Legal Issues

by Mike Masnick


Filed Under:
copyright, privacy



Is Copyright Law Compatible With Privacy Rights?

from the perhaps-not dept

We've discussed in the past the inherent conflict between the First Amendment's right to speech free from government interference and copyright law -- and there are entire books on the subject that are worth reading, like No Law and Copyright's Paradox. But there are other policy questions around copyright as well, and Boing Boing points us to an important one about how modern copyright law seems to inherently be at odds with any rights to privacy, thanks to copyright maximalists who are constantly pushing for every online action to be monitored in some manner or another:
It is increasingly apparent that modern copyright law is utterly and completely incompatible with the right to privacy.... What has changed? Before home computers, compact discs and Internet file sharing, it was conceivable for copyright laws to be enforced in a manner that did not bring the state to any-one's doorstep. If there was an illegal copy of a book in a bookshop, one could report it to the authorities. If someone brought a video camera into a theatre or a concert, they could be readily seen.

Given today's technological realities, this is no longer the case.... the problem lies in the fact that current copyright laws are completely unenforceable unless the government or industry groups start to read every e-mail and analyze every form of online communication done by citizens.
It's worth thinking about. It's also why the positions held by the various "Pirate Parties" around the globe aren't necessarily about encouraging people to get free stuff, but about the importance of protecting free speech rights and privacy rights, in a world where the industry is increasingly using copyright laws to chip away at both.

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  • identicon
    Richard, 14 Sep 2009 @ 7:49am

    Privacy vs enforcement

    Actually copyright law came into conflict with privacy the moment the domestic tape recorder was first marketed. It doesn't require the internet.

    If you want to enforce copyright law you need either

    1 A police state
    or
    2 the crippling of all copying technology through DRM

    SO the starting point of the debate should be "given that copyright is actually unenforceable what is the way forward"

    The conclusion from that is that any funding of content from the public will in future be in some sense voluntary.

    This means that content creators must work at giving their fans a positive experience and reward them for their loyalty.

    Pretty much the techdirt agenda really...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Sep 2009 @ 3:21pm

      Re: Privacy vs enforcement

      or
      2 the crippling of all copying technology through DRM


      Which again requires a police state for prevention of circumvention.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2009 @ 8:24am

    So a government-protected intangible right is at odds with another government-protected, intangible right?

    This ethereal right to privacy will not be enforceable for much longer. The technology to see under your clothes, see through walls, hear you from miles away and know exactly where you are at all times -- already exist in various levels of sophistication.

    What about when automation takes over the labor force? Will there be new human affirmative action laws or will we, in true TechDirt fashion, commend the companies who go fully automated as the steadfast pioneers they are and denounce the now out of work laborers as dinosaurs heading towards a quick extinction?

    reply to this | link to this | view in chronology ]

    • icon
      :Lobo Santo (profile), 14 Sep 2009 @ 8:49am

      Re:

      First: Hello, and welcome to the internet!

      Second: "Rights" are what we agree upon, a concept. They've always been ephemeral. Arguing that they are, indeed, concepts is like arguing that water is wet. What was your point?

      Lastly: Automation tends to create more jobs than it replaces.

      For example, should we still be paying people to separate cotton seed from cotton fiber? (That'll show that damn cotton gin!)

      How about paying a scribe to copy or print something? (Put those stupid inkjet printers out of business!)

      Your thinking is backwards; or rather, not in accordance with reality. Please, take your time, apply some critical thinking skills, and try again.

      reply to this | link to this | view in chronology ]

    • identicon
      Urza9814, 14 Sep 2009 @ 8:51am

      Re:

      "What about when automation takes over the labor force? Will there be new human affirmative action laws or will we, in true TechDirt fashion, commend the companies who go fully automated as the steadfast pioneers they are and denounce the now out of work laborers as dinosaurs heading towards a quick extinction?"

      Neither - we'll simply become socialist.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Sep 2009 @ 8:53am

      Re:

      Ahh...yes, the slippery slope to oblivion...or is that armageddon...it's all the same now isn't it.

      Adapt or die...

      If automation takes of the labor force, think of all the time you'll have to plan to subvert the automation...blow it up, disable it, etc.

      Come on now, have some imagination! And beware the pretty-colored pills ;)

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Howard, Cowering, 14 Sep 2009 @ 8:58am

      Re: Reply #2 - AC

      What about when automation takes over the labor force?

      You'd really prefer for humans to continue to sort through garbage for recyclables, to continue to process sewage, to dig ditches in the sweltering summer sun, and so on?

      Obviously, you either don't sweat for your income, or have never worked a day in your life. The dinosaurs will be those who adamantly cling to the old way of doing things, just as today. The visionaries will be the ones who look for new opportunities and open a robot maintenance service, or who offer a new way to invest the expanded leisure time available to everyone, or any of the millions of NEW things that have yet to be conceived.

      And, just so you don't have to actually go look it up: The Constitution and its amendments took effect before, and have primacy over, the legislation proffering copyright. We just haven't yet seen a definitive suit brought before the Supreme Court, so that copyright's infringement on several of the Constitutional guarantees are quashed.

      reply to this | link to this | view in chronology ]

    • icon
      Alan Gerow (profile), 14 Sep 2009 @ 10:16am

      Re:

      But these aren't intangible rights we're speaking of. The People only have the rights to privacy because the Bill of Rights does not grant the federal government power to spy on its citizens.

      And what would the second intangible right be? Copyright? That's not a right, that's a legal term.

      "This ethereal right to privacy will not be enforceable for much longer."

      It is entirely enforceable, because the rights mentioned (and not mentioned) in the Bill of Rights are applicable only to the federal government. So, it is entirely possible through transparency & a proper system of checks and balances (which is so far out of balance right now) to enforce the privacy of the People against the federal government. The People can always forcibly reclaim their rights ... but as the right to bear arms has been chipped away, and the fact that the US is not supposed to have a standing army and now we have in addition to several armed forces, a militarized police force in every major city, that level of checks and balances has been unbalanced, too. So, it is enforceable, but it's going to take the People to wake up and enforce it themselves.

      And in your completely unrelated sidetrack rant about automation: I would gladly welcome a world of Roombas and factory automation ... I could use some more down-time. If a robot could take over the menial tasks of my job, so I could focus on higher-level system planning and structuring, I would gladly let it be the code monkey. In fact, half of what I do is write code to automate and do things for me ... and yet I find myself with less and less time, because freeing myself of the simple tasks, means I take on more challenging tasks.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Sep 2009 @ 5:48pm

        Re: Re:

        The US isn't supposed to have a standing army? What are you smoking? Citation on that, please, because that is so far beyond ludicrous that the rest of your statements start to lack merit. The US is not a militia state. We don't call up our armed forces when we need them to assemble. They are already assembled. The Reserves are our on-call guys.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Sep 2009 @ 3:26pm

      Re:

      So a government-protected intangible right is at odds with another government-protected, intangible right?

      I don't think you'll find "copyright" in the US Constitution's Bill of Rights. Like "right of way", just having "right" in its name doesn't make it human right.

      reply to this | link to this | view in chronology ]

  • icon
    Steve R. (profile), 14 Sep 2009 @ 8:29am

    Our Legal System at Risk

    To follow-up on Richard's point, those advocating a "strong" copyright assert that they have a right to invade your "territory" at their will in order to enforce their so-called rights. They even go so far as to demand that third parties, such as Universities "monitor" internet traffic to protect their so-called property. Clearly, if allowed to continue, this will make a mockery of privacy and our legal system, especially due process.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2009 @ 8:46am

    in Spain

    The privacy in communication is considered a fundamental constitutional right. Thats why the RIAA and family equivalents have lose all the trial here.

    reply to this | link to this | view in chronology ]

  • identicon
    Benefacio, 14 Sep 2009 @ 5:00pm

    I call Strawmanikins

    'the problem lies in the fact that current copyright laws are completely unenforceable unless the government or industry groups start to read every e-mail and analyze every form of online communication done by citizens.'

    Isn't this a straw man since ALL laws a) require an invasion of privacy to some degree and b) are unenforceable without draconian measures?

    I also think it is fear-mongering hyperbole and am surprised Mike gives it any credit at all.

    reply to this | link to this | view in chronology ]

    • identicon
      Exhibitionists Unite!, 14 Sep 2009 @ 5:36pm

      Re: I call Strawmanikins

      You must enjoy the thought of being monitored all the time; phone, email, browsing, driving, at work, at play, in the store, in the shower, in the bedroom ...

      reply to this | link to this | view in chronology ]

  • identicon
    Benefacio, 14 Sep 2009 @ 6:23pm

    Re: I call Strawmanikins

    'You must enjoy the thought of being monitored all the time; phone, email, browsing, driving, at work, at play, in the store, in the shower, in the bedroom ...'

    You are trying to be a side-show magician with a poor attempt to misdirect attention away from the issue at hand. Tell us, rather, what it would take to actually prevent you or anyone else from breaking any particular law.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2009 @ 6:24pm

    "Second: "Rights" are what we agree upon, a concept. They've always been ephemeral. Arguing that they are, indeed, concepts is like arguing that water is wet. What was your point?"
    ---------------

    While I agree with you, a lot of people don't. Alan for instance, a few posts down. And my point was regarding the common freemunist tactic of using the word "intangible" as a pejorative to rationalize industrial-size levels of piracy. The funny thing about that is, lots of things are intangible, including the right to privacy. And just like copyright, there will be increasingly large conflicts between our privacy and emerging technologies.

    "Lastly: Automation tends to create more jobs than it replaces."
    ----------------

    We'll see. Printing scribes in a largely illiterate world and a broad swathe of the modern labor force are two vastly different things.

    "You'd really prefer for humans to continue to sort through garbage for recyclables, to continue to process sewage, to dig ditches in the sweltering summer sun, and so on?"
    ----------------

    Impressive straw man. Trying to indirectly paint me as a whip cracking elitist is a very elegant technique -- but you're a fool if you think automation will only mercifully disrupt the livelihoods of the people who process trash and feces. It will disrupt any industry where the cost of buying and servicing machines is less than the cost of hiring and paying for humans. Time will tell.


    "And, just so you don't have to actually go look it up: The Constitution and its amendments took effect before, and have primacy over, the legislation proffering copyright."
    -----------------

    LOL

    The copyright clause predates the Bill of Rights by YEARS! What big fake scholarly balls you must have to try and lecture someone on a subject you obviously know nothing about! I suggest you take your own hilarious advice and "look it up".

    "And what would the second intangible right be? Copyright? That's not a right, that's a legal term."
    -------------

    I guess I read the wrong Constitution! From what I remember it's a legal right of exclusion. If you want to wax philosophical about natural VS legal rights I suggest you buy a black turtleneck sweater then begin work on a poem that better elucidates your feelings on that vitally important subject...

    "It is entirely enforceable, because the rights mentioned (and not mentioned) in the Bill of Rights are applicable only to the federal government. So, it is entirely possible through transparency & a proper system of checks and balances (which is so far out of balance right now) to enforce the privacy of the People against the federal government."
    --------------

    Your second parenthetical adds little credence to your point. And you mention nothing of citizens spying on citizens which is only going to get easier as well.

    "I don't think you'll find "copyright" in the US Constitution's Bill of Rights. Like "right of way", just having "right" in its name doesn't make it human right."
    --------------

    Who said it did?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Sep 2009 @ 11:47am

    The thing you have to realize talking about copywrite violating privacy rights, is that privacy rights (with the exeption of illigal search and seizure) are not in the constitution the way we think it is, while copywrite is.
    "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." Article 1 section 8 clause 8.

    reply to this | link to this | view in chronology ]

  • identicon
    LegalTuber, 11 Oct 2009 @ 9:40pm

    Rewritten

    Obviously these laws have to be completely rewritten. Most of the old laws are barely enforceable at this point.

    reply to this | link to this | view in chronology ]


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