case, you can get further away from Lessig's aggressive viral meme-dropping to another interesting point that he simply doesn't mention, as it would ruin his neat analogies to copyright -- which is of course the ultimate meme he is dropping here -- that people who want to retain copyright are like farmers holding on to dead chickens in the face of overwhelming progress like airplanes (when in fact, you can ask for a balance that enables producers of content -- chicken farmers -- to keep their product viable and to get paid for it, and not allow the hordes of the freetards to destroy their value, which in the end will deprive even the freetards of food).
In the actual case, the justices in fact recognize that a "taking" is not just a direct seizure, but a harming of land. (Dissenting Justice Black also ask whether the court should even have ruled at all, and whether rigid application of constitutional norms was the way to deal with technological challenges; perhaps legislative bodies would be the better and more flexible venue). To rule on what airspace is in fact could be an overstretching of the power of the U.S. government (something Lessig would only be too happy to question in any other context outside his stretched copyleftism homily here).
So in fact, Lessig, who prides himself on being such a savvy lawyer, and who appears unimpeachable to so many Internet readers, *got it wrong*. Far from *encroaching* on the idea of private property, this U.S. vs. Causby case *bolsters it*! And in fact, far from helping to endorse Lessig's virulent and shrill copyleftism, this old story points the way for a more balanced and nuanced approach to content on the "airwaves" of the Internet, which do in fact depend so heavily on the content of those with land underneath, i.e. users, creators. As the legal commentator notes, far away from Lessig's tendentiousness:
"On 27 May 1946, the Supreme Court ruled on the case. It agreed with Causby that the use of his farmland was a taking in effect, and that Causby was entitled to his just compensation under the Fifth Amendment. Justice Douglas wrotethe opinion for the majority, with Justice Black, joined by Justice Burton, dissenting.
Declaring the air "a public highway," Douglas rejected Causby's claim that his airspace had been taken from him. "To recognize such private claims to theairspace would clog these highways," Douglas opined, "seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim." However, he did concede "that if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere." Thus the low altitude overflights constituted an invasion of Causby's space "in the same category as invasions of the surface."
From there, it was no great leap for Douglas to conclude that the governmenthad in effect appropriated Causby's property. He wrote:
Flights over private land are not a taking, unless they are so low and so frequent asto be a direct and immediate interference with the enjoyment and use of the land. We need not speculate on that phase of the present case. For the findings of the Court of Claims plainly establish that there was a diminution in value of the property and that the frequent, low-level flights were the direct and immediate cause."
Sorry, Lessig, but you suck -- you suck as a legal commentator, and you suck as a social commentator. You're just plain wrong that this story is about people's private interest (which isn't so private -- it feeds us all!) "not being allowed" to trump common sense. You're just plain wrong that the "sense" of this case is the irritable Justice Douglas, with his "common sense revolts at the idea" doesn't so prevail that people cannot get just compensation.
In fact under the rule of *law* -- so different than the rule of code! -- the judge found that *these farmers had a right to compensation*. That compensation was a deterrent. The military wouldn't be encroaching so much like that again, if they faced lawsuits for hundreds of dead chickens each time.