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I do not believe that this distinction between the market for goods and the market for ideas is valid….producers who are found to be so unscrupulous in their behavior in other markets can be trusted to act in the public interest whether they publish or work for the New York Times, the Chicago Tribune or CBS.

Ronald Coase, on his presentation of The Market for Goods, and the Market for Ideas in NYC in 1974: via Time Magazine

Today, though, markets are far more competitive than ever, just as conservatives maintain, but they’re also hugely more wasteful. The apparent paradox is resolved once we recognize that market failure stems from the very logic of competition itself. As Darwin knew, when individual and group interests diverge, competition not only fails to promote the common good, it also actively undermines it.

Robert Frank, economist, Cornell, remarking on market failure and the sometimes perverse effects of competition: via NYT

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Did the human capacity to reason evolve as a mechanism to acquire truth? Or was it only in the service of winning arguments?

This is the question at the center of an article by Hugo Mercier and Dan Sperber in The Journal of Behavioral and Brain Sciences. Described by the New York Times, the article observes that language and reason have little to do with “truth and accuracy.” Quoting Mercier:

Reasoning doesn’t have this function of helping us to get better beliefs and make better decisions. It was a purely social phenomenon. It evolved to help us convince others and to be careful when others try to convince us.

The position of Mercier and Sperber would appear to provide an evolutionary explanation for all manner of rhetorical devices and tendencies. Individuals, for example, have a tendency to ignore data that does not support their case. This phenomenon is called confirmation bias. In a sense, reason isn’t an instrument by which to acquire truth. Instead, it’s perhaps more ambiguous. Reason is a means by which to convince others, change their minds. Reason is coercive.

Mercier and Sperber’s argument has inflamed some elements of the academic community. Darcia Narvaez, an associate professor of psychology at the University of Notre Dame diminished the theory as a moment of academic fashion:

[it] fits into evolutionary psychology mainstream thinking at the moment, that everything we do is motivated by selfishness and manipulating others, which is, in my view, crazy.

Others have remarked that Mercier and Sperber’s argument is in fact an example of the wisdom of crowds or the aim of deliberative democracy, described by Rawls and Habermas. Jonathan Haidt, a professor at UVA quoted by the Times, suggested as much:

Their work is important and points to some ways that the limits of reason can be overcome by putting people together in the right way, in particular to challenge people’s confirmation biases.

Mercier and Sperber appear to be heading in this direction, as well. Their article points to the advantages of group dynamics in the development of strong arguments. The group, after all, is equipped to present and vet many perspectives in rapid succession. The group could conceivably pick apart instances of confirmation bias and illuminate flaws in reasoning. According to Mercier and Sperber,

At least in some cultural contexts, this results in a kind of arms race towards greater sophistication in the production and evaluation of arguments. When people are motivated to reason, they do a better job at accepting only sound arguments, which is quite generally to their advantage.

Yes. Reason may be coercive, but Mercier and Sperber seem to be saying that with enough reason, enough speech, the group should arrive at a better outcome. Indeed, it’s reminiscent of the logic underpinning the metaphor of the marketplace of ideasthat more speech and more argument might spawn better speech. Justice Holmes, who coined the phrase in 1919, would be proud.

The marketplace metaphor, however, is flawed. As we’ve seen at other times, through the views of Ronald Coase, Justice Stevens, and others, an efficient market in speech does not equate to some Spenserian concept of survival of the fittest.  Indeed, Mercier rather off-handedly observed, “It doesn’t seem to work in the U.S.” Which leaves us with a question, just what is this metaphor we call the marketplace of ideas? Is the mere presence of a group itself sufficient to present and vet a variety of arguments? How do economic resources distort the marketplace of ideas?

it is pictures rather than propositions, metaphors rather than statements, which determine most of our philosophical convictions
–Richard Rorty, Philosophy and the Mirror of Nature

Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.
Benjamin Cardozo

We exist in a free marketplace of ideas, or so we might say. The Supreme Court’s recent opinion on Citizens United v. the Federal Election Commission sought to protect that marketplace by curbing regulations on corporate spending on political speech. As the Court opined, these regulations constituted censorship, and “the censorship that we confront is vast in its reach.”

The majority opinion of Citizens United v. FEC has been framed in many ways. President Obama observed in his State of the Union, “the Supreme Court reversed a century of law that I believe will open the floodgates for special interests.” Lawrence Lessig characterizes it as indicative of the progressive and now explicit capture of our elected institutions by corporate interests. And perhaps more sinister, Ronald Dworkin, writing for the New York Review of Books, speculates that the majority repositioned the case, accelerated its consideration, and designed the decision to aid the Republican party in the 2010 election season.

The Supreme Court’s majority countered that these concerns are moot to hysterical. Instead, they asserted that the proper function of the free marketplace of ideas relies on liquidity, and what better way to increase liquidity than to throw out the McCain-Feingold bill, undermine longstanding bans on direct campaign contributions that date back to 1907, and otherwise tear down the restrictions that had kept corporate spending in check. The free marketplace for ideas, after all, would yield the fittest through rude competition. The question before the court was only whether that marketplace was free. From there, the Roberts Court could presumably “call balls and strikes.” Read the rest of this entry »

this push towards things becoming more open is probably the most powerful and transformative social change… We may be the company that really leads this movement….It’s not clear that anyone else is going to manage it correctly.

Mark Zuckerberg, outlining the steady erosion of the concept of privacy in our time: WSJ

Jessica Vascellaro’s cover-story in the WSJ seats Facebook in a tension between going public and Zuckerberg’s remarkable ability to “delay gratification” and take a seat in “a long queue of tech barons with grand ambitions.” The real story, however, may be in her subtle jibes at one who might become “world’s richest twenty-something.” More than a thinly veiled personal attack, Vascellaro may be hinting at something more substantial: that the question of privacy in the 21st century will be meaningfully shaped by an ambiguous and controlling figure. Read the rest of this entry »

Bruce Sanford and Bruce Brown commented in the WSJ on “Google and the Copyright Wars” (11/12). Many are focused on the status of orphan works in the Google Books project, but Sanford and Brown argue that the idea of fair use and its application by search engines is the controversy’s center, not orphan works. Sanford and Brown would say that a search engine’s use of the web’s content is definite and definitely unfair.

Fair use of a book’s content, a website, or even the news underpins a search engine’s ability to find and deliver websites to users of the internet. Sanford and Brown stake out a position for search engines that is similar to a public library. Just as a library can employ the contents of its archive to establish an index for its patrons, the search engine uses the contents of the internet to establish an index for anyone at all. Sanford and Brown, however, contend that search engines are not libraries, so fair use does not apply.

Sanford and Brown argue that two distinctions separate search engines from the library model. Search engines not only copy text, they reproduce it in their results as snippets. Rights of reproduction are protected for copyright holders. Second, search engines sell advertising, and the sale of advertising is contingent on their ability to copy, store and reproduce copyrighted material. These distinctions, argue Sanford and Brown, disqualify search engines from the safe harbor of any exemption made for libraries. Their remedy: legislation.

The problem is, search engines don’t find safe harbor in the library model, and legislation is not the answer. Yes, a library applies fair use in its practices, and search engines have been compared to them in the past, but not all applications of fair use are found in the confines a library. This may be why they are so quick to demand legislation to expand copyright, even though expanding copyright may drive more business to the lawyers who protect it than the websites involved.

The Ninth Circuit court framed a four factor test for fair use in the case of Perfect 10 v. Google, et al in May 2007. The test would distinguish between copyright infringement and fair use in the case of Google’s use of Perfect 10 material in its search results. The four factors comprise: the purpose and character of the use; the nature of the work, ie fact-based or creative; the amount of the work used; and the effect on the market for the work. None of them invoke the metaphor of the library used by Sanford and Brown.

When Google displayed the Perfect 10 images, the Circuit determined that all four factors weigh in its favor. The images may have been highly original, but the results incorporate “an original work into a new work, namely an electronic reference tool,” and this is highly transformative: “a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.” Though Google would use a degraded thumbnail version of the image, its “use of the entire photographic image [is] reasonable in light of the purpose of a search engine.” The Ninth Circuit, therefore, reasoned that Google’s use of Perfect 10 thumbnails would be considered fair use. Though it didn’t provide a decision, it did suffice to vacate Perfect 10’s preliminary injunction against Google.

Sanford and Brown mistake the metaphor of a library as the only example of fair use when alternatives, such as the Ninth Circuit’s opinion, are perfectly acceptable. Perhaps this is why, having fleshed out their metaphor, they seize on legislation as a solution. Indeed, they would have Congress assert, “once the cache is monetized for the benefit of a search engine, the line of copyright infringement is crossed.” Isn’t this a sort of Hail Mary pass to rights-holders?
Legislation could make it illegal to monetize a cache without permission, but it’s not the panacea that Sanford and Brown are driving at. If the legislation mandated payments for rights-holders, it would, but this is probably not a suggestion that would be found in the pages of the Wall Street Journal. More likely, it would not, and it would leave websites in the position of the prisoner’s dilemma. If everyone cooperates and insists on payment, it will be to their mutual advantage, but the search engines direct so much traffic that each website has an incentive to break ranks; hence, everyone reluctantly opts in for fear that they’ll be the lone hold-out. In effect, it’s as though the legislation never happened, with one important distinction: there’s a new law on the books that requires a few good lawyers to understand. Perhaps that’s what’s really driving Sanford and Brown’s comment.

There is an exception, however. Not all players are equal in this game. Some may wager that holding-out is viable regardless of legislation or whether others do. That’s exactly what News Corp has done. They have begun negotiating a possible payment from Microsoft for the exclusive right to index their content. Though derided by many on the internet, should they find an agreement, their example will prove an important experiment in the question of paying for content.

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