Материал: disser_arhipov

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At the verge of the XXth and XXIst century L. Manovich contrasted the “new” media with the “old” ones in the line of “analogue-digital” differentiation, highlighting five basic principles of “new media”.180 As V.V. Savchuk believes, “after a short, but rich in events and discoveries time, many of the distinctive features of the new media become disabled, or become secondary and insignificant”.181 However, this assessment depends on the subject of the study. While it is likely to be true for innovative mediaphilosophy, it is not true for conservative jurisprudence. Each of the features highlighted by L. Manovich remains relevant for law, which we will discuss separately below, and in the practice of law enforcement is actualized only when it becomes significant in the sense of convertible “socio-currency value” of generalized symbolic media (as will be discussed in more detail in Chapters 2 and 3 of this study). In the current Russian context, the systemic legal significance of all the features, perhaps, emerged together with the Digital Economy of the Russian Federation Program.182 What are those principles formulated by L. Manovich?

First, new media objects,183 whether they are originally created on a computer or digitized afterwards, consist of numeric code and are based on numeric representations. It follows that new media objects can be described mathematically and that they can be manipulated using algorithms. «In short, – as L. Manovich emphasizes, – media becomes programmable».184 Broadly speaking, this has a really diverse impact on the right. For example, new media objects, by definition, will be not only sui generis objects of legal regulation (works of art for intellectual property rights, objects of legal communication for contract law, etc.), but also always information and, potentially, the result of intellectual activity. The latter is relevant not only for the mentioned intellectual property law, but also

180See: Manovich L. The Language of New Media. – London: MIT Press: Cambridge, Massachusets, 2001. – 202 p.

181Savchuk V.V. Mediaphilosophy – Rush of the Reality. P. 50.

182The adoption of this Program is a direct sign of the “social and currency value” of a number of phenomena, as the institute of political power adopted it. Again, this approach is described in more detail later in this paper. Here, however, we will focus on the socio-cultural context.

183We emphasize that in this context, we view “media” broadly, not in terms of aesthetic phenomena (not only in this possible sense), but also in terms of media philosophy.

184Manovich L. The Language of New Media. P. 27.

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for other areas. The possibility of manipulation by means of algorithms seriously influences the evaluation of new media from the point of view of evidentiary law.185

Second, new media objects are “modular” or, in other words, “fractal”.

«Media elements, be it images, sounds, shapes, or behaviors, are represented as collections of discrete samples (pixels, polygons, voxels, characters, scripts). These elements are assembled into larger-scale objects but they continue to maintain their separate identity. The objects themselves can be combined into even larger objects – again, without losing their independence… In short, a new media object consists from independent parts which, in their turn, consist from smaller independent parts, and so on, up to the level of smallest “atoms” such as pixels, 3D points or characters».186

As L. Manovich notes, the Internet also has a fully modular structure – it is not about sites (to present the Internet as a set of sites – a simplified model, which is supported mainly by browser manufacturers), but about a variety of information objects.187 The legal meaning of this circumstance overlaps with the observation related to the previous principle. Moreover, it is also obvious that, if one does not take into account the atomic level, which cannot usually be assessed in this sense, each “module” or “fractal” may be an independent subject of legal regulation, and such regulation by means of “old” law may conflict with the regulation of an entire large object consisting of such modules. Analogue objects are rarely so fractal in this sense. In other words, the complexity of a very philosophical, at first glance, question that can be formulated based on the example of civil law as a question of when the ownership of materials terminates and the ownership of an object made of such materials arises.

Third, it is automatization. L. Manovich emphasizes that the media numeric coding and modular structure of the object should be able to automate many operations related to

185At least, in the Russian realities, despite the fact that partially such approach can be outdated (at use of the strengthened qualified electronic signature), people trust more to autograph signatures on the paper rather than to electronic. This follows, among other things, from the text of the Federal Law of 06.04.2011 No. 63-FZ “On Electronic Signature”, in Article 6 of which it is a paper document signed by a handwritten signature that is considered a kind of “standard”.

186Manovich L. The Language of New Media. PP. 30-31.

187Ibid. P. 31.

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the creation and manipulation of the object, as well as access to it. Human participation, at least in part, can be eliminated from these processes.188 It is easy to see that this fact has a significant impact on the legal assessment – both now and in the future. An overview of all possible legal problems related to automated actions goes far beyond the scope of this study and deserves several independent monographic studies. There are obvious implications of the problem in the field of artificial intelligence and robotics.189 Naturally, there are problems in identifying the “author” of a work, whether original or redesigned, if it was created using automation tools.190 Automated processing of personal data (which, thus, became possible after such data took the form of a digital object of new media reality) is specifically regulated.191 The number of examples of potential and actual legal conflicts related to this principle is difficult to calculate.

Fourth, the principle of variability. As in the case of the previous principle, due to the numeric representation and modular structure, «…a new media object is not something fixed once and for all but can exist in different, potentially infinite, versions».192 Looking at this principle from a legal perspective, it is clear that the number of potential legal implementations of this principle is also high. Previously, the static and fixed subject of legal regulation in the conditions of the medial turn is changing, and may change, including those properties that are significant for the legal qualification. As in the previous

188Ibid. P. 32.

189See e.g.: Arkhipov V.V., Naumov V.B. Artificial Intelligence and Autonomous Devices in Legal Context: on Development of the First Russian Law on Robotics // Proceedings of SPIIRAN. 2017. Issue. 6 (55). P. 46–62; Arkhipov V.V., Naumov V.B. On Certain Issues of Theoretic Grounds for Development of Robotics Legislation: the Aspects of Will and Legal Personality // Zakon. 2017. No. 5. P. 157–170; Arkhipov V.V., Naumov, V.B. Informational and Legal Aspects of Designing Robotics Legislation // Information Law. 2017. No. 1. P. 19–27; Arkhipov V.V., Naumov V.B., Pchelintsev G.A., Chirko, Ya.A. Open Concept of Regulation of the Internet of Things // Information Law. Moscow, 2016. No. 2. P. 18–25; Gadjiev G.A., Voinikanis E.A. Could be a Robot a Subject of Law? (in Search of the Legal Forms for a Digital Economy) // Law. Journal of the Higher School of Economics. 2018. No. 4. P. 24–48.

190See e.g.: Gurko A. Artificial Intelligence and Copyright: a Look into the Future // Intellectual Property. Copyright and Neighboring Rights. 2017. No. 12. P. 7–18.

191Special rules, for example, are provided in the Article 16 of the Federal Law of 27.07.2006 № 152-FZ “On Personal Data” (ed. of 31.12.2017), “The rights of subjects of personal data when making decisions on the basis of exclusively automated processing of their personal data”. Automated processing of personal data is mentioned in the sub-clauses 15, 67, 68, 71 of the Preamble, and Articles 2, 4, 15, etc. of the General Data Protection Regulation (GDPR) – EU Regulation 2016/79.

192Manovich L. The Language of New Media. PP. 36.

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case, there are many examples. As one obvious example, we can cite the next one, which is quite simple and even a little outdated and from the point of view of law: the material posted on a hyperlink to a website may change unpredictably. Previously there was prohibited (or allowed) information posted, but now – the information of the contrary kind. This raises a number of issues related to the legal liability of participants in legal relations, the efficiency and expediency of legal procedures aimed at blocking or unblocking the resource, etc. The author gives a detailed example of “hypermedia”, which is an information product consisting of “scraps” of information, combined by means of hyperlinks. It is clear that the legal dimension of such a product as a subject of regulation will be no less confusing than its technical structure.

Finally, fifth, the transcoding principle is formulated. L. Manovich considers it to be the most serious in terms of its effect on culture. In brief, it boils down to the fact that old media objects are “translated” from human precomputer culture artifacts into digital reality artifacts. This is best expressed by the scientist himself:

«The structure of a computer image is a case in point. On the level of representation, it belongs to the side of human culture, automatically entering in dialog with other images, other cultural “semes” and “mythemes.” But on another level, it is a computer file which consist from a machine-readable header, followed by numbers representing RGB values of its pixels. On this level it enters into a dialog with other computer files. The dimensions of this dialog are not the image’s content, meanings or formal qualities, but file size, file type, type of compression used, file format and so on. In short, these dimensions are that of computer’s own cosmogony rather than of human culture… In new media lingo, to “transcode” something is to translate it into another format. The computerization of culture gradually accomplishes similar transcoding in relation to all cultural categories and concepts. That is, cultural categories and concepts are substituted, on the level of meaning and/or the language, by new ones which derive from computer’s ontology, epistemology and pragmatics. New media thus acts as a forerunner of this more general process of cultural reconceptualization».193

193 Ibid. P. 46-47.

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But the cultural re-conceptualization is the re-conceptualization of the social reality, and the re-conceptualization of the social reality is, at the same time, an essential change in the numerous subjects of legal relations.

We emphasize that the main purpose of this paragraph is to systematize the basic prerequisites for digital turning. The number of new technologies and practices is growing. For example, there is no less methodological potential for this study to have virtual and, in particular, augmented reality technologies, which will be discussed in Chapter 2 of this study in relation to the interpretation of the legal text containing the legal provision on the prohibition of “vehicles” in the park from the discussion between H. Hart and L. Fuller.

In general, the above features in the interpretation of L. Manovich describe the constituent medial turn, which we have designated as the “digital turn”. The digital turn determines the conditions in which the empirical basis for conceptualizing the problem of the semantic limits of law is formed. However, the content of this problem, although it depends on these conditions, is determined by another component of the medial turn, which is focused not on objects, but on social practices. We are talking about the game turn, and the fact that it is computer games that we now consider, including as new media, are a bright and representative material for our problem. It should be noted, however, that other social practices set by the digital turn (including the practice of communication in social networks as a new type of new media, which, incidentally, L. Manovich could not know about at the time of writing his book – the first modern social networks appear only in the first decade of the XXIst century194), also push us to the problem of the semantic limits of law, but, unlike games, such practices were initially focused on real, even if not always serious, communication, and are therefore less representative and visible as the main empirical material.

194For example, the first version of Facebook was launched in 2004. See: Facebook. Our History [Electronic resource]

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