One To Watch: Google Antitrust Case

Keep your eyes on this one:

Justice Dept. Opens Antitrust Inquiry Into Google Books Deal (By Miguel Helft, NYTimes)

The skinny:

The settlement agreement stems from a class action filed in 2005 by the Author’s Guild and the Association of American Publishers against Google. The suit claimed that Google’s practice of scanning copyrighted books from libraries for use in its Book Search service was a violation of copyrights.

The settlement, which was announced in October, gives Google the rights to display the books online and to profit from them by selling access to individual text and selling subscriptions to its entire digital collections to libraries and other institutions. Revenues would be shared between Google, authors and publishers.

But critics say that Google alone will have a license over millions of so-called “orphan books,” whose authors and right holders are unknown or cannot be found. Some experts believe the orphan works account for the bulk of the collections of some of the major university libraries, that have allowed Google to scan books.

Some librarians fear that with no competition, Google will be free to raise prices. Some scholars have also said that the system for pricing books could raise antitrust concerns.

Martin Interview

An interesting interview with Kevin Martin, former FCC Chair.

On Flyvbjerg and Phronēsis

Some notes on Bent Flyvbjerg's Making Social Science Matter: Why Social Inquiry Fails and What Can Make It Succeed Again (Cambridge University Press, 2001)

Flyvbjerg begins with the fundamental problem of the social sciences vs. the natural sciences. I.e., is a true science of society possible given the variability and slipperiness of the human condition? Of course, this fundamental question goes way, way back. Flyvbjerg himself reminds us that this basic question plagues the social sciences from their origin. For example, Weber recognized the distinction between instrumental rationality (Zweckrationalität) and value rationality (Wertrationalität), a distinction that Foucault and Habermas in different ways recognized as central to their own programs.

Consider, for example, the high-modernist apotheosis of urban renewal projects. The engineering model at the core of this effort recognized a host of pathologies endemic to cities (crime, poverty, disease, etc). Since these problems seemed to reside at a large scale, the solution during the 50s and 60s was large-scale demolition of large swaths of inner cities without regard to the preferences of individual dwellers of those places. In other words, instrumental rationality viewed urban decay as a problem and presented a solution (viz., destruction and reconstruction) as the proper solution. But this perspective failed to view the particular circumstances of the particular denizens whose homes and lives were turned upside down by the process. Planners point to this period as a moment of reckoning, an occasion to reflect on if not reject in whole cloth their approach. Rather than proffering solutions from the outside, planners shifted to accommodate the perspectives of those whose lives might be touched by such projects (i.e., to accommodate value rationality).

But, as Flyvbjerg describes, this recognition of the limits of human knowledge is nothing new. Indeed, Aristotle understood that scientific knowledge (episteme) is bracketed by specific contexts; there are certain domains where this sort of understanding (and action based on it) do not obtain.

"Episteme thus concerns universals and the production of knowledge" (p. 56)

"Whereas episteme resembles our modern scientific project, techne and phronesis denote two contrasting roles of intellectual work." (p. 57)

"Episteme    Scientific knowledge. Universal, invariable, context-independent. Based on general analytical rationality. The original concept is know today from the terms "epistemology" and "epistemic"

Techne        Craft/art. Pragmatic, variable, context-dependent. Oriented toward production. Based on practical instrumental rationality governed by a conscious goal. The original concept appears today in terms such as "technique," "technical," and "technology."

Phronesis    Ethics. Deliberation about values with reference to praxis. Pragmatics, variable, context-dependent. Oriented toward action. Based on practical value-rationality. The original concept has no analogous contemporary term." (p. 57)

Flyvbjerg explains episteme as "know why" and techne as "know how," but doesn't proffer a similar schtick for phronesis. I would suggest that it is "know when". It's also important to note that phronesis is embodied (i.e., it doesn't exist without the phronimos, or the person of practical knowledge). Phronesis is thus best thought of as the judgment about what can be done given specific circumstances rather than what is physically possible. Perhaps it is best understood as the skill of knowing what is feasible rather than possible. As an example, when is the best time to call for a vote on a bill?

Phronesis "focuses on what is variable, on that which cannot be encapsulated by universal rules, on specific cases….requires an interaction between the general and the concrete; it requires consideration, judgment, and choice." (p. 57).

Flyvbjerg's basic argument, similar to that made by other previous advocates of phronesis, is that the social sciences encounter questions such as "What should be done?" and "What is desirable?" and perhaps "Who gains and who loses?". There is no universal, scientific answer to such questions, because they are rooted in particularity both temporally and spatially.

Most importantly, Flyvbjerg offers a set of "Methodological guidelines for a reformed social science" in Chapter 9:

1. Focusing on values (p. 130-1): three questions animate the effort at steering toward value- rather than instrumental-rationality. (Where are we going? Is it desirable? What should be done?).
2. Placing power at the core of analysis (p. 131-2): Not just "who governs?" but "what "governmental rationalities" are at work by those who govern? Power is productive and positive (even though it can be restrictive and negative).
3. Getting close to reality (p. 132-3): "Phronetic researchers seek to transcend this problem of relevance by anchoring their research in the context studied and thereby ensuring a hermeneutic "fusion of horizons". This means being close to the ground (the group or phenomenon) at all stages of research.
4. Emphasizing little things (p. 133-134): focus on minutiae, work phenomenologically. "thick description".
5. Looking at practice before discourse (p. 134-5): focuses on practical activity and practical knowledge in everyday situations.
6. Studying cases and contexts (p. 135-6): cases exist in context. And the essence of those particularities is only possible in attending to those cases.
7. Asking "How?" Doing narrative (p. 136-7): quotes MacIntyre, "I can only answer the question, "What am I to do?" if I can answer the prior question "Of what story or stories do I find myself a part?"
8. Joining agency and structure (p. 137-8):
9. Dialoguing with a polyphony of voices (p. 139-140):

And Now For a Sample of What is To Come...

So I've written before about the rather clunky (if not anachronistic) set of agencies that will be driving the Broadband Stimulus $$. My claim in the past is that the relative slowness off the blocks of this initiative is attributable at least in part to the unwieldy set of agency interactions that the program calls for. Take, as a mere example, the ambiguity at the core of the Broadband Stimulus: is this an effort to address a rural problem or an "underserved" problem (since they're not one and the same, especially as our definition of what meets a basic level of service evolves).

Now we see that this fundamental problem of definition exists within a single agency. A report released on Monday (4/13/2009) by the Department of Agriculture's inspector general finds that the Rural Utility Service has been making too many loans in non-rural areas (tsk! tsk!):

In 2007, Congress requested that we determine if RUS had taken sufficient corrective actions in response to the issues disclosed in our report. In particular, members of the Appropriations Committee expressed concerns that RUS, “instead of focusing on rural areas that have no broadband service,” continues, “to grant loans to areas where broadband service is already being offered by private providers. Such practices penalize private providers that have already built broadband systems in the area. Such practices also do nothing to further the goal of bringing broadband to unserved areas.”

Take note of the distinction between rural/urban and served/unserved. And ask yourself whether a 200 k.b.s. standard is sufficient to claim that service is being provided. And while you’re at it, ask yourself if having a single location in a given zip code operate at this anemic standard is sufficient to claim that service is being provided. In both cases, the FCC claims it is. Hopefully, in the coming months (or years), we’ll have better data on present and planned deployments and have federal policy pushing a higher standard. But not yet.

Back to the report, since Congress raised this concern, the inspector general’s office issued a report to RUS, outlining several steps the agency should take. Alas,the IG report

found that RUS has not fully implemented corrective action in response to 8 of the 14 recommendations from our September 2005 audit report.

And the real kicker:

We remain concerned with RUS’ current direction of the Broadband program, particularly as they receive greater funding under the American Recovery and Reinvestment Act of 2008 (Recovery Act), including its provisions for transparency and accountability.

In my estimation, the essence of the broadband challenge isn't in some arcane internecine pissing match over how we're applying the definition of urban and rural. The problem is one of standards of service (where service exists) and providing service where it doesn't.

Are the Bigs Taking the Cash?

So Ryan Singel has an interesting perspective on recent speculation as to whether or not AT&T and Verizon's will apply for broadband stimulus cash.

What's really at stake here are definitions: what kind of service will the government define as 'broadband,' what counts as an 'open' network, and what areas are 'underserved' or 'unserved.'

I couldn't agree more.

Yes, defining and operationalizing these terms is precisely what is at stake in coming to the table (or not) for the Bigs. And as I've argued, they are precisely the matters that are unresolved in the present NTIA/RUS/FCC plan for investing the $7.2 billion of stimulus cash. What will happen? I'm still waiting to see.