Computers, Privacy & the Constitution

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Freedom of Thought Through Credit and Creativity

-- By WilliamCoombs - 23 Mar 2017

Social norms greatly influence individual behavior. Our “right to privacy” is largely influenced by the way society as a whole conceives that right. I argue that our right to privacy, our freedom of speech, and our freedom to listen, would all be enhanced if copyright laws were dramatically restructured. Lawrence Lessig describes how the zoning that allows many types of discrimination in real space is not a necessary component of cyberspace. Lawrence Lessig, Reading the Constitution in Cyberspace, 45 Emory L.J. 869 (1996). Both spaces “have constraints of law and social norms, and constraints of code (as in the constraints of technology).” Id. at 897. Because “intellectual property is a public good,” it has a collective action problem, but cyberspace has the capacity to create a “perfect technology of justice…that allows policymakers to select a social end, and then assure compliance by individuals to that end.” Id. at 899-900. Lessig describes how an owner of intellectual property could, through encryption, perfectly control who has access to its work. Id. at 898. Cyberspace has made the widespread proliferation of all kinds of works possible. While cyberspace could allow an owner of intellectual property to control who has access, it also offers the possibility of making access perfectly open. The concept of intellectual “property” is not inherent – it is not a necessary fact that someone who created something should have rights in it. And in the same way that cyberspace has made the translation of certain constitutional protections and ideals difficult, such as the freedom of speech and the freedom from unreasonable searches and seizures, I believe that cyberspace has rendered the existence of copyright completely obsolete. The framers intent needs to be translated. The Copyright Clause that gives Congress the authority to grant “Authors” exclusive rights in their “Writings” is mandated by it own preamble to do so for the purpose of promoting “the Progress of Science and useful Arts.” U.S. Const. art. I, 8, cl. 8. The existence of cyberspace arguably has resulted in a tool that promotes the progress of science and art far better than the incentive of a monopoly on intellectual property given to a creator by Congress can. It is possible that, given the existence of the Internet, the abolition of copyright would promote that progress. And if that is true, it is arguable that Congress should not be able to grant copyrights, because it no longer adheres to the clause’s preamble. But Congress will not stop granting copyright, and that is not my point. Nonetheless, the use of the Internet as a tool for creativity has shown that copyrights are not the only way to incentivize creativity. One extremely large incentive to creativity comes from social norms – when society values creativity, and when it rewards creators, then people will continue to create. One problem now is society’s need to monetize an achievement in order to consider it valuable. Because of this need for monetization, a grant of exclusive rights that gives control and the entitlement to receive payment for access is very appealing. But social norms also offer an incentive to create – people’s desire for external validation makes the recognition offered by a society that highly values creativity very appealing as well. “Secrecy, anonymity and autonomy – are the principal components of a mixture we call ‘privacy’,” and “without anonymity in reading there is no freedom of the mind.” Moglen, Privacy Under Attack. Promoting the progress of science and the useful art is a social end – maintaining freedom of the mind an even more essential one. I believe the two are connected in the way the need for monetization currently inhibits them both, and in how a mass cultural shift away from that need for monetization would further them both. The data collection by companies like Google, Facebook, and Amazon infringes on our anonymity in reading, and thus our freedom of the mind, because these companies play a large role in controlling what we read. A society that values creativity would necessarily value the freedom of the mind, of which anonymity in reading is a crucial part. Regulators use propaganda campaigns and social stigmas to induce proper behavior. Lessig, at 898. In this way, companies with vested interests in strong copyright protection have created stigmas around “pirating.” But a proponent of the freedom of the mind, and of creativity, can work to create the opposite mindset. If we did not grant intellectually property rights to creators, because they did not need them to create, then those creators would not need to encrypt their works. The creators would not need to condition access to their materials upon payment, or upon receiving the identity of the person desiring access. By giving access to all readers, anonymous or not, a creator could receive mass recognition and fame for their work. Perhaps they could translate this into monetary gain, or power. Cyberspace allows works to be preserved, copied, accessed, and added to, without destroying any individual copy. This means credit can be given for any marginal addition or change. So an author who wants to be recognized can be recognized despite any amount of anonymous readers, or anonymous creators that alter the author’s work. This may require the type of encrypted fingerprint Lessig describes, in order to preserve proof on an individual’s creation or contribution. But as he says, that would could be achieved within constitutional limits if the government could only gain access to the key that would decrypt the fingerprint with a warrant. The right to privacy may be enhanced by the desire for recognition. A reconceptualization of intellectual property rights could help start a cultural shift away from monetization of creation and towards valuing creativity in itself. This in turn might cause society to value the freedom of the mind, and consequently, anonymity.

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