Law in the Internet Society

Anonymity as Counterbalance for Intrusions of Intellectual Property

-- By AaronChan - 05 Dec 2011

Ownership of ideas has little currency in the Information Society because it is always premised on the power of exclusion and the nature of the Net is the dissemination of information and tools of empowerment. The dangers of squelching dissemination of knowledge are multiplied as information dissemination has also increased online. While the offensive use of intellectual property rights has always been an issue, its potential intrusion into defamation censorship only highlights the necessity for online anonymity.

Neither the title nor the introductory paragraph is clear enough for the reader who hasn't already read the essay to know what you're talking about. If you boil it down, this language means "People and businesses increasingly seek enforcement of online copyrights to squelch criticism and otherwise to exercise illegitimate power over speech. Preserving anonymity online is therefore more important, so they won't know who to sue." Put that way it is easy for the reader to grasp your idea. She will also perceive more rapidly what is wrong with it.

Medical Justice

Medical Justice, a physician organization devoted to blocking malpractice lawsuits for its members, has used a copyright assignment contracts to attempt control over patient reviews. The organization sells contracts to doctors to give to their patients before treatment. The contracts assign any and all copyrights on anything written about the doctor by the patient to the doctor. When a doctor encounters a negative review, he can seek removal of that information by claiming ownership of the copyright.

Sounds good, but it isn't. It's actually too clever by half, and likely to cause unpleasant consequences, for doctors of all people.

Communications Decency Act and the Digital Millennium Copyright Act

The CDA protects “interactive computer service” providers from defamation suits by user-generated postings. It does not however, have a notice-takedown provision like the DMCA. Those claiming defamation, unlike those alleging copyright infringement, do not have a simple legal mechanism to remove that information. Medical Justice seeks to leverage intellectual property protection to circumvent the 230 of the CDA by having its members’ patient sign copyright assignment agreements to the doctors. When faced with a negative review, the doctor invokes his copyright and uses a DMCA takedown to remove material from the site. Most online service providers are expedient and thorough with following DMCA takedowns to maintain their safe harbor for secondary infringement. Faced with losing that safe harbor, websites may be more willing to remove reviews on copyright grounds than on potential defamation, for which it would be protected.

Public Knowledge has already explained the various legal problems with Medical Justice’s technique, including whether the reviews are copyrightable, whether the patient can assign future copyrights, whether the contract is unconscionable. I will not rehash those arguments here.

Particularly given that the PK paper is actually of rather poor quality and misses most of the important points.

Instead, my focus is on the collision of the right of publicity with the need for anonymity on the Net.

Which is not obviously related, phrased again in this obscure way. Put simply, as I did above, it would be apparent why that's a problematic focus.

Necessity of Anonymity

Anonymity is important because it allows criticism without fear of retribution. In cases of totalitarian regimes, we tend to applaud the need for anonymity on human rights grounds. Yet, the very qualities of anonymous speech that make it ideal for destabilizing authority are also the qualities that make it so dangerous from a defamation perspective. The intersection of anonymity and copyright is at the very nature of control. Allowing the spread of intellectual property rights over information, as Medical Justice wants, would squelch critical speech. But even if Medical Justice could suppress bad patient reviews with DMCA takedowns, it could only do so when it could demonstrate that it had a valid copyright. If a review is identified by author, the doctor would show a copyright assignment contract and be able to claim a copyright. If the negative review is anonymous, the doctor would then need to claim that it had a copyright over everything said about him even though he could not point to the contract that gave him the copyright ownership. Since the latter is certainly a more difficult position for the doctor to defend, anonymity may be the solution if the patient assignment is valid.

So the first serious drawback only now becomes visible: your whole exercise is based on the idea that otherwise this particularly stupid "legal" tactic might succeed. As it won't, this is therefore a pointless exercise of the sort called "academic" by those who have no idea what academic exercise really is. Moreover, it now becomes apparent that your point about anonymity, as I showed in my simplification at the outset, is that it is good for shielding people from the legal consequences of supposedly harmful actions. This is the primary argument against anonymity, and far from disabling it, you are first tuning up the buzzsaw and then walking in.

Anonymity allows critical attacks on those who control all the power. If the law insists on granting a monopoly over information through copyrights, patents, and trademark, then the maintenance of anonymity is a necessary counterbalance. The need for accountability, a traditional argument against anonymity, can be repositioned as a desire for exposure. Those in control need a target to come out of hiding when wielding the legal system against the dissenters.

What does this mean? That when parties say anonymity shields lawbreakers they might mean only people they don't like whom they can characterize as lawbreakers? Be it so. Arguing that we need anonymity to shield people whom a legal system inequitably characterizes as lawbreakers is still an outstandingly weak argument.

Anonymity's Societal Value

Eben has pointed out the existential fear of encountering one’s Net doppelganger, a composite of all the accessible data. The annihilation of the self in such an encounter is the reason why anonymity is important, even in a non-totalitarian regime where there is less threat of physical violence. But anonymity is important for a well-functioning knowledge society as well. The bad reviews serve an important function in taming poor businesses. There are many bad reviews with no helpful bases, but the aggregation of all reviews can counter the unhelpful outlier reviews. Because the Net has democratized criticism, among almost every other human activity, one bad review on Yelp does not have the force of a condemnation from an ink and paper publication.

Anonymity comes at a cost as well. The message loses much of its efficacy when it comes from a position of no authority. Speakers have an incentive to speak identified to establish reputation and authority. Therefore, the answer to anonymous negative press would be more press. Instead of prohibiting bad reviews, the Medical Justice doctors may try to encourage patients to relate positive experiences online. Instead of wielding the blunt weapon of censorship, doctors could reach out to those identifiable patients with bad experiences and seek to rectify the injury.

As leaps in social networking have pushed away from anonymity, the middle ground of pseudonymity may be the best compromise. It can allow a degree of protection between the online persona and the actual individual while still allowing that persona to develop authority and reputation. Although it is unclear how a pseudonymous review would fare in a copyright assignment case. The evolution of the Net cannot foreclose the use of pseudonyms or the power to speak anonymously if there is to be a balance of opinion against those with the property rights.

This analysis is confused, or else it is confusing. I can see the meaning of each sentence, but I can't see what the paragraphs themselves are communicating, or how the aargument fits together. Like the preceding section, whose argument is coherent but untenable, the problem here is editorial, at the level of the outline. Let me restate a couple of basic compositional principles here that have general application:

  1. You can write a book of 100,000 words without an outline, but not an essay of 1,000 words. In order to be disciplined as the setting requires, you need to work from an outline that details each step.
  2. The editing of the outline is more important than the editing of the text. Between outlining and writing comes the part of the process in which you test each proposition on the outline, and consider carefully the meaning of each white space between items. What are the strongest relevant objections that can be made to each point comprising your outline? How do you plan to meet them, and where in the outline itself do those responses to criticisms show up? How does each white space get reflected in the transitional sentences of the finished essay? How do the section transitions differ from the paragraph transitions, and what ensures smooth flow overall? How do the Introduction and Conclusion differ, that is, how does the initial statement of the essay's central idea lead into the argument, and how does the argument's development allow you to lead the reader past the idea conveyed by the Introduction?

This latter process is the one from which this essay benefits on revision. It will change substantially, of course, because outline editing shifts the bones beneath the skin,


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r4 - 04 Sep 2012 - 22:02:21 - IanSullivan
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