Law in the Internet Society

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JakeWangPaper1 5 - 27 Jan 2010 - Main.EbenMoglen
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 -- JakeWang - 30 Nov 2009
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This is a really interesting attempt to make headway on these issues using pure conceptual formalism. There are a number of objections that could be made to your definitions, but they don't really matter, because those are your definitions, and in a formalism of this kind the definitions are taken as given. And as long as you remain in the realm of pure conceptions, without considering facts of any kind, we won't notice the flaw in your argument: Contract is said to provide the option of performance or breach with compensatory damages, and this reversability is central to the distinction you want to draw. But no one knows how to reverse the release of information, so that there is no practical reversability for contractual transactions in personal information. Because one can never put the toothpaste back in the tube, as it were, there is actually something close to a property transfer occurring, which puts the whole conceptual argument out.

The traditional solution in such situations lies in equitable instruments, like the constructive trust imposed on the possessor after breach, or some equivalent method for imposing a fiduciary responsibility. But in the real world of transactions in personality, there's no way back: this is also what makes identity theft such a serious problem, and why biometric identification mechanisms are such a terrible idea.

So, as is generally the case for a realist like me, the major benefit of conceptualist experiments like this is that they show why conceptualism never works. Which isn't to say that you can't rescue this argument, at least partially. I think to do so you'd have to be willing to deal with facts a little more, which will reduce the conceptualist purity of the essay, but that may be worth it to you to explain why we should be allowed to transact over personal information. For me, this isn't a game worth winning, because that proposition is so evidently true that I can't understand anyone's denying it. I'm not sure who's supposed to be on the other side of your argument, which is one of the other problems conceptualism often has: it gives itself medals for proving the uncontested.
 
 
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Revision 4r4 - 30 Dec 2009 - 04:06:02 - JakeWang
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