Error: I'm afraid this is the first I've heard of a "comments" flavoured Blosxom. Try dropping the "/+comments" bit from the end of the URL.

Sat, 31 May 2008

Copyrighting Marriage

"Funny, you like Samurai Sword; I like Baseball."

–Hattori Hanzo in Kill Bill Vol. 1. Caps mine.

As I explained a couple years ago, I don't generally want to use this space for political rants, especially on a hot-button topic like the retronyming of marriage. Unfortunately, this month I seem to be a little short on better material (yet again, some might say). The topic seems, well, topical. So a rant is what you are going to get.

I have become intrigued with the concept of "tradition" in the context of the culture wars and, oddly, in the context of intellectual property. I came up with a few ideas that seem better suited for burning a few thousand words with here, rather than to bore my family with over the dinner table. I hope that this text will not be an overly uncharitable or rhetorical rant. I'm shooting more for geek weird philosophic, impressionistic, and quasi-static ironic. If I miss my mark, I will accept deserved criticism in the tradition of the iron writers: whatever that is. We have yet to establish what our tradition might be, but once we do forge that tradition – it'll be as hard to bend as hammered steel.

Anyway, my obsession with the topic was sparked a year or two ago when Shiloh pointed out an excellent article by Lee Harris on the topic of tradition, particularly on how it relates to things like gay marriage. I won't undertake the detailed technical points of a critical refutation of his ideas. Instead, I'll merely riff on my overall orthogonal view. Anyone is welcome to rebut or amplify if he or she can find enough coherence against which to do so. Here we go.

As a person who has a deeply held and arguably irrational trust in rationalism, I can't swallow Lee Harris' arguments unmodified, although I may accept some of his conclusions. Here's the crux of my disagreement: although there are other factors, I do believe that as humans we must make choices for carefully considered reasons based on some objective set of values that we share as sentient, communicating, intentional beings. Since we are also finite beings, our values are bound to be imperfect and necessarily provisional, but they are objectively "there" none the less.

Now here's where some people tend to lose me. I don't claim there are some ideal values we approximate. Rather, I believe merely that we do our best, as humans, to agree, rationally and objectively, on what constitutes right and wrong. These values are objectively decided, and may be revised over time – not because of some deterioration of our resolve to maintain them, but because new facts about the world allow us to improve and refine the system. Although the progress of mankind has not uniformly advanced, and the results of the past are not necessarily an indicator of future results, I do believe that progress is possible. One could say it this way: "Yes we can."

Again I need to warn that I'm not being a Platonist here. I say there is no ideal, unchanging, perfect "good", perhaps with perfect digital copies of the Good downloaded into the minds of each and every Judeo-Christian-Equivalent One-God. There is no ultimate code that we trust exists and strive to asymptotically discover. No, there isn't. The stone tablets are carved by man. For evidence I offer the many times in history that society has "realized" some formerly considered good practice was actually evil – or visa versa. Whole paradigms of moral reality have been redefined, often with a very painful process. Consider slavery as one of countless examples. Stone tablets have great UV resistance, but they are bitch when you need to fix a typo.

The process of moral refinement over the centuries seems to me to more resemble the process of science or mathematics than the revelation process (Moses and the tablets) that is often suggested by religious types. Maybe it's my atheistic bent, but the way I see it, moral theories are put forth and are tested pragmatically in social use (rather than by strict experiment) and gradually, over time, some are objectified into moral tradition. Others are discarded or modified when new facts from human interactions reveal weaknesses in the structure. This, of course, is not to claim that ethics is a strictly deductive science. Heck no. At least not yet. Thus far in our history, as muddled as it seems to me, ethics barely deserves to be compared with Alchemy.

Of course, one could argue that it's pointless to talk about something we really know so little about. On the other hand, lack of knowledge never stopped me from venturing forth an idea and the current topic is no exception (especially when iron writers prize money is at stake). Without detailed understanding of the process, I'm still unafraid of saying that society – all of us together – decide on the Good as a shared objective understanding.

I don't see this as a risky pronouncement. Solipsistic ethics is not ethics. In our solo contemplation of a moral choice we at least ask ourselves what is right, thus splitting into a self referential committee of two. Or we could ask "what would Jesus do?" It amounts to the same thing. I can't see how you can do ethics as a brain in a vat.

This, of course, is where traditions come in. They objectify these shared understandings about what is Good and what is Right. They give us something outside ourselves to talk and reason about with other people. In that sense, you can't have ethics at all without traditions. You need a framework of human processes that hold things together, serving as a ground for the figure of our freedom.

But if a society decides what is Right, isn't that social relativism? Are these understandings arbitrary? If one society condones, say, downloading copyrighted movies, and another society has a taboo against the practice, are they both equally right? Is ethics the random convergence of crowds seizing on some pattern of behavior to call good? Could two societies develop contradictory moral schemes that disagree on most every point?

There are a lot of classic answers to that, but my answer is empirically and secularly this: No, I don't think that could happen. At least I claim that scientific evidence suggests these separate groups of monkeys banging on ethical typewriters won't be totally opposite, not even mostly opposite. For one thing, anthropological data seems to indicate that socially non-interacting human monkey tribes everywhere tend to come up with very similar moral structures. There can be differences, but anthropologists and sociologists point all sorts of determinism and general principles that indicate underlying structure.

Why are moral codes so similar, we wonder. Is ethics based on 'visceral' decisions resulting from animal instincts that developed as a result of evolutionary forces? Or 'visceral' decisions resulting from instincts that developed as a result of 'good parenting', the parents presumably learning the rules from their own parents and so far back along the line to Moses?

No, but this is getting warmer.

The thing that separates us from animals is that we can talk about things. This gives us the unique ability to talk about what should be done. My claim is that the good and the right is a result of this talking – everybody talking. This rant itself is part of the talking process, I guess. Visceral and instinctive intuitions go into the talking, so does reason along with facts about the world. It's all ground up into the sausage of ethics. Since we all use ethics to solve a set of practical problems we all share, the solutions resemble each other. One society may have bratwurst, another might have kielbasa, but generally it looks basically like the same stuff and tastes pretty good with mustard and sauerkraut. There's a "family resemblance, to use Wittgenstein's term, born of the common intent.

Because of the Good Trick of talking and reasoning, we are better than most animals at working the advantages of cooperation in games. Most of this is conscious, giving us a calculated edge, but some admittedly remains the result of evolved instinct – instinct that we do share from our animal brothers. There is evidence that the main evolutionary purpose of some social traditions, such as marriage and religion, may be a formal structure to advertise to others that we are cooperators – that we will not defect when faced with a prisoner's dilemma. Should we mess around with this altruism-generating structure without fully understanding its function, we risk destroying the advantage it provides us. But to the extent that we do understand it, we may be able to tune it to work even better, perhaps by including more valuable cooperators that would be otherwise excluded.

See, that's the thing. If you see ethics and moral traditions as Platonic ideals, then they really can't be changed. If you see them as revealed to us by God, they can't be changed either (unless we change God's programming, and that's Rule #1: no messing with God). But if you see morality as a provisional scheme negotiated over the centuries of humans goring each other's oxes, then it can change for the better. From what I read in history, I think we are morally superior to what we were a few millennia ago. This improvement isn't because we have gotten to know God's plan better, it's because the society of humans have worked out how to live with each other better.

We are able to run our lives (or anything else) better and better by sustained cooperation and reason rather than instinctive and irrational knee jerk reflexes. Thus, if an unquestionable tradition or ceremony seems to be questioned by someone (e.g. a gay couple wanting to be married, a researcher wanting to experiment with stem cells, or a protester burning a flag), before anyone heaps irrational scorn on the violators based solely on a visceral reaction to the idea of what they are doing, it behooves the scorner, in my view, to have some reason for the scorn, other than an appeal to emotion, self evidence, or the circular justification of the tradition or ceremony itself. They need to consider all the ingredients that made up the ethical bockwurst and make a reasonable attempt to explain why a little more salt wouldn't make it taste better.

But before I get much more preachy and bombastic about my enlightened defense of provisionalism and rationalism, let me say immediately that I can understand heaping scorn on people for no better reason than gut reactions.

If you want to talk about traditions, and you want to get under my elitist, liberal, left wing skin, looking for visceral, right wing reactions based on nothing but blind chauvinism, all you need to do is talk about changing the game of Baseball. In this realm, I can understand the gut-level, righty perspective of the Lee Harris article – I understand it like a high and tight 95 mph fastball.

Baseball is an inviolable tradition for me. It's ceremony cannot be altered without risk of ripping apart all that is of value in the game. There are questions about Baseball that cannot be asked, arguments that cannot be formulated. Baseball does represent a Platonic ideal. Three sides in a triangle; three strikes and you're out.

It's not just me. No fans want the game of Baseball to change. No true fans, anyway. I'm talking the moral majority of true baseball fanatics here, not just generic "sports fans" that surf over to a Baseball game from the monster truck rally on ESPN2 during commercials. The proper-thinking conservative fan of Baseball, as opposed to the "progressive" sports fan, represent opposite sides of the sports culture war.

Not to belittle those progressive sports fans. Although I don't share their viewpoint, a conservative sportsman such as I can't have too deep contempt for such a "gentleman" of the opposition in this war. I hate to generalize about their kind, but it's the advertisement tolerance of these beer drinkin', truck buyin', Viagra poppin', children of God that turn the crank of the big consumer machine in the USA. They fund a large chunk of the services arrayed for my convenience and pleasure and pay a lot of taxes. I for one sure do love all of 'em. They make wonderful places like Wall Mart possible. And although I do most of my shopping online, and earn my money on the Internet, somebody still has to drive the truck to deliver my home heating oil, cook my sausages (links, not patties) at the diner, and haul away my trashcans filled with empty shipping boxes from LL Bean and Amazon.

Ahh, yes, the generic, progressive US sports fan. They watch those Coors Light ads and because the "Coors Imperative" is hardwired into their visceral system by whatever set of admonitions, shouts, screams, slaps, spankings it took to etch the apodictic quality of this message into their core character, they run out and buy those 30 packs of silver bullets for only $17.95 at the Safeway.

The generic US sports fan wouldn't give a chrome plated shit if Baseball changed. If the design of Baseball was left up to them Baseball would change in a heartbeat. And the "Heartbeat of America" is pretty dang quick.

If you are with me thus far, and are a brother or sister at arms in this war, let me risk nauseating you with some predictions about what would happen if the left-leaning "Coors liberals" win the war.

First of all, despite pervasive propaganda to the contrary, Baseball is too fast a game for sports liberals to comprehend. Unlike football, baseball demands the concentrated attention of a fully functioning brain operating over long periods with no beer/commercial/piss breaks. The first thing to be done would be to add delays to slow the game down to an acceptable pace. I know, it's ridiculous, but bear with me here.

How would the marketing machine slow down baseball to make it more palatable to the sports liberal? First they have to have timeouts – one per team in the first inning, two in the second, and so on. Next, I'm thinking they would outlaw the catcher giving crotch signs to the pitcher, forcing him to walk out to the pitcher every time. That would allow a 30 second commercial to be shown every pitch, slowing things down to a more acceptable pace. In fact, maybe just skip over all the pitches until the ball is in play. That would allow even longer commercial breaks, with quick, bite-sized action punctuating them. This is essentially the opposite of what we have now in baseball, and is roughly equivalent to the idiotocracy of pro football.

That's only one idea. More changes would be needed. Too keep the Good ol' boys surfing back, we'd need cheerleaders, explosions, more serious injuries. Lets use a grenade instead of that silly horsehide pill.

Maybe I'm exaggerating a little about the explosions, but the sad truth is if market forces were allowed to work on baseball, baseball would change to "maximize profit" for the commercial interests associated with the game. Not that there's anything inherently wrong with capitalism. I love maximizing profit as much as the next guy. But left unchecked, the forces of the market would surely transform the game into something unrecognizable.

The skin crawls at the horror that might come to pass. Imagine, what if somebody suggested – please forgive the shocking example – that instead of the center of the game being between a pitcher and a batter, the rules were changed so that two batters (from opposing teams, we hope) would face each other! Or two pitchers faced each other! I know it seems perverse, sick to even contemplate, but it could happen. You couldn't call the contest Baseball, that's for sure. If you did, the word would have morphed beyond recognition.

Thank God there's a special protection codified by Supreme Court decision that protects the sanctity of Baseball from such rude erosion and transformation. It's effectively part of the constitution. There is only one Baseball.

Just like there is only one Mickey Mouse. Back in 2003 SCOTUS ruled that what the US Constitution says about "limited terms" is more of a guideline than an actual rule, and therefore congress was well within its rights to guard the cultural traditions of the US by indefinitely extending copyright protection to everyone and everything, and thus saving Mickey Mouse and Pooh from becoming melted into the "dip" of open culture.

Thank the Gods, I say again, that when put to a vote, the majority usually gets its way. Who knows what might have happened if those lovable characters were severed from the benevolent (and profitable) guardianship of the Disney corporation and cast off to fend for themselves is the public domain culture without a way to pay the rent. Unthinkable. Would Mickey be able to afford speech therapy? How would Pooh ever buy a pair of pants? The though of such an atrocity sickens me. So much change in the world: too much change. No wonder we become bitter and cling to our guns, bibles, heterosexual marriages, Baseballs, Mickeys, and Pookahs.

Cling for effectively unlimited terms, we cling. Unlimited terms. That's tradition. I guess it was easy to set limits on traditions when the USA was young, but nowadays we like our refined sausage recipe to stay just the way it is.

Obviously, my banter in the previous few paragraphs has leaped over a pretty large logical abyss. Are ethics, baseball, and intellectual property really all the same thing? Could some corporation, say, claim a copyright or patent on the term "marriage" as being a registered trademark that refers to the union of a man and a woman. Any other use of the term "marriage" or any conflicting or confusing pictures, descriptions, or accounts of the ceremony without the consent of Heteronupt, LLC, is prohibited.

Yes, I think there's an argument to be made that the IP debates are an abstracted form of ethics in a microcosm. As you recall, I argued that ethics was a result of communicating ideas. When we communicate, we want freedom to share ideas, but also stability and the right to hold back. This is what intellectual property and open culture concepts are all about.

Some demand a constitutional amendment defining marriage. I think it's easier than that, at least if we can agree that processes like marriage can be owned. All we'd need then is for SCOTUS to rule as they did for the dead guy that drew Mickey Mouse, and Curt Flood's employer, that the concept marriage belongs to somebody, and therefore cannot be changed without infringing on the owner's rights.