Also see this article about renewing the Patriot Act.

Brian,

Thank you for your comments. I've incorporated your suggestions into my paper.

It seems that our disagreement (if we even have one) over the proper role of government may come down to semantics. Certainly, in some sense the government must "control" people. As you point out, crime prevention, environmental standards, and local community rules are good examples of desirable controls. However, based on my understanding of the Constitution and the founding fathers, federal government should function primarily as an instrument of the people, and not a paternalistic, over-controlling micro-manager. I believe that excessive IP laws and the downward spiral into the Orwellian abyss are two great examples of the government exceeding the bounds of its proper function. The interests of the individual are now superseded by the interests of lobbyists, special interests groups, corporations, and a government constantly seeking to acquire more power (control). Therefore, yes, I do think that "the balance has shifted too far away from public control.” Reducing the level of IP protection and minimizing the ability of the government and private entities to track individuals are fundamental to returning government to its proper place.

-- ScottMcKinney - 02 Dec 2009

Scott,

I added a comment box since you invited others to provide feedback. You are free to delete it if you like, just remove the COMMENT text with the percentage signs next to it at the bottom in the edit mode.

Your essay addresses some of the same things as mine, so I appreciated it. On that note, you might consider adding a hyperlink to the DMCA, since it is one of the revisions to IP law that impacts the expansive author rights model you criticize. You might also wish to note that it is my understanding that in the US, under federal law (and also in some states) anyone arrested can also have their DNA added to a database. See Washington Post article; NY Times Article (and links therein); but see this recent ruling.

I enjoyed your paper and in sum I think it makes some good points. I balk at part of the claim in the start of the conclusion: that "[t]he proper role of government is not to control the people, but to be controlled by the people." I tend to think it is both; the government both controls, through things like crime prevention and emission regulation, and is controlled (in theory) through elections, protests, and lobbying. However, this turns out to me to be a very minor disagreement because I read the thrust of your essay to recognize this duality and to mean (in the quoted sentence) just to emphasize that you believe the balance has shifted too far away from public control. In that sense, I do not disagree.

-- BrianS - 19 Nov 2009

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PRIVACY AND THE UNNECESSARY EXPANSION OF IP PROTECTION

GOVERNMENT, CORPORATIONS, AND THE EXPANSION OF IP PROTECTION

GOVERNMENT, CAPITALISM, AND THE CONTROL OF THE POPULATION

-- By ScottMcKinney - 16 Nov 2009

Not yet ready for review

INTRODUCTION

CAPITALISM, GOVERNMENT, AND IP LAWS

Unfortunately, at a time in which the U.S. Government could have promoted innovation, it instead favored corporate control of technological innovation through a series of miscues. Although copyright protection is automatically granted once a computer program's source code is placed in a fixed medium (the signing of the Berne Convention eliminated the need for formalities), there are still many benefits to registering a copyright. However, the copyright office does not require a computer program to register all of the source code. Therefore, software companies were able to copyright programs, register the programs, and not disclose the extent of the meaningful source code. For a long time, it was assumed that computer programs were unpatentable. Laws of nature, physical phenomena, and abstract ideas (including algorithms) are not patentable subject matter. However, after the Supreme Court's decision in Diamond v. Diehr, 450 U.S. 175 (1981), which upheld a patent on a process for vulcanizing rubber which utilized a computer program, the patent floodgates were opened. Although the Court was clear in Diamond v. Diehr that a patent on a computer program alone would not be upheld, the arrival of the U.S. Court of Appeals for the Federal Circuit in 1982 changed things. Over the next 27 years, the CAFC oversaw an explosion of patents that included granting broad protection for the pharmaceutical industry, patenting thousands upon thousands of computer programs, and allowing the infamous “business method” patents now at issue in Bilski.

Article I, Section 8 of the U.S. Constitution grants Congress the power to “promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” There is a glaring inconsistency between the constitutional grant of power and the way in which the patent system functions for computer software: software patentees are not required to divulge the source code to their programs. Granting a patent on computer software might actually promote science and the arts if the U.S. patent system required the programs' source code to be divulged. If source code were divulged in patents, then programmers could better learn from innovative code and learn how to improve code, just as they do in an anarchical production system. Basic UML-style diagrams are not sufficient to “promote the progress of science.” Instead, software patents act to stifle innovation and allow software companies to control software for inordinate amounts of time (twenty years is many lifetimes in the computer industry).

GOVERNMENT CONTROL OVER PRIVACY IN BRITAIN

The UK possesses no written constitution and instead operates under the dominion of parliamentary supremacy. There is nothing to check the power of Parliament, and as a result privacy in the UK has gone the way of the dodo. Parliament can overturn itself, but governments rarely take power away from themselves. Using “defending national security”, “deterring crime”, and “protecting societal harmony” as justifications, Britain has installed over 4.2 million CCTV surveillance cameras. George Orwell would be impressed. This figure averages out to one surveillance camera for ever fourteen people. For comparison, China has one camera for every 472,000 citizens. Recently, Britain added facial recognition software to it's surveillance system. To add to the mix, Britain is compiling the largest DNA database in the world—the government has DNA records on 7% of the population and counting. Police in Britain can take DNA samples from anyone arrested on suspicion of an offense. Furthermore, private CCTV and surveillance systems are pervasive in Britain, with the specter of selling the data trail to interested third parties looming large. Recently, it has been proposed that everyone in Britain be issued a unique carbon footprint number. Each citizen would be required to use this number when purchasing things that have a negative carbon impact, such as airline tickets, electricity, and fuel. Britain's close neighbor, the Netherlands has recently approved a “road tax” bill which would install GPS systems on every car, in order to track when and where a person drives so as to enable the government to tax people based on number of kilometers driven. Similarly, Britain has a centralized “camera grid,” which is able to track vehicle movements throughout the island.

Although “limiting carbon emissions,” “preventing crime,” and “fighting terrorism,” all seem like fine justifications, they are not sufficient reasons to diminish the right to anonymity and autonomy. Britain's CCTV systems have improved the efficiency of the courts in medium-sized towns like Oxford—a local magistrate estimated that between 95 to 99 percent of suspected criminals immediately plead guilty after being shown CCTV footage. However, the surveillance systems have not proven to deter crime. Crimes that occur in public are rarely planned, and those that plan to commit public crimes are quite aware of exactly where the cameras are located.

The U.S. must look to and learn from Britain. Britain's Orwellian surveillance network is about control, and control over the individual cannot be justified if the cost is the loss of anonymity and autonomy.

CONCLUSION

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