Technical Legality: Law, Technology and Science Fiction
01 Jan 2010-
TL;DR: In this article, the intersections of law and technology, referred to here as technical legality, are explored through taking science fiction seriously, and it is argued that reflection on technical legality reveals the mythic of modernity.
Abstract: This thesis concerns the intersections of law and technology, referred to here as
‘technical legality’. It argues that reflection on technical legality reveals the
mythic of modernity. The starting point for the argument is that the orthodox
framing of technology by law – the ‘law and technology enterprise’ – does not
comprehend its own speculative jurisdiction – that is, it fails to realise its oracle
orientation towards imagining the future. In this science fiction as the modern
West’s mythform, as the repository for projections of technological futures, is
recognised as both the law and technology enterprise’s wellspring and cipher.
What is offered in this thesis is a more thorough exploration of technical
legality through taking science fiction seriously. This seriousness results in two
implications for the understanding of technical legality. The first implication is
that the anxieties and fantasies that animate the calling forth of law by technology
become clearer. Science fiction operates as a window into the cultural milieu that
frames law-making moments. In locating law-making events – specifically the
making of the Prohibition of Human Cloning Act 2002 (Cth) and the Motor Car
Act 1909 (Vic) – with the clone ‘canon’ in science fiction (specifically Star Trek:
Nemesis (2002)) and H.G. Wells’ scientific romances, what is offered is a much
richer understanding of how the cultural framing of technology becomes law than
that provided by the ‘pragmatic’ positivism of the law and technology enterprise.
The second implication arises from the excess that appears at the margins
of the richer analyses. Exploring technical legality through science fiction does
not remain within the epistemological frame. Each of the analyses gestures
towards something essential about technical legality. The law and technology
enterprise is grounded on the modern myth, which is also the myth of modernity – Frankenstein. It tells a story of monstrous technology, vulnerable humanity and
saving law. The analyses of the Prohibition of Human Cloning Act 2002 (Cth) and
the Motor Car Act 1909 (Vic) show that this narrative is terrorised, that the saving
law turns out to be the monster in disguise; that the law called forth by technology
is in itself technological. In extended readings of two critically acclaimed science
fictions, Frank Herbert’s Dune cycle (1965–83) and the recent television series
Battlestar Galactica (2003–10), the essential commitments of technological law
are exposed. Dune as technical legality makes clear that technological law is truly
monstrous, for behind its positivism and sovereignty its essence is with the
alchemy of death and time. Battlestar Galactica as technical legality reduces
further the alchemical properties of technical law. Battlestar Galactica moves the
metaphysical highlight to the essence of technology and very nearly ends with
Heidegger’s demise of Being in ‘Enframing’: monstrous technology and
monstrous law reveal a humanity that cannot be saved. However, at the very
moment of this fall, Battlestar Galactica collapses the metaphysical frame,
affirming technological Being-in-the-world over empty ordering, life over death.
This free responsibility to becoming that emerges from Battlestar
Galactica reunites technical legality with the mythic of modernity. The modern
denial of myth, which allowed Frankenstein to narrate technical legality, has been
challenged. Free responsibility to becoming means a confidence with myths; it clears the way for the telling of new stories about law and technology.
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Abstract: 1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l
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TL;DR: The anthropologist Edward Hall as mentioned in this paper returned to his hotel one day, went up to his room, opened the door, and found that while it was the room he had been living in, someone else's belongings were there.
Abstract: Consider the experience of the anthropologist Edward Hall. Some years ago, while on a research trip to Japan, Hall returned to his hotel one day, went up to his room, opened the door, and found that while it was the room he had been living in, someone else's belongings were there. Hall took this in for a few moments, all the time feeling uncomfortable, indeed feeling that somehow he must be in the wrong place, and that he would be found and accused of being in someone else's room. He then went down to the desk where he was told that his room and his belongings had been moved. He was given a new key, went up to his new room, and found that all of his possessions had been laid out for him in just about the same way he had left them in the first room.
14 citations
01 Jan 2003
TL;DR: A wide range of media amplified the frenzy that accompanied the public arrival of new technological objects, including newspapers, tabloids, broadsheets and from the mid 1920s the radio, vied for readers and listeners by investing new artefacts with a dramatic aura.
Abstract: Between the 1890s and the early 1930s, new technologies occupied a prominent place in British and German public life. As the introduction of steel into maritime engineering triggered fundamental design changes and gave birth to luxurious ‘floating palaces’ in the late nineteenth century, launches of new vessels regularly attracted crowds in excess of 100,000 people whose applause testified to the march of technological progress. 1 First flights of aeroplanes and airships also drew six-figure numbers of spectators as did flight shows and air races. 2 Audiences numbering in the millions left no doubt about the attraction of the novel technologies that gave rise to the cinema industry and, later, to radio broadcasting. A wide range of media amplified the frenzy that accompanied the public arrival of new technological objects. Often locked in fierce competition, monographs, tabloids, broadsheets and from the mid 1920s the radio, vied for readers and listeners by investing new artefacts with a dramatic aura. Individual companies sought to take advantage of the widespread interest in their products, mounting extensive public-relations campaigns to woo press representatives. While producers of aeroplanes and airships invited journalists on free flights, shipping companies offered members of the press tastes of haute cuisine and glimpses of the luxuries of first-class accommodation during short cruises before new ocean liners set out on their maiden voyages. 3 These campaigns habitually climaxed in elaborate festivities staging innovations as breathtaking sensations. Situated at the intersection of press coverage, public-relations efforts and popular interest, technological innovations commanded exceptional attention in the British and German public spheres at the time. Time and again, new technologies came to be hailed as stupefying ‘modern wonders’ in these media storms. The formula of the ‘modern miracle’ had expressed surprise at technological innovations throughout the 1800s, and it continued to do so at the end of the century and beyond. It testified to both the enthusiasm and the anxiety that the appearance of innovations generated: although admiring recent inventions, contemporaries simultaneously found them beyond their comprehension and thus a worrying source of uncertainty. In short, the notion of the ‘modern wonder’ served to formulate ambivalent appreciations of new technologies. Furthermore, classifying technological innovations as ‘modern miracles’ linked
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Additional excerpts
...33 Rieger (2003)....
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01 Apr 1976
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...54 Herbert (1965, 1969, 1976, 1981, 1984, 1985a)....
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Journal Article•
TL;DR: The problem of determining who owns virtual worlds has been a hot topic in the last few years as discussed by the authors, with a variety of approaches to determining ownership of virtual worlds, including patent, trademark, copyright, unfair competition, trade secret, and EULA.
Abstract: I. INTRODUCTION Clive steps out onto the wooden deck of his modest two-story stone cottage on the outskirts of the city.1 It is a sunny August afternoon and his gardens are still wonderfully in bloom. Next to a quiet stream meandering through the back of the gardens his neighbors are putting the finishing touches on a pavilion where two of his friends will soon be married. The wedding is only days away now, and all of the neighbors in this close-knit community are eagerly awaiting the grand event. He steps back inside and considers sitting down to do some work. Instead he grabs his car keys and heads out. It might be a little early to head to the local pub, but he's sure that he won't be the first one there. As he pulls into the stone parking lot he notices that several of his friends have already arrived. He enters and quickly finds his friends seated at their usual table in the far corner. It looks to be another typical evening of arguing politics, discussing local happenings, and forgetting their mundane jobs. It all sounds like an ordinary suburban existence except for one thing: Clive doesn't live in the suburbs, and he never left his house. The entire experience took place, and continues to take place, in cyberspace or, perhaps more appropriately, avatar space. In this space, users create virtual lives by building houses,2 publishing newsletters,3 and creating alter-egos.4 They spend hours upon hours creating their existence. But who owns this world? Some corporate entity or educational institution may physically store the information, but who owns the characters, houses, landscapes, and adventures? As technology races toward the conception of cyberspace envisioned in William Gibson's seminal book Neuromancer,5 questions of ownership loom. The users, who spend hours developing characters, environments, and fictions, will want to protect their labor and creativity. This desire to protect the fruit of their creativity has arisen in two different contexts: noncommercial and commercial. First, in the noncommercial context, educational institutions-often hosting sites-want to promote the exchange of ideas and foster space for creative development. Yet, the scope of this fostered creativity is not limitless; participants may be surprised when they try to exercise their rights of ownership. Professors who create virtual worlds as aids to their instruction may discover that the offspring of their knowledge and research does not belong to them. Second, the commercial context has recently provided a hotbed of controversy concerning ownership in virtual worlds. Corporate entities offer tools for users to create their worlds, physically maintain the data representing these worlds, and often create scenarios in which characters in this world may be involved. They earnestly seek to protect the corporate creative efforts and, more importantly for them, potential profit. Some players in this context desire compensation for their skill and creativity, attempting to sell their finds and their creations in online auction houses. Other players simply desire to chronicle the adventures of their characters or their online community in other contexts. Yet players in this context often find their exercise of ownership confronted by harsh corporate enforcement. From these varied interests spring diverse, and often conflicting, approaches to determining ownership. These approaches include the application of existing intellectual property law6-consisting of patent, trademark, copyright, unfair competition, and trade secret-and the requirement of acceptance of licensing agreements,7 which, in the software context, often take the form of an End User License Agreement (EULA). Both of these approaches carry with them a set of presuppositions about whose interests should be protected. This set of presuppositions then defines how the rights of users/creators should be balanced against the rights of hosts/providers. …
13 citations
Additional excerpts
...255 Miller (2003), p 456; Balkin (2004b), p 2064; Schwarz and Bullis (2005), p 25; Marcus (2007), pp 78–85; Kane and Duranske (2008), p 13....
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...315 Miller (2003); Grimmelmann (2004); Jankowich (2006); Westbrook (2006) Blazer (2006); Chen (2006); Horowitz (2007); Holdaway (2007); Jacob Rogers (2007); Hunt (2007); Chin (2007); Marcus (2007), Sheldon (2007); Caramore (2008); Meek-Prieto (2008); Rosette (2008); Kunze (2008); Passman (2008);…...
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...29 Cockfield (2002), pp 354–355 n. 103; Holdaway (2007), p 1; Bartholomew (2007), pp 739–740; Miller (2003), p 437; Blitz (2008), p 1157....
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Posted Content•
TL;DR: In this article, embryonic stem cell research is examined and the current regulatory framework associated with this research in Australia is explored, with particular reference to the Andrews Report.
Abstract: In this article we examine embryonic stem cell research and explore the current regulatory framework associated with this research in Australia, with particular reference to the Andrews Report. We consider these issues in the contexts of: The increasing public scrutiny and accountability of biomedical research; the use of human embryos in research; the lack of uniform national regulation for embryo research in this country; and the general public debate about reproductive cloning. In these contexts, the current ART regulatory system is also considered.
13 citations