PRIVACY AND THE UNNECESSARY EXPANSION OF IP PROTECTION

-- By ScottMcKinney - 16 Nov 2009

INTRODUCTION

How can we account for the current state of affairs, in which privacy (anonymity and autonomy) is being swept out from under a naïve public's feet, while intellectual property laws are being used to strengthen monopolies over proprietary software and technology? Furthermore, how can we improve our situation in the short term, living in a world of intellectual monopoly and Orwellian surveillance? I attempt to answer these questions below.

GOVERNMENT, CORPORATIONS, AND THE EXPANSION OF IP PROTECTION

As Eben discussed in class, intellectual monopoly does not necessarily promote innovation (for an economic professor's fascinating historical perspective of the subject, see Against Intellectual Monopoly—which, unsurprisingly, is available for free download). Unfortunately, in the last 50 years, instead of preserving the status quo of intellectual property protection, the government has extended protection wholesale. Disney led a crusade to retroactively increase copyright protection, and the U.S. bowed to the mouse. 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. Yet, the copyright office does not require a computer program to register all of the source code, allowing software companies to hide meaningful code. For a long time, it was assumed that computer programs were unpatentable. However, misinterpretation of the Supreme Court's decision in Diamond v. Diehr, 450 U.S. 175 (1981), by the newly-created U.S. Court of Appeals for the Federal Circuit opened the patent floodgates. Since 1982, 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. Computer patents are not required to disclose their source code, which would allow innovative programmers to improve upon these discoveries—just as they do in an anarchical production environment.

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.” The current state of IP protection in America does not promote science or the arts–instead it stifles them and simultaneously increases the ability of corporations to maintain monopolistic control over the marketplace. Copyright and patent laws should be revised and enforced towards fulfilling their constitutional purpose of "promoting science"—not "promoting corporate dominance."

• All very well to say. But the Supreme Court said in Eldred which you don't mention, that the language of Article I, Section 8 does not establish substantive limitation on Congressional power, and the owners have the money with which to buy, intimidate or persuade the Congress. So how is this change you are recommending going to come about?

GOVERNMENT CONTROL OVER PRIVACY IN BRITAIN

Just as corporations within a capitalist system naturally grow more powerful and garner more control over the marketplace, governments naturally trend towards procuring greater control over society. Thankfully, America has the benefit of a written constitution, which in theory limits the ability of the government to take complete control over people's lives. Despite the existence of the Patriot Act, the constitution and the American system of checks and balances has acted to remind the U.S. Government that it was created by the people, not to control them. As technology has progressed over the past 30 years, privacy in America has regressed. However, things could be worse: you could live in Britain.

• "Just as" is not an argument, but it's the only analytic connection between the halves of this essay.

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 its 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 merely on suspicion of an offense (in the USA, a recent ruling requires a conviction before DNA may be taken). 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. As discussed in class, Britain has a centralized “camera grid,” which is able to track vehicle movements throughout the island. Most recently, Britain is considering implementing a home database, which would track family households and allow safety inspectors to monitor and gain access to homes to ensure that parents are protecting their children from accidents.

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. Interestingly, the surveillance systems have not proven to deter crime.

• The implication is that England and the US were the same place at some point, and they have diverged. In fact, this is a difference perceptible in one form or another since the beginning of English-speaking settlement in North America.

CONCLUSION

The proper role of government is not to control the people, but to be controlled by the people. However, it is government's job to prevent unfair, insidious monopolies. It is up to us to combat the loss of our privacy, by educating the naïve public about the dangers and consequences of the loss of privacy, by influencing the government to serve its proper purpose—providing a check to monopolistic corporations, not assisting them—and by providing the public with favorable private technological alternatives. Furthermore, we must work to eliminate legal devices such as unnecessary and uninformative software patents and return the IP system to its proper place. The more personal information that government and corporate entities stockpile, the less control individuals have over their daily decisions. If we do not act soon, the U.S. will continue down the road towards Britain’s Orwellian state of existence.

• The primary problem here is structure: two very different inquiries that touch tangentially combined in a narrow space.

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For related reading, see Brian's paper covering the DMCA.

Also see this article about renewing the Patriot Act.

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, ScottMcKinney

Scott,

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

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,

It does sound like we agree. I am glad if my comments were helpful.

-- BrianS - 03 Dec 2009