Friday, November 25, 2005

Misleading Metaphors

I am not sure that it required the writings of George Lakoff to reveal the fact that we cannot think about something new---some new concept or phenomenon---without first analogizing it to something more familiar that we think we know how to think about. I suspect, however, that we do owe Lakoff a great deal of thanks for making clear to us how those analogies are usually presented to us as unrecognized metaphors and how those metaphors control what we think---control what we can think---since they are probably as close as we can come to the unintelligible underlying buzzing, booming confusion of reality.

Electronic---that is, non-human---computers have, of course, been around for a while, but the nature of their inner workings and of the programs that they implement are matters that most lawyers---members of my profession---are as little likely to have actually experienced as, say, the composing of a sonata for piccolo and flugelhorn.

Thus, when lawyers are confronted with a problem involving computers and computer programs they have evidenced a strong tendency to discuss---and, presumably, think about---them in terms of wildly inappropriate metaphors.

The paradigmatic example of a lawyer---and, in fact, a judge---thus misconceiving the very nature of computers and computer programs is, I submit, the holding of Judge Gwin in the case of Junger---that's me---v. Daley---who was the United States Secretary of Commerce---that ``source code,'' the instructions written by a human being describing the actions to be performed by a computer, is not expression that is protected the First Amendment to the United States Constitution because it is ``a device, like embedded circuitry in a telephone''---which is the equivalent of claiming that a recipe is an entree like duck Montmorency and that therefore a cookbook is not entitled to First Amendment protection.


Post a Comment

<< Home