Archive: Using Copyright to Protect Privacy

This is a post I wrote long ago on another site. In this case, it’s from Rusty Foster’s Kuro5hin.Org which has long since disappeared from the Internet.

This one I don’t really agree with anymore; it’s too much of a “quick hack” to be a good idea for a long-term solution.

An old post of mine from Kuro5hin.Org, dated “Sun Jun 11th, 2000 at 08:37:34 PM EST”.

With the advances in computer technology of the last two decades, particularly in database and indexing efficiency, personal privacy has become a major public concern. I’m not particularly familiar with privacy laws in other countries, but American law makes essentially no provisions for personal privacy. There are laws, however, which are much the same in all Berne Convention countries and could potentially be used to clear up this whole mess.

I’m talking about copyright law. The Berne Convention guarantees ownership and control of a work to its creator, regardless of notice on or registration of the work. It guarantees that the right to use the work is restricted to the creator for a specified period of time and contains provisions for unauthorized public use under certain circumstances (the Fair Use exemption). These provisions could be used to assure that personal privacy remain a right.

Consider, for example, how these laws would work if personal information (i.e., all the data that describes a person) were legally classed as a copyrightable work created by that person. This is a reasonable proposition, in my opinion, since the existence of the person did actually create the data, though I suppose you could argue that copyright should vest in the parents and pass to the child when they reach legal majority. Several other personal rights are arranged that way as well.

Existing copyright law, in this situation, would prohibit anyone from collecting and redistributing this information, since they would not hold a license for it. The person could, of course, grant limited licenses for use of the data to their doctor (for retention and/research purposes), to the phone company (for a one-time publication in the telephone directory) or to any other entity they chose. But no one else could legally collect and distribute the data.

The Fair Use provisions would maintain the uses to which personal data needs to be kept public. A copyrighted work may be excerpted for review or discussion in public forums such as newspapers. Legal organizations may already cite entire copyrighted works in court for either side in a case, so law enforcement would not be affected.

The amusing thing about this idea is that you don’t even need to pass a law to effect it. All that would be necessary is a decision by a court (and the inevitable sequence of appeal up to the Supreme Court in the U.S.) stating that personal information was a work covered by existing copyright law and *boom* all those obnoxious intrusive databases, and the bottom feeders who make their livings renting them back and forth, become illegal. Even the DMCA would become pro-privacy if this were to happen, since it would then be illegal for a corporation to attempt to bypass any security mechanism you put in place to protect you personal information.

Fascinating idea, isn’t it? It’s just a slight change in how you interpret one word …