A confluence of stories over the past few days has me thinking about the commerce, politics, and ethics of our current digital landscape. More specifically, why we spend so much time arguing about music piracy and ignoring other pressing concerns like privacy and digital divide issues. I think it has a lot to do with modes of moral discourse.

1) So, I’m gearing up to teach my “Technology Ethics” course again this fall. I haven’t taught it in a few years, so I am spending a lot of time updating case studies for the class. Tech changes fast, so cases become irrelevant pretty quickly.

One case, though, has stayed relevant since I started teaching courses on tech ethics ten years ago: music piracy. By 2002, Napster had already come and gone (at least legally speaking), and there was a general sense that something immoral—even if legal—had happened: culture had lost to commerce. So, while legally resolved, the question of music piracy did not die. Yesterday, Cory Doctorow wrote a really evocative piece at Locus Online about why it won’t die. He astutely describes music’s multi-level integration in human life, and in doing so, shows why it won’t go away anytime soon. As he puts it “Music exists in a sweet spot between commerce and culture, individual and collective effort, identity and industry, and digital and analog – it is the perfect art-form to create an infinite Internet controversy.” (The only thing I’d add to his great descriptive work would be the pervasiveness of music in religious ritual.)

2) Yesterday, the European Parliament rejected the international Anti-Counterfeiting Trade Agreement (ACTA) by a vote of 478 to 39. ACTA, proposed in 2007 by the US and Japan, was aimed at coming to international agreement about how to reduce copyright infringement and counterfeiting. For years, it was negotiated in secret and was able to gain quite a bit of momentum within closed circles. But as the details were leaked over the last year, popular, hacker, political, and scholarly opposition mounted. Like the ill-fated SOPA/PIPA legislation in the US, while it had provisions that might actually reduce criminal activity, it also included provisions that would criminalize many common activities and fair uses. Opponents were—both within Parliaments and the public sphere—successfully made the case that the legislation did not fit the social and legal realities. (A lot of those links are to ArsTechnica. As far as I know, they were the only tech news source paying attention to ACTA in 2007.)

3) July 1 marked the possible start date for the new “Copyright Alert System” here in the United States. The CAI is a system of copyright oversight and education being implemented by internet service providers. It was developed as a part of the 2011 “Memorandum of Understanding” agreement between content creator organizations like the RIAA and MPAA and major IPS like Verizon, Comcast, Time Warner, and Cablevision. This was a “voluntary agreement” by the participating bodies, but its presence shunted broader existing movements to offer legislation requiring law enforcement and ISPs to police copyright oversight. The July 1 date follows a previous implementation delay, and may not hold.

The most controversial part of the program requires ISPs to track suspicious peer-to-peer filesharing by their users. When suspected infringement has occurred, users will be notified, and if repeated, may be barred from internet connection. Many refer to this as “six strikes, you’re out” policy. The program’s oversight organization, The Center for Copyright Information, emphasizes the role of ISPs in raising awareness of copyright law, referring to it with the “big brother” sounding phrase “progressive educational system”. They have an advisory board that has some influential “internet civil liberties” folks, although the board may have little actual power. Despite the educational angle, their still remains a punitive edge to the whole system. (It reminds me a lot of the Hollywood’s “voluntary” adoption of the “Hayes Code” of self-censorship to avoid state-by-state legislation.)

So how does this all fit together? From the ashes of the Napster lawsuit rose a free culture movement that has worked to influence internet policy and social mores in the direction of pulling back on copyright protection in the name of spreading creativity and culture. The aforementioned Corey Doctorow is one of the movement’s most articulate proponents. Over the last few months, we’ve seen some high profile wins for the “free culture” movement, most notably the SOPA/PIPA defeat here in the US and the ACTA defeat in Europe.

Yet, despite these wins, the issue of copyright enforcement is not going away. While this version of ACTA is finished, many believe it is not last we’ll hear on the subject. The same goes for SOPA. If the Copyright Alert System is any indication, the arena for copyright enforcement will be the private sector, not legislation. Free culture on the net is great, but if you can’t get an internet connection, what good will it do you? The RIAA and MPAA lost the ACTA/SOPA/PIPA battles, but they may have won the war. (Anti-trust concerns notwithstanding.)

The key in this victory seems to me to be about moral discourse. In 1988, James Gustafson published a great little book entitled Varieties of Moral Discourse. (Out of print, but reprinted in the book Seeking Understanding.) Originally delivered as a series of talks, Gustafson suggests that sometimes we talk past one another, and sometimes our moral argumentation fails to achieve its goals, because we are speaking in different ways. Some people engage in prophetic discourse that is aimed at pointing out evils and rallying people to confront them in society. Others engage in narrative discourse that tells stories in order to reveal values and inspire commitment. Both of these seek to move people to action. But there is also the ever important policy discourse, which focuses on finding actual solutions to problems in real political and social situations. Finally, there is the important ethical discourse, which is technical analysis of the conceptual backing of moral claims done in order to clarify positions and unveil inconsistencies and implications.

Of course, people shift between these different types of discourse. We may tell stories sometimes, consider policy options at other times, and rage against the machine at others. Gustafson’s categories can help us think more deeply about who we are and how we relate to the world.

More importantly, the categories of moral discourse are particularly useful, I think, to help us see the contours of public debate and social change. So often, it seems that we are speaking past each other. Our discourse on music piracy is a great example. Some people tell the stories of the RIAA lawsuits as a way to show the injustice of a system that would impose more than a million dollars in damages against a single mother who shared less than 30 songs. Others—like Doctorow and Ari Emmanuel—issue prophetic diatribes against a system that they see as alternately destroying culture for all in the name of the greed of a few or destroying the American intellectual property industry. Still others try to work out policies that will ensure the continued functioning of society, yet don’t presume that any solution will live up to everyone’s expectations.

It seems to me, though, that given the legal and bureaucratic context in contemporary America, it is likely that those who know how to craft policy discourse and deploy it within the power structure end up shaping law more successfully than the prophets. That’s because society runs on policy. Policies are the software for the hardware of a culture. They govern how things are processed through the various structures and industries. No matter how right they are, the prophets will remain marginal unless they know how to talk to policy makers in ways that easily translate to policies that can be accepted by governing bodies. That means incremental change—the bane of the prophet’s existence!

Case in point: the Copyright Alert System. Protesters were vociferous enough with their prophetic discourse to make the ACTA, SOPA, and PIPA policy proposals look untenable. Some people cited problems with specifics of the legislation, but it seems to me (at least with SOPA and PIPA) that the biggest problems were political: policy makers saw their continued ability to effect policy endangered—a.k.a. they might lose an election—if they voted for the laws. But when political calculation is out of the picture, policy gets made. Such was the case when the content industry, the ISPs, and the FBI got together and brokered the “Memorandum of Understanding.”

When the SOPA legislation went down, various other proposals were offered in its place, mostly by those in the tech industry. The problem such efforts is often twofold: their authors either have no place in legal or governmental policy-making bodies or they are written in a style that is prophetic, and so not operationalizable in a contested policy space. No matter how right it the free culture perspective is, it will be a long time before the US government or big business adopts a “free culture” perspective. That discourse is so foreign to them that I don’t think they even really hear it.

So, the question becomes: what can proponents of free culture do to move society in the direction of a free culture through articulating policies that would be easy to implement by governments and industry, and thus have a real possibility of being adopted? And even more important, how can free culture advocates become a part of the policy making machine?

Tip of the hat to Dr. Nadia Delicata, whose talk on Theology and rhetoric at a recent conference has me thinking about discourse and policy making.