In their twenty-eight page piece, Brandeis and Warren chastised the journalists o f their day, particularly photojournalists, for prying into people’s private lives in search oqawdry and alluring “news,” and then made a cogent plea for the law to recognize a right to privacy and to impose liability in tort for these and other types of invasions of privacy. They got what they wanted–and more. (Bratman 624)

Much of their argument focused on limiting the public dissemination of private details of a person’s life, a goal that many find to conflict with First Amendment protections of speech and the press. But Warren and Brandeis saw the right to privacy as articulating an existing principle that had already been applied in many other contexts without constitutional problems: protections of one’s home, prohibitions of the publication of one’s private papers, and prohibitions against slander and libel.

Warren and Brandeis began their article by discussing the well-settled protections afforded by the common law to both people and property. The argued that the law had responded to “social, political, and economic changes” by expanding what it protected, such that the law now protected not just against battery, but the threat of battery (assault), as well as assaults on reputation (slander and libel) and even intangible “products of the mind,” like copyright and goodwill (Bratman 630).

The starting point of their critique of existing protections is the press:

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and the vicious, but has become a trade. … To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. (Warren and Brandeis 196)

Warren and Brandeis proceed to reason that privacy deserves protection through analogy to existing law. Thus, the rights to “intellectual and artistic property” were “instances and applications of a general right to privacy.” In the case of copyright, for example, what is protected is not the quality of the writing or its artistic value: the “existence of the right [does not] depend upon the nature or value of the thought or emotion … [as] the same protection is accorded to a casual letter or an entry in a diary.” Thus, just because a photograph of me does not have artistic value does not mean it should not be protected, since its protection arises from being me, not from the effort invested by the photographer nor from its potential status as an important commentary on life. Even if I send a letter to someone else, they do not have the write to publish it without my consent. The underlying goal is to allow an individual to control the dissemination of what is, fundamentally, theirs. But it is not a property right in the traditional sense, and is not about physical possession or trespass:

The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality (205).

And the invasion of privacy, they continue, is like the “injuries sustained … by an attack upon reputation … or a violation of honor.” In each case the injury is non-physical, but real, and similar injuries are already punishable by law. In short, “existing law affords a principle which may be invoked to protect the privacy of the individual” (206).

“Visible downgrading” by Alex Wellerstein. CC BY 2.0 license.

The concept of “privacy”–as in “the right to privacy”–can be understood in a number of ways. This multitude of potential meanings and uses is partly why the concept is controversial, confusing, and perhaps even contradictory. Previously I have discussed the difference in perceptions of privacy in the 19th century, where the legal focus seemed to be more on “confidentiality” than what we have come to understand as “privacy” today. That is, the 19th century concern was with maintaining trust relationships between people rather than with protecting either secrecy or autonomy (although that is not to say that these were not valued).

Autonomy

This changed with the 1890 publication of the Samuel Warren and Louis Brandeis law review article called “The Right to Privacy.” In this article, Warren and Brandeis are actually concerned with something more akin to autonomy than secrecy: “from Greek autonomia, from autonomos  ‘having its own laws,’ from autos ‘self’ + nomos ‘law’” (from Apple’s dictionary app).  That is, allowing people to control their own self-identity, rather than allowing it to be exploited by (for example) yellow journalists. Secrecy, on the other hand, is about keeping something away from the knowledge of others. The concepts are related, but distinct and different, and require different legal approaches.

“Paparazzi” by Clément Seifert. CC BY-NC-SA 2.0 licensed.

The Warren and Brandeis article advocated for the protection of a person’s “inviolate personality” and the “fundamental right to be let alone.” They were not concerned with illegal government searches of private residences–or even the trespasses of journalists in private land–but rather with the publication and dissemination of information that, they believed, most properly belonged to a person. In other words, their approach was akin to a broad notion of copyright or “right of publicity,” because it proposed allowing people to control the publication of their own likeness (photos of themselves, for example). Such control was based on a kind of “moral right,” in a sense, to own one’s own self, or to be “autonomous.” The implications of a right to control the publication of information about one’s self has the potential to conflict with the First Amendment rights of others in a way that a right to privacy as secrecy might not.

In 1928, now a Supreme Court justice, Brandeis wrote in dissent in Olmstead v. U.S. that the right to privacy was the “right to be left alone–the most comprehensive of rights, and the right most valued by a free people.” Cornell’s Legal Information Institute explains that the right to privacy has thus “developed into a liberty of personal autonomy protected by the 14th amendment.” The focus on a “right to privacy” as “a liberty of personal autonomy” is why the Fourteenth Amendment (due process and equal protection), and not the Fourth Amendment (search and seizure), is often so important today when discussing privacy, and is the constitutional underpinning for key decisions like Roe v. Wade.

Secrecy

“Completely Tapped” by Byung Kyu Park. CC BY-SA 2.0 license.

A right to secrecy is most closely aligned with the Fourth Amendment (search and seizure) and with trespass, and less with the “penumbra” of due process or equal protection. A right to keep things secret is also about “inviolability” in some sense. Thus, in Olmstead, Brandeis could argue that a wiretap could intrude on a “right to privacy”–the “right to be let alone”–as part of a violation of the Fourth Amendment, even though no publication or dissemination had necessarily occurred. A right to autonomy, to protect one’s self, might well require a right to secrecy in a case involving wiretaps, but it has less value in protecting abortion rights, for example, where the real question is one of self-determination, not secrecy.

Approaching a right to secrecy legally, one might prosecute an overzealous journalist not for the publication of embarrassing information–and certainly not for photos taken in public places–but for a trespass involved in obtaining private letters. In some cases, the First Amendment might still be implicated (think of the Pentagon Papers), but the restraint on speech is much weaker when what is being restricted is not directly the publication of materials, but rather the manner in which they were obtained.

In this sense, then, data privacy laws–which Eugene Volokh, for example, has explained are in many ways in conflict with the First Amendment–might be more readily disentangled from that constitutional problem if they are realigned with traditional laws against trespass. The law, then, would not be focused on preventing publication (although that might be an issue still, and might still have First Amendment implications), but rather on punishing transgressions or trespasses.

Jack M. Balkin, from the Knight Foundation. CC BY-SA 2.0.

In “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society,” Jack Balkin (of the blog Balkinization) writes about what he sees as the appropriation of free speech ideals by media corporations in an effort to maximize their capital investments:

Thus, in the digital age, media corporations have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and expand their intellectual property rights. … Invoking a property-based theory of free expression, they have rejected arguments that public regulation is necessary to keep conduits open and freely available to a wide variety of speakers. (22)

Balkin sees this as reminiscent of a similar appropriation during the first Gilded Age of the 1870s and 1880s especially, when the “robber barons” grew wealthy and strong. Corporations of the time lobbied (and won) for new property rights and new constitutional protections against employment regulations (24). The abolitionists and others had celebrated the freedom to labor for whom one chose as a rejection of slavery; the corporations reinterpreted this as the “freedom of contract,” and used it to prevent government labor regulations (24). So, for example, when Congress passed a child labor law in 1916, the courts–drawing on the freedom of contract now enshrined as a principle in the Constitutional theory of the day–struck it down two years later (in Hammer v. Dagenhart).

Bilkin writes:

In what Clinton Rossiter called the “Great Train Robbery of Intellectual History,” laissez-faire conservatives appropriated the words and symbols of early nineteenth-century liberalism–liberty, opportunity, progress, and individualism–and gave them an economic reinterpretation that served corporate interests. … By the turn of the twentieth century, the best legal minds that money could buy had reshaped the liberal rights rhetoric of the 1830s into a powerful conservative defense of property that they claimed was the rightful heir to the best American traditions of individualism and personal freedom. (24–25)

Today, Bilkin said, we’re seeing a similar move: “The right to speak has been recast as a right to be free from business regulation” (25). Corporations have moved to extend copyright, making it both broader (covering more) and longer (lasting for 70+ years instead of the original fourteen years of 1790. ) They have also argued that networks should be freer than ever of government regulation, because such regulations–passed in the name of protecting the public’s speech–infringes on their freedom of speech.

(Interesting note: this move–discussed in Balkin’s 2004 article–is very similar to what happened with corporate money and speech in the 2010 Citizen’s United decision.)

Copyright law is often approached in terms of debates over competing interpretations of the law: should copyright be used to protect the author’s freedom, or to encourage the public distribution of culture and information, or to turn intellectual products into marketplace commodities, or to serve the interests of corporate publishers and distributors?

He then explains that, at least in the Western–and perhaps especially in the American–tradition, “copyright is the enactment of the dream that the disparate goals and values of individual creative freedom, commerce, and informational dissemination can be reconciled in law.”

In the United States, copyright has always served a functional purpose:

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 I, Section 8, Clause 8 of the United States Constitution).

Drawing on this, Streeter writes that:

From the beginning, therefore, copyright was understood more in functional than in formal or moral terms; the emphasis was more on copyright’s role in encouraging the distribution of culture and information than on its inherent justice.

American law depends on conceptual distinctions, particularly originality and the distinction between an idea and its expression, that are derived from the romantic image of authorship as an act of original creation whose uniqueness springs from and is defined in terms of the irreducible individuality of the writer.

But, Streeter points out, modern broadcast mediums–especially television, but also music, movies, and more–do not have individual “authors,” and yet our legal approaches to copyright still assume some notion of an individual author or creator.

One way the law has handled this is through the fictional “corporate person” who now owns copyrights and substitutes for individual creative humans. These large bureaucratic institutions now “create” most modern works, but still argue that consumers have a moral right to compensate them for their creation in a way that tends to invoke romantic authorship–and breaks down when the “creator” is a large multinational corporation.

Corporations have responded to create bureaucratic enforcement mechanisms, so-called “copyright collectives,” such as ASCAP and BMI. These groups create licensing arrangements that only roughly correspond to “actual” use or “actual” creators (and often strike me as rather reminiscent of a protection racket…).

New technologies that have emerged after Streeter’s book hold the potential for revolutionizing this relationship, although Amazon, Netflix, Hulu, Spotify, et. al. fundamentally do nothing about the problem of corporate content creation. They do, however, re-enable the possibility of individual creators (if such a thing really exists…) to escape the old bureaucratic confines and to more directly connect with consumers via mediators that can reduce the communications and collections overhead.

So is this really a revolution? Perhaps–but as I said, it does nothing about the major point of Streeter that much of today’s media has no individual creator at all. In such a case, these new technologies merely permit more efficient collection, cutting back on the number of “middlemen,” but don’t otherwise revolutionize anything at all.

Digital edition of “The Right to Privacy”

Part of the historical work I’ve been doing focuses on the history of privacy and the introduction of new technologies, like the telegraph. In terms of of the U.S. Constitution, I’ve been focused mostly on the Fourth Amendment (which regulates searches and seizures). However, the First Amendment’s speech protections are also potentially implicated, especially when it comes to modern information privacy law–a point Eugene Volokh explored in his 2000 law review article, “Cyberspace and Privacy: A New Legal Paradigm?”

I am not going to as fully analyze the issue here, but I wanted to begin thinking about it. To do this, I’m going to think about Volokh’s points in relation to Samuel D. Warren and Louis D. Brandeis’s 1890 law review article, “The Right to Privacy.” This highly influential piece advocated for “the fundamental right to be let alone.” But is it impossible to reconcile such a right with an equally compelling right to free speech?

Of course, the right to “free speech” is not an absolute right, and there are many constraints (yelling “fire” in a crowded theater is, of course, classic). But still, the requirement that the government “shall make no law … abridging the freedom of speech, or of the press” is explicitly written in the Constitution, whereas the “right to privacy” is part of its “penumbra.” So perhaps the debate is easier for originalists like Antonin Scalia, who can end the debate by asserting that the original meaning of the Constitution does not include a right to privacy, but it does include a free speech provision.

The Warren and Brandeis article attacks the new gossip columns and photographs made possible by new technologies of the era. They connect their argument for the protection of a person’s “inviolate personality” to the protections afforded, via copyright for example, to “personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form” (206).

Volokh quickly dispenses with arguments that copyright, despite its restrictions on speech, is itself barred by the First Amendment, primarily on the grounds that courts have not allowed “intellectual property owners the power to suppress facts” (1065, citing to Harper & Row v. Nation Enterprises). Thus, I may publish a cutting-edge exploration of new historical materials I spent years digging out of the archives and while you may not simply photocopy and redistribute my work, you can write your own work drawing on all the labor I spent bringing forth these new facts. (See also, “You do not get an ‘A for effort’ with copyright.”)

But do I have a right to prevent the publication of personal facts about me, however embarrassing they may be? (Remember, copyright protects my creative expression, not the bare facts themselves, so it’s no help here.) What about restrictions on publishing my criminal history? Or my video rental history? Or  my credit card purchasing history?

If I obtain these items via a contractual arrangement, Volokh says, there is no problem, because enforcing contractual restrictions on speech does not offend the Constitution. But what if I get them without agreeing to a contract? Can the government still prohibit their publication? Volokh says there is a problem here (1092–94).

Very often, free speech protections are analyzed under a “marketplace of ideas” paradigm. In this analysis, we need speech–and allowing it is good–because it contributes to our ability to make decisions, and the greater the marketplace, the better decisions we can make. Bad ideas are countered by more speech, not by restricting their entry into the marketplace.

My criminal history and credit card history are certainly good information to have if you are evaluating me for a job or elected office, so in a marketplace analysis, they shouldn’t be suppressed. But there is a realm of “non-public-concern” topics that can be restricted (accidental nudity, for example)–but Volokh suggests this is too slippery of a concept to function as an effective test (1094–95).

Government can regulate speech if there is a “compelling state interest” (1106). Is privacy protection sufficiently compelling? Relatedly, is the penumbra-derived right to privacy sufficient to counter free speech arguments?

Volokh argues that privacy rights are “statutory or common-law” derived, and are not “analogous to a constitutional right” (1108). Furthermore, the First Amendment only prevents government interference with speech, not private actions to interfere with it; thus, privacy rights might well only protect against government violations, not allow for government to regulate non-government interference with privacy.

Volokh attacks Warren and Brandeis most directly when he writes:

On the other hand, if the claim is that the ability of private parties to communicate personal information about others
by itself “destroy[s] individual dignity and integrity and emasculate[s] individual freedom and independence,” “deprive[s people] of [their] individuality,” makes it impossible for “intimate relationships [to] exist,” or denies that a person’s “existence is his own,” such a claim is simply false.

This is pretty close to the argument that Warren and Brandeis make when they attack gossip columns. But even if the claim is true, Volokh says restricting publication to protect this is unconstitutional:

Under current constitutional doctrine, the answer seems to be no. Though the Supreme Court has sometimes left open the door to the possibility of restricting truthful speech simply on those grounds, the general trend of the cases cuts against this: Even offensive, outrageous, disrespectful, and dignity-assaulting speech is constitutionally protected.

It seems to me pretty clear that Volokh does not agree with Warren and Brandeis. I still think there’s potential for an alternative approach that might allow for certain kinds of privacy protection without overly violating the U.S.‘s very strong speech protections (note that this isn’t a problem generally in Europe, which permits much greater restrictions on speech when it serves as a protection against, for example, Nazism), but it’s not yet obvious to me what approach would be.

Related articles

• Knowingly False Statements of Fact and the First Amendment (volokh.com)

I think analogy reflects a desire to economize on thought. Thus, if we construct evidential reasoning on the basis of, say, Bayesian networks, then–instead of creating a whole new network to reflect a new situation–we simply build on an old network, and replace nodes with new facts, build a few nodes, and generally spiff things up.

Image via CrunchBase

David Pogue writes about a new startup that’s trying to work around the limitations media companies have placed on movie providers like Netflix and Redbox:

At its California data center, Zediva has set up hundreds of DVD players. They’re automated, jukebox-style. You’re not just renting a movie; you’re actually taking control of the player that contains the movie you want. The DVD is simply sending you the audio and video signals, as if it were connected to your home with a really, really long cable.

via A Clever End Run Around the Movie-Streaming Gremlins — NYTimes.com.

Zediva seems pretty sure all this is OK under copyright law (“We’re confident that the law allows you to watch a DVD that you’ve rented,” said a company representative), but I thought I’d look a little deeper into the law. After all, the plan seems remarkably similar to an attempt by a hotel to do something similar for use of its guests. In On Command Video Corp. v. Columbia Pictures, 777 F. Supp. 787 (Dist. Court, ND California 1991), a federal court found that using a system of VCRs to play movies for guests violates copyright as a “public performance.” The hotel room itself is not a “public place,” but the transmission is to the public–and therefore infringing under 17 U.S.C. § 101.

On the other hand, in Columbia Pictures Industries, Inc. v. Professional Real Estate Inv., Inc., 866 F. 2d 278 (Court of Appeals, 9th Circuit 1989), the Court of Appeals held that renting videotapes in a hotel to guests to watch in their rooms is not a violation of copyright.

Similar to On Command, in Columbia Pictures Industries v. Redd Horne, 749 F. 2d 154 (Court of Appeals, 3rd Circuit 1984), the 3rd Circuit held that showing videotapes played on centrally located VCRs to patrons in private booths was a “public performance” because the booths were generally open to the public and was thus also infringing under 17 U.S.C. § 101.

Zediva’s system sends materials to private homes, not to a “public place.” This likely gets it out of the Redd Horne fact pattern. Nonetheless, Zediva does transmit to the public. Unfortunately, this does make it sound rather like On Command, so I would be very interested to hear details as to how Zediva’s situation is distinguishable, or why they should not fall under the same logic used in On Command.

Related articles

• Zediva’s Movie Rentals Are 50% Cheaper Than iTunes (techland.time.com)
• Crazy Zediva exploits copyright loophole to stream movies you can’t get online elsewhere (news.cnet.com)
• Is Zediva’s New-Release Movie Streaming Service Legal? (wired.com)

Since its codification in Britain in 1710, the length of copyright protection has continued to be extended, from an initial 14 years to today’s 70–120 or more years.

Before 1790

In Europe in the early fifteenth and sixteenth centuries, as printing began to spread, copyright only existed as a monopoly granted by royalty to specific printers to cover specific works. It was not a general rule of law that covered all written work, much less all printed texts. In England in the seventeenth century, the Stationer’s Company–a private organization, albeit one with government recognition–gained the absolute right to manage and grant the right to copy printed texts. The first recognizably modern version of copyright in England, and the one to which modern American copyright can trace its roots back, was the Statute of Anne, passed by the British Parliament in 1710.

In early modern France, royal decrees before the eighteenth century established the duration of copyright to last in perpetuity, at least until rights were sold to a publisher (which would then limit the duration). Remnants of this focus on authors can still be seen in the sense of the “droit d’autor” and artistic “moral rights.” Post-Revolution, rights were limited to the lifetime of an author plus 5–10 years. The notion of literature as public property at heart, but granted to people for a length of time, was entrenched in the system.

As of 1710, the Act granted monopoly rights to publishers for the period of 14 years, for the express purpose of encouraging “learned men to compose and write useful books.” This Act effectively created the legal category of the “public domain,” since once the 14 years expired, texts could be copied by anyone and belonged to no one (or to the public at large). The Lords confirmed the limited duration of copyright in Donaldson v. Beckett in 1774, a decision inherited in the United States as part of our common law (even though the Statute of Anne itself did not apply to the colonies).

1790: 28 years

In 1790 in the United States, the first Copyright Act of 1790–closely modeled on the Statute of Anne–created a copyright term of 14 years from date of recording, along with the potential for renewal by surviving authors for another 14 years. Total protection, then, consisted of a maximum of 28 years.

1831: 42 years

In 1831, a revision to the Act extended the initial potential copyright period to 28 years, with the potential to extend it for another 14. The maximum thus became 42 years.

1909: 56 years

Image via Wikipedia

In 1909, Congress reformed copyright again, changing the duration to be an initial 28 years, followed by a possible extension of another 28. Total potential protection, then, was now 56 years.

1976: life + 50 or 75 years

The 1976 revision was, arguably, the most radical change to the law in 200 years. Copyright was changed to be the lifetime of an author plus 50 years, with works for hire (those that were commissioned or were produced at the behest of a corporation) protected for a total of 75 years. Fair use was codified specifically in statutory law at this time too, although the specifics of application were left to the courts. Much of the goal of this Act was to bring the United States in line with the rest of the world.

1998: life + 70 or 120/95 years

In 1998, the Copyright Term Extension Act extended the length copyright again, to the life of the author plus 70 years, or, when considering corporate “authors,” 120 years after creation or 95 years after publication, whichever is earlier. Additionally, this Act also covered works created in 1923 or later, applying the new durations to those works.

Related articles

• Copyright and Fair Use — Information & Library Services (umuc.edu)
• You do not get an “A for effort” with copyright

Copyright originally only applied to printed works, and though it has been extended to sound recordings, movies, and software, its protections have never yet covered fashion design. Copyright in the American tradition provides an incentive to encourage the creation of new works, with the goal of benefitting everyone by increasing the amount of creative works. Despite this lack of statutory incentive, the fashion industry has never lacked for creativity–but nonetheless, some still think fashion needs protection in order to be innovative:

On Aug. 5, Sen. Charles E. Schumer (D-N.Y.) introduced S.3728: The Innovative Design Protection and Piracy Prevention Act. He’s got 10 co-sponsors — including three Republicans — and a big idea: to extend copyright protections to the fashion industry, where none currently exist. That’s right: none. I — well, not I, but someone who can sew — can copy Vera Wang’s (extremely expensive) dress and sell it to you right now (for much less), and Wang can’t do a thing about it.

via In copycats vs. copyright, the knock-off wins from the Washington Post.

So if Sen. Schumer has to introduce a law to protect the fashion industry from fakes, how come knock-offs are already seized by police? The answer is that even though copyright doesn’t protect fashion, trademark does. Copyright gives a medium-term monopoly to creators, while provides much more limited protection–but lasts as long as the brand protects and uses its mark.

In short, it’s perfectly OK to copy a high-end purse, as long as you don’t copy the logo and brand of the designer. Copy all you want, but don’t pretend your copy is the real thing. The point of this–as with trademark generally–is to avoid confusing or misleading customers. From the business side, the point is to keep poor imitations from cheapening the investment in the brand.

Of course, it’s not always clear what’s merely a copy vs. what’s actually counterfeit, but that’s why we have lawyers!

Related articles by Zemanta

• The Many Ways In Which Fashion Copyrights Will Harm The Fashion Industry (techdirt.com)
• Schumer Bill Seeks to Protect Fashion Design (runway.blogs.nytimes.com)
• “Freedom to Copy” and the Fashion Industry (ipkitten.blogspot.com)

Who better than those snarky peeps at Woot to call them on the implications of such a scheme?

So, The AP, here we are. Just to be fair about this, we’ve used your very own pricing scheme to calculate how much you owe us. By looking through the link above, and comparing your post with our original letter, we’ve figured you owe us roughly $17.50 for the content you borrowed from our blog post, which, by the way, we worked very very hard to create.

via Woot® : One Day, One Deal™.

One might argue, I suppose, that somehow the material produced by “the media” is different from what the rest of us produce. While certainly such a scheme could be implemented, it hardly seems fair. More importantly at the moment, of course, copyright law makes no such distinction (even if some have attempted to embrace/extend the so-called “hot news” doctrine to create the potential basis for such a distinction).

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• Woot Asks AP To Pay Up For Quoting Woot Blog Post Without Paying (techdirt.com)