Lecture Notes from 11/14

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The Philosophy of Discourse

In a sense this class is about two things: (1) argument – empathic as opposed to oppositional; and (2) Cybermedia – projection of message into space

  • Empathic argument can be seen as not different as the idea of communicative discourse that Habermas describes, or what people in sales teach their workers about having to convince customers to move in a way you want them to move before they know they want to

Example: A law student coming to a case for the first time; it tells a story, relates to your emotions. You have a sense of justice or injustice, but without having read any other cases you have nothing else to relate it to. Then you read your second case, and you are able to start making distinctions

  • Distinctions allow you to craft categories and discriminations
  • But the typical path is that, as you become increasingly competent in categorization and discrimination, you at some point lose feeling and become a hired gun – “tell me which side to argue, and I can do it”
  • Like coming back to a glass of wine after you’ve become a connoisseur, you can appreciate it for what it is, but its different now in the context of what you know

Example: Teaching life lessons to kids through the lens of HIV/AIDS Issues; kids creating skits about HIV/AIDS issues, shining the light on how kids believe adults act (badly) and what adults have taught their kids

  • Steps in implementing the program
    • (1) Get the kids together – purpose of first meetings is to establish trust
    • (2) Play games – like doing the three hats, they are led to see things from other points of view (first conceptual, then eventually realistic)
    • (3) Get the kids to engage, in ways that get them to talk to each other; literally interviewing each other in order to gain mutual understandings
    • (4) Aggregate – bringing together the group of trusting people who have expressed themselves and have been responded to by other people in the group, they work together in the group to see what they want to do, and that’s when they write their skit, learn to act it out
  • Where are we in this series of steps?
    • We are a class in discourse – we are doing it and studying the structure of it

Charles Fried, “Modern Liberty and the Limits of Government”

  • The first chapter was the first reading assignment for this class – Fried argues for an individual orientation to liberty, a libertarian argument; his project tis to regenerate respectable liberalism; he distinguishes liberty into two kinds – (1) the liberty of the ancients & (2) the liberty of the moderns
    • Ancients: based on the idea that a tribe, a people, a state, should be able to rule itself; that you shouldn’t be ruled by an outsider – this a powerful idea, an idea that sets up the state as a powerful origin for rights and welfare; this is the idea that has built the pyramids, the canals, but it’s also the idea that is in back of Hitler, Pol Pot, and the idea of the state supreme and the individual as a unit to serve the state and, within that environment, if there’s something left for the individual then that’s fine, but that’s it
    • Moderns: Fried’s family fled Hitler and left Hungary; he had the choice to leave and choose escape; the idea is that each individual, each one of us, is in some pre-right, pre-state entitlement, justified in seeking to live the best life according to what we ourselves think – it’s our life, we should live it to the best and what’s best is up to each individual; Fried extends that thesis that we choose our beliefs, we choose our understandings, we choose our biases, we choose boundaries of our identity to a very great extent, and that we should be responsible for our choices
    • Fried has long studied the relationship (his relationship) with the individual and the state; the individual must come first --> he imagines the framers getting together being the libertarian individuals that own their identities, and then together forming a state
    • Nesson sees this philosophy as one that works for the Net; with the Net we aren’t yet in a defined state, we are in a pre-state environment, a network in which individuals can connect in a multiplicity of ways, and each of us steps up to the Net as a person with the liberty of the modern
  • Most of the speakers got the book all wrong
    • E.g. Former Dean Summers; Professors Minow, Michelman, and Fallon; Judges Boudin (1st Cir.) and Cordy (SJC)
    • Pyramids seen not through the point of the view of the Pharaoh, but through the eyes of the builders – and they all missed Fried’s point and personality and his expression in the way he meant it)
  • Richard Parker on Fried:
    • The book is about the spirit of liberty, written by a free spirit
    • That’s what’s exemplary about it, and that what’s drastically missing from the world
    • (1) Temperament – Charles in this book is the "Bad" Charles, as opposed to the "Good" Charles
      • The “good” Charles is well-behaved, is sound, keeps his contributions within balance, is cooperative, is trying to be coherent, and most academic writings are like this, and are thus not very useful
      • Bad Charles is the obnoxious, irritating, rubs you the wrong way
      • Bad Charles is interesting writing, unlike most writing about law
    • (2) Genre – he’s not trying to demonstrate or prove anything, to force anything on us; not preventing data and stats ; not presenting that there is a philosophically “correct” answer; there still remains evidence of the blight that is destroying modern legal writing, but 99% of it is good
      • Open texture; constantly moving, no closure meant, no closure taken
      • Far more open than most people are giving it credit for
    • (3) Style – legal academic writing is a wasteland now, and that’s why it’s read by almost no one; the boredom is just overwhelming, partly because of its pomposity and partly due to its pretense to impersonality
    • It’s personal at every level; referring to his family (parents, wife, children), but also the style is pungent, humorous, and light – at every moment it’s light on its feet; you never feel like you’re dying, like most academic writing
    • This book is very free, and it's Fried's best writing

Comments about Yesterday’s Class

  • Professor Nesson: Good
    • Small personal conversation, emotions
    • Added a new lawyer of empathy, no longer just at the macro level
    • More like a policy argument, as opposed to a communicative argument
  • There was some exploration of seeing things from the other point of view, and they actually started engaging in a creative enterprise in formulating thoughts about action
    • When Mike Fricklas left, he said Viacom would do something about this -- if there was some way to "monetize the long tail" in a way where a user like Wayne would have the choice to license or not, but would actually choose between the legal over the possibly-illegal
  • Student [Josh]: There was something that Fricklas said that I hoped they would explore further, but they moved off it quickly. Fricklas: "I can see that you've put a lot of effort and talent into it, and you wouldn't want someone to be able to take it and use it in a way that you didn't agree with." And Wayne simple replied "of course," but the discussion ended there
    • It seemed like a start into an empathetic argument -- what protections would artists like Wayne want to protect his creativity? It's not necessarily just about the big companies owning all of the rights in the world. How would Wayne have wanted to protect his works if he could write the laws himself?
  • Rebecca Nesson: Josh was right when he noticed that Wayne did not necessarily identify the "big picture" about where he thought the system should go; he didn't respond to the issue of "monetizing the long tail"
    • Compare the current landscape, where individual artists are in a world where they can reserve and give up rights as they choose to; as compared to the traditional system, where people who are signed to big studio contracts immediately lose all the rights in their music
    • The "newer" system gives people choices on deciding what set of rights are important to them and which ones they think are best to give up
  • Popularity comes from getting your material out there
    • It’s worth putting music up with creative commons license
    • Songwriters lose all their rights and only get kickbacks from the "real" copyright owners (in the musical composition and the sound recordings)
    • It doesn’t subtract value to let users know how they can use your material and how much you’ll charge for it
  • Independent Artists
    • New communication and media allows artists to get information out there without requiring lots of money
    • Examples: Clap Your Hands Say Yeah and They Might Be Giants (see The Weeks Page), South Park (internet video)
  • Revenue generation
    • Except for the largely successful musicians, most people don't make money by selling CDs, but instead throughtours, selling swag, etc.
    • Internet publicity helps sell tickets, ultimately leading to the most revenue generation for the band itself
    • Some artists have begun to sell music directly off of their MySpace site.
    • Also, Dave Matthews Band once had a tape-trading business on the internet, which allowed them to make a lot of money in an avenue that many artists could not
  • Industry Hypocrisy
    • Jay-Z's song was copied from the Middle Eastern song, and then the company claims copyright over it
    • The company that runs Comedy Central can turn around and send takedown letters to YouTube (for showing clips, such as Jon Stewart and Colbert) while Jon Stewart and Colbert use YouTube clips all the times for their shows
    • There's something nefarious about saying "we wouldn't sue you for that," while the threat of suit still stands in the way of many independent artists
  • Music & Graphic
    • We've spent so much time talking about the use of the Internet and cybermedia in spreading and distributing music, but not about their importance in creating music -- compared to the traditional forms of musical production, now home recording is so easy and affordable, and there are easy avenues of online collaboration that maybe we're taking for granted
    • Seeing graphic and relationship to the music he was mixing - amazing tool
    • Easy to generate, makes the music more accessible
  • Burden on the Individual
    • Fair Use – someone has to do the work, get the permission
    • In reality, an artist like Wayne would try to publish a paper at the University Press, the cites in the paper would get forwarded to the general counsel, and in the end, someone in the company would just say "this might be a violation, so just take it all out"
      • No one wants to put in the time or effort to get permissions for the copyrights, and companies tell the authors to get the work done
      • This obstructs certain creative work from being done
      • Even though lawyers could handle these issues fairly easily, there is a lot of legal transactional work that is falling through the cracks
      • Sending cease and desist letters is easy, but responding is a bit more complicated
    • The rule is: When in doubt, take it out
    • Prof. Nesson - Looking for some element of the structure to drastically change the field -- shifting the burden such that it would cost the copyright owner something to assert the copyright; or perhaps a more efficient way would be to allow the creative artist (or their publishing company) to send out a notice
      • Reply: Everyone is trying to make a living here, so there has to be some sort of legal regime here to protect rights, and in any legal regime there are going to be rigid edges. Looking at YouTube, it was jsut sold for more than a billion dollars because you're able to to watch things like South Park, maybe in contravention of copyrights -- so where can you draw the line?
    • Smaller artist example
      • Imagine a guy like Wayne, in his basement, spending all of his money on food and necessities and not thinking about legal issues, because he's not making any money in his creative projects
      • He goes along for a while, and when he makes enough money, he thinks about returning to the legal stuff -- current law already tags him as a violater, and the only way for him to get out of this (before he can go into his own business) is to get a settlement with one of the big corporations
      • Nesson (and Fricklas) proposes a net space that calculates how much “going legal” would require -- Frivolous idea that you could talk to people and encourage people to move into this repository
      • The license/legality would be the item being sold – it would compete in the market
    • Rebecca Nesson: Keep in mind, the companies still aren't necessarily ready to say "we'll let anyone use it in anyway they want to as long as they pay for it" -- there are always going to be uses that they won't permit, and instead they would selectively give permission
      • This preclues a free system of licenses from really working
      • It's about the company exercising moral rights and control over a work, but not necessarily the artists' own creative choices

Class Podcasts Discussion about the laptop in the classroom debate (Nesson)

  • The classroom started off with teaching that was just student and teacher connecting, and nothing else
  • There was a teacher once, who had a student in his class who never took notes, and one day he spoke to the student and said "you never take a note," and the kid respondend "don't worry, I already have my father's set"
  • Then came computers in class - now student, teacher, and solitaire
  • Now there's the net -- now student, teacher, solitaire, and the web
  • Many professors, like Professor Warren, still think that direct connection between just the student and the teacher is the best way to teach and learn

Ankur’s Laptop Podcast

  • Main Points
    • We're all tied to learning in our own ways; tools shouldn't disrupt learning and should help foster our education
    • We're not here to learn how to take notes with pen and paper, we're here to learn the law, and some people are better learners with computers in front of them
    • The problem may not be, like the professors say, that computers cause student to not pay attention; the problem might be that the professor is no engaging enough
    • Grades are an efficient check on students' attention level in class and their ability to learn
    • Computers give immediate, efficient access to information while in class
  • Teacher’s perspective
    • Understood the legal arguments, but didn’t feel the empathy expressed for that side
    • Felt that teacher’s efforts were dismissed with comments re: teachers should just make better lesson plans
    • Comment that laptops can create an enormous obstacle to creating effective, engaging lessons
    • Compare to the Business School: no laptops or internet are allowed at the B-School, and the students are a lot more engaged in the classroom discussions (note: class participation is graded)
  • Student’s perspective
    • An argument was missed – you can’t choose whether others are using laptops – it can still be distracting, it may not actually change your experience
  • Laptops and the Internet are two different issues - could solve the problem by removing wireless internet
    • Response: There are very useful things you can do with the internet
    • Potential teaching tool – relating to the world outside, playing with the rhetorical space
    • Teacher can include, as part of his task, structuring the spaces available to you
    • Nesson: the internet argument can cut both ways -- maybe laptops are more useful now because they're wired; or maybe laptops are just more distracting now because the internet is available
  • An “even if” in the argument can be very useful
    • Need to provide option for those who don’t initially accept your argument
    • E.g. Even if the internet argument falls the other way, look at this argument about just unwired laptops instead -- this podcast is lacking this sort of argument

HYPOTHETICAL ARGUMENT: Nesson introduces himself as “Joe Average Teacher” His position

  • Hates technology, writes important things long-hand and finds that helpful, doesn’t like what technology is doing to his world
  • Engaging is better than just lecturing, doesn’t think he can do that with their laptops
  • Teaches trusts and estates, a subject that is not very net-conducive


    • Laptops are helpful for students  but this is just empathy for students, not for the teacher
    • Understand his position, but if he keeps his students technology-free, it will keep them behind others  good empathic position
    • Computer is there to do the memorization for the students, and the thinking can happen from there; can split up classes (lecture, then interactive sessions)  appeals to professor’s control over the class format, seems like “best of both worlds”
    • Asking students to shut laptops will piss them off  you should give them a choice to either not bring it, but be very aware of whether or not you’re engaging. If they’re not engaging, you can ask them to shut laptops.
    • Maybe do things to help students with the dictation aspect – put slides online, etc.
    • Empower the other sides, people are interested in personal growth as well as helping others