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April 26 was Intellectual Property Day. World Wide! It got right by you, right? That’s understandable, I suppose. It got past President Obama, too. Of course, he has the excuse of being really, really busy these days. And you’ve probably forgotten about WIPO, the World Intellectual Property Organization of the United Nations. Or maybe you never even heard of it. Well, now you know.
If you were a member of the Authors Guild, as I am, you’d have received an invitation to jot down a list celebrating “the creativity and innovation of the American people.” I scribbled out my list a couple of days ago. Barack Obama got around to jotting down his list today and it includes, among other things, Toni Morrison’s Song of Solomon, Marvin Gaye’s What’s Going On, Thomas Edison’s electric light bulb, and for innovative sports team, the Chicago Bulls — no surprise there.
The theme for Intellectual Property Day this year is Digital Creativity: Culture Reimagined. The Director General of WIPO, Francis Gurry, observed that the internet provides a great opportunity for creators to interact with their audiences. “Now, with the Internet, the audience has become potentially the whole world. That is an enormous creative opportunity. It’s an enormous cultural opportunity. And it’s an enormous economic opportunity,” That’s certainly true.
Unfortunately, it’s also true that digital media, especially the internet and most especially the World Wide Web, provide a great opportunity for theft of intellectual property.The movement to legitimize theft of intellectual property loves the phrase “Knowledge Wants to be Free!” That’s a great slogan if knowledge refers to such things as the French Language, the location of Los Angeles, the shape of a maple leaf, or the atomic composition of water, but it’s not so smart when it refers to a recently composed song or novel. Our slogan is Stamp Out Starving Writers, Buy Their Books!
Probably the most notorious example of theft of intellectual property is Google’s wholesale copying of copyrighted books. It does this for “the public good.” Which is admirable. But Google also gets revenue which it would not get if it didn’t display the books to get readers to the Google web site — and, of course, the authors of those books get no money at all from Google.
Some people — usually not authors — will point out that being accessible on Google makes the work more likely to sell, and raises the writer’s profile. That’s certainly possible. Writers and other artists sometimes do present their work, or some part of it, free to the public, but as the creator of those works the artist wants to be in charge of what is offered free and when. As Google turns a profit from making the books available online, the writer wants a slice of that, too.
In October 2015, the Second Circuit Court of Appeals found that Google’s use of the books without compensation was “fair,” because the search engine’s “primary intended beneficiary is the public.” To many of us, the primary intended beneficiary of whatever Google does is Google — that’s the way capitalism works. The public does benefit, but that’s secondary — Google isn’t incorporated to serve the public good.
Mary Rasenberger, executive director of the Authors Guild, has pointed out that “Authors are already among the most poorly paid workers in America; if tomorrow’s authors cannot make a living from their work, only the independently wealthy or the subsidized will be able to pursue a career in writing, and America’s intellectual and artistic soul will be impoverished.”
Yes, we’re grumpy about that.
Alas, there’s no right to privacy in the Constitution of the United States. The closest we come to that right is in the 4th Amendment which states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probably cause —” and so forth.
For the past few years, the administration has been trying to get US companies to install “back doors” in their encryption programs. That way federal agencies will be able to access our otherwise private information. And now, as you know, a federal judge has ordered Apple, Inc. to hack its encrypted i-phone so the FBI will get into the device used by one of the killers in the San Bernardino massacre. Apple says No. Doing that, says CEO Tim Cook, would ultimately compromise the privacy of all i-phone users.
That’s a brave stand for privacy. And, frankly, if we have to rely on global corporations to protect us from government snooping, we’re in a bad way.
In 1890 a couple of law partners, Samuel Warren and Louis Brandeis, wrote an article for the Harvard Law Review about privacy. In the years since then, it’s become one of the most famous articles ever printed in that review. In their article, the young lawyers found a right to privacy — or, as they wrote, “the right to be left alone” — in common law, and also found it implicitly in a variety of statutes. It was a good start, but that was over 100 years ago.
Thirty years later, the same Louis Brandeis, by then a Justice of the Supreme Court, argued that a right to privacy was implicit in the 4th Amendment. The case was Olmstead v. the United States, and the question was whether recordings of wiretapped private telephone conversations constituted impermissibly seized evidence and consequently should be excluded from the trial. The case was well chosen to favor the use of wiretaps, because the people being wiretapped were in an outrageously huge bootlegging business. By a five-to-four decision, the Court said wiretapping had not violated the 4th Amendment. So Brandeis lost. As Chief Justice William Howard Taft said, there had been no searching and nothing had been seized, the conversation had been merely overheard. By the way, that decision was not overturned until 1967, thirty-nine years later.
The article written by Brandeis and Warren in 1890 had been stimulated by the invention of the camera and the public display in newspapers of photographs of private people. And in the 1928 Olmstead case, the decision followed upon the use of telephone wiretaps. In each case the interpretation of the 4th Amendment came in response to a technological advance that law didn’t cover. Now, of course, technology has advanced terrifically with the invention of the marvelous digital phone and all that it can do.
Clearly, any conclusive decision in the Apple case will have to involve an interpretation of the 4th Amendment. The Apple case, like the Olmstead case of 1928, is well chosen to favor the authorities, namely the FBI, since the phone they want to get into was used by the perpetrators of the horrifying San Bernardino massacre. It’s a hard case. And there’s an old legal adage that say, “Hard cases make bad law”
If you’re interested, Critical Pages has an earlier post on Louis Brandeis.