intellectual property – Techdirt (original) (raw)

‘Lol, No’ Is The Perfect Response To LAPD’s Nonsense ‘IP’ Threat Letter Over ‘Fuck The LAPD’ Shirt

from the fuck-the-lapd dept

We’ve had plenty of posts discussing all manner of behavior from the Los Angeles Police Dept. and/or the LAPD union here at Techdirt. As you might imagine if you’re a regular reader here, the majority of those posts haven’t exactly involved fawning praise for these supposed crimefighters. In fact, if you went on a reading blitz of those posts, you might even come away thinking, “You know what? Fuck the LAPD!”

Well, if you wanted to display your sentiments while you went about your day, you might go over to the Cola Corporation’s website to buy one particular shirt it had on offer there before they completely sold out.

Now, it’s not uncommon for misguided entities to issue intellectual property threat letters over t-shirts and apparel, even when it is of the sort that is obviously fair use. Given that, you might have thought it would be the Los Angeles Lakers that sent a nastygram to Cola Corp. After all, the logo in question is clearly a parody of the LA Lakers logo.

Nope!

It was the Los Angeles Police Foundation via its IMG representatives. The LAPF is something of a shadow financier of the LAPD for equipment, including all manner of tech and gear. We have no idea how an entertainment agency like IMG got in bed with these assbags, but it was IMG sending the threat letter you can see below, chock full of all kinds of claims to rights that the LAPF absolutely does not and could not have.

If you can’t see that, it’s a letter sent by Andrew Schmidt, who represents himself as the Senior Counsel to IMG Worldwide, saying:

RE: Request to Remove Infringing Material From www.thecolacorporation.com Dear Sir/Madam:

I am writing on behalf of IMG Worldwide, LLC (“IMG”), IMG is the authorized representative of Los Angeles Police Foundation CLAPF) LAPF is one of two exclusive holders of intellectual property rights pertaining to trademarks, copyrights and other licensed indicia for (a) the Los Angeles Police Department Badge; (b) the Los Angeles Police Department Uniform; (c) the LAPD motto “To Protect and Serve”; and (d) the word “LAPD” as an acronym/abbreviation for the Los Angeles Police Department (collectively, the “LAPD IP”). Through extensive advertising, promotion and the substantial sale of a full range of licensed products embodying and pertaining to the LAPD IP, the LAPD IP has become famous throughout the world; and as such, carries immeasurable value to LAPF.

We are writing to you regarding an unauthorized use of the LAPD IP on products being sold on your website, www.thecolacorporation.com (the “Infringing Product”). The website URL and description for the Infringing Product is as follows: https://www.thecolacorporation.com/products fack-the- lupd pos-1&sid=435934961&&variant=48461787234611 FUCK THE LAPD For the avoidance of doubt, the aforementioned Infringing Product and the image associated therewith are in no way authorized or approved by LAPF or any of its duly authorized representatives.

This letter hereby serves as a statement that:

  1. The aforementioned Infringing Product and the image associated therewith violate LAPF’s rights in the LAPD IP
  2. These exclusive rights in and to the LAPD IP are being violated by the sale of the Infringing Product on your website at the URL mentioned above;
  3. [Contact info omitted]
  4. On information and belief, the use of the LAPD IP on the Infringing Products is not authorized by LAPF, LAPF’s authorized agents or representatives or the law.
  5. Under penalty of perjury, I hereby state that the above information is accurate and I am duly authorized to act on on behalf of the rights holder of the intellectual. property at issue I hereby request that you remove or disable access the above-mentioned materials and their corresponding URL’s as they appear on your services in as expedient a manner as possible.

So, where to begin? For starters, note how the letter breezily asserts copyright, trademark, and “other licensed indicia” without ever going into detail as to what it thinks it actually holds the rights to? That’s an “indicia” of a legal threat that is bloviating, with nothing to back it up. If you know what rights you have, you clearly state them. This letter does not.

If it’s a copyright play that the LAPF is trying to make, it’s going to go absolutely nowhere. The use is made for the purposes of parody and political commentary. It’s clearly fair use, and there are plenty of precedents to back that up. Second, what exactly is the copyright claim here? It’s not the logo. Again, if anything, that would be the Lakers’ claim to make. The only thing possibly related to the LAPD would be those letters: LAPD. And, no, the LAPD does not get to copyright the letters LAPD.

If it’s a trademark play instead, well, that might actually work even less for the LAPF, for any number of reasons. Again, this is parody and political commentary: both First Amendment rights that trump trademarks. More importantly, in trademark you have the question of the likelihood of confusion. We’re fairly sure the LAPF doesn’t want to make the case that the public would be confused into thinking that the Los Angeles Police Foundation was an organization that is putting out a “Fuck the LAPD” t-shirt. Finally, for there to be a trademark, there has to be a use in commerce. Is the LAPF selling “Fuck the LAPD” t-shirts? Doubtful.

But that’s all sort of besides the point, because the LAPF doesn’t have the rights IMG asserted in its letter. Again, the only possible claim that the LAPF can make here is that it has ownership to the letters LAPD. And it does not. Beyond the fact that it had no “creative” input into LAPD, the LAPD is a city’s law enforcement agency and you cannot copyright or trademark such a thing. And, as we’ve discussed multiple times in the past, government agencies don’t get to claim IP on their agency names. The only restrictions they can present are on deceptive uses of logos/seals/etc.

But that is clearly not the case here. And we already have some examples from a decade ago of government agencies demanding the removal of parody logos and… it not ending very well for the government.

So, what is actually happening here is that the LAPF/LAPD (via IMG) is pretending it has the right to screw with private citizens in ways it absolutely does not, and is using those false rights to harass those private persons with threatening behavior to intimidate them into doing what the LAPF wants. Which, if I’m being totally honest here, is certainly on brand as roughly the most police-y thing it could do in response to a simple t-shirt that is no longer even for sale.

Now, you might imagine that the Cola Corporation’s own legal team would reply to the silly threat letter outlining all of the above, crafting a careful and articulate narrative responding to all the points raised by the LAPF, and ensuring that their full legal skills were on display.

Instead, the company brought on former Techdirt podcast guest, lawyer Mike Dunford, who crafted something that is ultimately even better.

If you can’t read that, you’re not missing much. It says:

Andrew,

Lol, no.

_Sincerel_y,
Mike Dunford

Perfect. No notes. May it go down in history alongside Arkell v. Pressdam, or the infamous Cleveland Browns response to a fan complaining about paper airplanes, as the perfect way to respond to absolutely ridiculous legal threat letters.

For what it’s worth, Dunford’s boss, Akiva Cohen, noted that this letter was “a fun one to edit.” We can only imagine.

This was a fun one to edit

[image or embed]

— AkivaMCohen (@akivamcohen.bsky.social) Apr 18, 2024 at 2:47 PM

Filed Under: copyright, intellectual property, lapd, lol, lol no, mike dunford, police, threats, trademark
Companies: cola corporation, img, la lakers, lapf

Something Stupid This Way Comes: Twitter Threatens To Sue Meta Over Threads, Because Meta Hired Some Of The People Elon Fired

from the everything-is-stupid dept

Just fucking fight it out already.

The whole stupid “cage match” brawl thing was started when Meta execs made some (accurate) cracks about Elon’s management of Twitter, and Elon couldn’t handle it. But, now with the launch of Meta’s Threads, Elon feels the need to send a ridiculously laughable legal threat to Meta.

Elon’s legal lapdog, Alex Spiro, dashed off a threat letter so dumb that even his employer, Quinn Emanuel — who is famous among powerful law firms for having no shame at all — should feel shame.

Dear Mr. Zuckerberg:

I write on behalf of X Corp., as successor in interest to Twitter, Inc. (“Twitter”). Based on recent reports regarding your recently launched “Threads” app, Twitter has serious concerns that Meta Platforms (“Meta”) has engaged in systemic, willful, and unlawful misappropriation of Twitter’s trade secrets and other intellectual property.

Lol, wut? Threads is like a dozen other microblogging type services. There are no “trade secrets” one needs to misappropriate from Twitter. I mean, seriously, who in their right mind thinks that Meta with billions of users of Facebook, Instagram, and WhatsApp is learning anything from Twitter, beyond “don’t do the dumbshit things Elon keeps doing.”

Over the past year, Meta has hired dozens of former Twitter employees. Twitter knows that these employees previously worked at Twitter; that these employees had and continue to have access to Twitter’s trade secrets and other highly confidential information; that these employees owe ongoing obligations to Twitter; and that many of these employees have improperly retained Twitter documents and electronic devices. With that knowledge, Meta deliberately assigned these employees to develop, in a matter of months, Meta’s copycat “Threads” app with the specific intent that they use Twitter’s trade secrets and other intellectual property in order to accelerate the development of Meta’s competing app, in violation of both state and federal law as well as those employees’ ongoing obligations to Twitter.

Let’s break this one down, because holy shit, is it ever stupid. The reason that Meta was able to hire a bunch of former Twitter employees most likely had to do with the fact that Elon recklessly fired 85% of the existing staff, and did so willy nilly, destroying tons of institutional knowledge and knowhow. And yet, Musk claimed he had to get rid of these employees because they were not hardcore, and were useless to Twitter. Yet, now we’re being told they are somehow invaluable to Threads? That doesn’t even pass the most basic laugh test.

The claim that “these employees have improperly retained Twitter documents and electronic devices” is particularly ridiculous, given that I’ve spoken to many, many, many ex-Twitter employees who have spent months trying to return their laptops, without Twitter bothering to respond to them at all. To use that against those employees is ridiculous.

And, really, what fucking “trade secrets” or “intellectual property’ do Spiro and Musk honestly think that any former employees took with them to Meta? How to competently run a microblogging service? This is all bluff and bluster from Elon, who knows he’s fucked up Twitter and is scared of any competition.

On top of that, assuming any of those employees are in California, then state law for the last century and a half has prohibited arguments regarding non-competes or similar, because the state has a stated policy that people should be allowed to be employed. So, to the extent that Twitter thinks it can enforce some sort of quasi-non-compete agreement, that’s just not going to fly.

Update: Also, Meta has now said that none of the small team working on Threads is a former Twitter employee anyway, so the assumptions in the letter are entirely false.

The letter continues:

Twitter intends to strictly enforce its intellectual property rights, and demands that Meta take immediate steps to stop using any Twitter trade secrets or other highly confidential information. Twitter reserves all rights, including, but not limited to, the right to seek both civil remedies and injunctive relief without further notice to prevent any further retention, disclosure, or use of its intellectual property by Meta.

In short, even as we’re not paying many of our bills and are desperately short on cash, especially compared to Meta, which has a building full of litigators, we’re ready, able, and willing to file a completely bogus, vexatious lawsuit just to try to annoy you.

Then we get to the real fear: that Meta might make it easy to recreate your Twitter social graph on threads:

Further, Meta is expressly prohibited from engaging in any crawling or scraping of Twitter’s followers or following data. As set forth in Twitter’s Terms of Service, crawling any Twitter services — including, but not limited to, any Twitter websites, SMS, APIs, email notifications, applications, buttons, widgets, ads, and commerce services — is permissible only “if done in accordance with the provisions of the robots.txt file” available at https://twitter.com/robots.txt. The robots.txt file specifically disallows crawling of Twitter’s followers or following data. Scraping any Twitter services is expressly prohibited for any reason without Twitter’s prior consent. Twitter reserves all rights, including but not limited to, the right to seek both civil remedies or injunctive relief without further notice.

So, yeah. This letter is basically Elon publicly admitting he’s scared shitless of Threads and its potential impact on Twitter. This is a “holy shit, this is bad, we’re fucked” kinda letter. Not one from a position of strength. Honestly, this letter makes me think that Threads has a better chance than I initially expected, if Musk is so damn scared of it.

Of course, to date, I’ve seen no indication that Threads was looking to scrape Twitter or enable easy transfer of the Twitter social graph to threads. Of course, lots of third parties often create such tools, and we’ve already seen Elon freak out over tools that helped users find their Twitter social graph on Mastodon, so I guess this is how he competes. By throwing up bogus walls.

That said, Meta can’t really say much here. After all, it set one of the horrible precedents in court regarding scraping data from websites to build services on top of them. To the extent that Twitter actually has any legal power to stop Meta from scraping, that power was given to it via a bad lawsuit that Meta itself started and pushed to completion.

Though, again, there’s been no indication that Meta actually plans to do that. The fact that it’s able to bootstrap its network off of the (much, much, much larger than Twitter) Instagram network suggests it has no need to port Twitter’s social graph over.

Again, this legal threat letter appears to be legal bluster from the much weaker party of the two.

I doubt this turns into an actual legal dispute, though with Elon, you never really know. If it does turn into a live dispute however, assuming that Meta didn’t do something preposterously silly (like asking former Twitter employees to share internal documents), then Meta will destroy this lawsuit easily.

But, you know, if we’re going to see a cage match between these two billionaires, why not just throw this on the undercard as well.

Filed Under: alex spiro, competition, elon musk, employees, intellectual property, mark zuckerberg, scraping, threads, trade secrets
Companies: meta, threads, twitter

Another 'Wordle' App Mixup Occurs, Only This Time Recipient Of Undue Rewards Builds Good Will

from the word-up dept

This post was written before the news today that the NY Times was buying Wordle. It will be interesting to see if suddenly “IP issues” start becoming a bigger deal to the NY Times than they were to the original developer…

Just a week or so back, we discussed how one man ripped off Wordle, a browser-based Mastermind style game who’s creator insists be free and unmonetized. In that instance, Zach Shakked copied the game with only a few minor additional features and released it as an app going by the same name, Wordle, only to find that the entire internet decided this was a dick move and helped get the app delisted from Apple and Google stores. That was a story about how one bad actor got dealt with without anyone having to go down intellectual property or legal routes.

Well, here we are again with yet another unaffiliated Wordle app syphoning off money from people who think they’re getting the browser game in an app… only this time the recipient of that undue income is building up a ton of goodwill by not being a jerk about it.

As spotted by GR+, Josh Wardle’s Wordle has led to squillions of confused players (hello!) accidentally downloading a five-year-old app with the same name to their mobile devices. The result being, creator of the other Wordle ended up receiving close to 200,000 downloads in a couple of days. More than it had received in total in the previous five years. And in turn, generating him a whole bunch of advertising revenue.

Steven Cravotta created that app five years ago as a teenager almost strictly to practice his coding skills. When he woke up the other day to suddenly find advertising revenue pouring in from the since-forgotten app, he didn’t simply sit back and start counting all the dollar signs floating before his eyes. Instead, he started tweeting about how weird this all was and how much he wishes that the media did a better job of differentiating between Wordle the browser game and any Wordle mobile app.

If you follow that tweet-thread all the way through, you’ll notice a couple of things. Cravotta spends a lot of time pointing out how weird this all is. Then he mentions that he is reaching out to Wordle creator Josh Wardle to find out what his preferred charity is so he can donate all of this money to the cause of his choice. The two apparently did speak and landed on Boost! West Oakland, an organization that empowers youths in Oakland, California through school tutoring. And, while he was at it, he pointed out that his more recent and professional apps are available.

In other words, he acted reasonable and human, recognizing that this was all a bunch of confused people accidentally downloading his game. As a result, just as the internet went off on what a jerk the Wordle copycat guy seemed to be, so too is it and a bunch of mass media sites reporting on how human and awesome Cravotta is. This is leading more people to his current apps.

Sometimes a little public reaction is all you need, rather than worrying about IP.

Filed Under: charity, confusion, human, intellectual property, josh wardle, steven cravotta, wordle

Wall Street Journal Editorial Tries To Pretend That Fixing Repair Monopolies Is Bad For Your Health

from the greed-is-not-an-argument dept

Wed, May 5th 2021 05:31am - Karl Bode

So we’ve noted for a long time how efforts to monopolize repair have resulted in a growing, bipartisan interest in right to repair legislation in more than a dozen states. Whether it’s Sony and Microsoft’s efforts to monopolize game console repair, Apple’s tendency to monopolize phone repair (and bully independent repair shops), or John Deere making its tractors a costly nightmare to fix, a sustained backlash has been growing against draconian DRM, rampant abuse of copyright, and other behaviors that make repairing products you own as annoying and expensive as possible.

Granted this anger has extended into the medical arena, where the problem isn’t just a costly hassle, it’s a matter of life and death. This was particularly true during COVID, given many hardware manufacturers made getting access to repair manuals and parts cumbersome and expensive, if not impossible. As such, several states (including Texas) have been pushing both right to repair legislation that generally protects consumers, as well as legislation that takes aim at device manufacturers that make it an expensive headache for hospitals to repair their own equipment in a timely fashion.

Granted as more and more states push such legislation, more and more companies have taken to pushing misleading claims about what this legislation does. Whether it’s Apple’s attempt to claim that such legislation will turn states into “meccas for hackers” (which sounds kind of cool, honestly), or the auto industry’s false claim that such laws will help sexual predators, there’s been no shortage of sleazy efforts to undermine such laws using specious reasoning and unethical claims. And given that legislative efforts keep getting blocked, it has proven pretty effective.

Enter the Wall Street Journal, which this week joined the fun with a nonsensical editorial claiming that medical device right to repair legislation being pushed in Texas is somehow harmful to human health. The piece basically just consists of several paragraphs of author Tom Giovanetti lauding the miraculous innovation of copyright, while claiming the bipartisan right to repair movement is some kind of “leftist” plot. Why would the activist and reform groups operating on a shoestring budget do this? They hate innovation, apparently:

“American innovation is dependent on the protection of intellectual property. It encourages innovation by discouraging theft. But there are those who are philosophically opposed to intellectual property protection. Left-leaning public interest law firms and activist groups led by U.S. PIRG, an association of public-interest law firms, have been trying for years to undermine intellectual-property protection through ?right to repair? campaigns in state legislatures. During this legislative session they are pushing their anti-innovation agenda in the guise of a ?right to repair? advanced medical devices.”

For one thing, USPIRG is neither “left-leaning” nor a law firm (but no matter I guess, huh?). But it’s also amazing how the author just cheerfully floats over the fact that manufacturers enjoy a monopoly on tools, documentation, and replacement parts, and that those monopolies have been putting human lives at risk before, during, and likely after COVID. These restrictions often drive repair technicians to dangerous third-party fixes and firmware because they literally can’t get the help, tools, parts, or documentation they need; so often it’s the repair monopolies and DRM that are putting lives at risk, not the efforts to fix the problem.

Industry pretty consistently tries to claim that opening up access to essential repair tools and documentation somehow always poses some diabolical threat to security, privacy, and safety, when that’s never really been true. That doesn’t really stop Giovanetti, who also trots out the China bogeyman for good measure:

“Forcing disclosure of these advanced medical technologies and opening them up to uncertified technicians may also represent a cybersecurity threat. You may be troubled by the idea that voting machines can be hacked, but what about opening up MRI machines and PET scanners? Patients could be endangered by sabotaged medical devices, but they might also suffer from malfunctions that cause inaccurate test results and thus unidentified medical problems. Such concerns also include direct theft of American innovation by bad actors seeking advanced U.S. technology, such as China.”

Those who work in the industry and realize that draconian DRM, idiotic applications of copyright, and ham-fisted repair monopolies actively harm public health weren’t particularly impressed with the Journal’s latest hot take:

Dearest blocked @WSJ:

You (collectively, and the author who wrote this opinion piece specifically) are an idiot.

Sincerely,
The lead hardware designer and director of regulatory compliance for a FDA-regulated medical device manufacturer.https://t.co/Jt1j8nzLeG

— Michael Graziano (@voretaq7) May 3, 2021

In particular, many of the editorial’s claims about how the FDA works weren’t even remotely close to being true:

Among other things: The FDA STILL DOESN'T REGULATE SERVICE AND REPAIR *UNLESS* IT'S DONE BY A MANUFACTURER. Absent stuff that can nuke you (requires NRC licensing) anyone can service most medical devices.

Why? BECAUSE IT'S OVERWHELMINGLY SAFE: https://t.co/NXCThJy39n

— Michael Graziano (@voretaq7) May 3, 2021

As is the Wall Street Journal’s habit on many subjects, the author tries to dress up greed as some kind of elaborate ethos, and efforts to actually implement reform as some kind of dangerous, diabolical partisan plot. But the “right to repair” movement is growing at an amazing rate because it enjoys broad bipartisan support, from John Deere owners who don’t want to drive a thousand miles and pay a small fortune just to fix the tractors they own, to medical professionals who don’t want patients to die while they navigate some company’s obnoxious repair monopoly bureaucracy just to get a ventilator to work again.

Filed Under: covid, innovation, intellectual property, medical devices, right to repair, tom giovanetti

New Gear By Techdirt: OK, Landlord

from the well-deserved-eyeroll dept

Get your OK, Landlord gear from our store on Threadless »

Yesterday, we wrote about law professor Brian Frye’s deployment of the phrase “ok, landlord” and its success in riling up copyright holders who, usually, are insistent that copyrighted content should be treated just like property. We liked the idea so much that we figured it ought to be on a t-shirt — and so now it is, among other things!

OK, Landlord t-shirts, hoodies, buttons, notebooks, and many other pieces of gear are now available on Threadless, where you can also find our Copying Is Not Theft gear. All profits support Techdirt, and irritate copyright maximalists!

Filed Under: copyright, intellectual property, ok landlord, property

After writing this post, we realized that the phrase would make a great t-shirt! So now you can get yourself some OK, Landlord gear from the Techdirt store on Threadless »

For a long time now we’ve explained why comparing copyrights to property is fraught with problems. So much of the reason that we engage in property rights is to enable a more efficient allocation of scarce goods. When you have something that is not-scarce — or as the cool economist kids like to say “non-rivalrous and non-excludable” — treating them in the same manner as if they were scarce creates all sorts of weird problems, many of which we’ve spent two decades detailing on this site. Indeed, for every argument made that copyright is property, you could make a compelling case that it’s actually the opposite of property in that it frequently takes away the rights and ability of individuals to do what they want with products they rightfully own.

Five years ago, I noted that one of the big problems around the concept of “intellectual property” was the failure of people to separate the content, from the exclusive rights. That is, it’s fair to think of the copyright as a form of property — as the “right of exclusion” that it creates is more property-like — but that it must be seen as separate from the underlying content. The “copyright” is not the content. And so much of the discussion around copyrights conflates the right and the underlying content and that creates all sorts of problems.

Meanwhile, law professor Brian Frye has spent the last month or so making a really important point regarding the never-ending “is copyright property” debate — saying that if copyright is property, then copyright holders should be seen and treated as landlords. This whole approach can be summed up in the slightly snarky and trollish phrase: “OK, Landlord” used to respond to all sorts of nonsensical takes in support of more egregious copyright policies:

Like everyone, the copyright cops want to have their cake and eat it too. They claim that copyright is a kind of property, so the law should protect it just like any other kind of property. But they also claim that authors are morally entitled to copyright ownership because of their special contribution to society. I find both claims uncompelling, but in any case, they can?t have it both ways. If copyright is a property right, they have to own it and can?t claim the moral high ground.

What’s been most telling about this useful analogy is just how angry it seems to make copyright holders and copyright-system supporters. They react very negatively to the suggestion that they are “landlords” and any money they make from copyright licensing is a form of “rent.” But if you’re going to claim that your copyright is profit, then, well, the landlord moniker fits.

But the copyright cops persist, insisting that copyright is property, so copyright owners are entitled to the entire value of the works they create because that?s what property means. Accordingly, copying a work of authorship without permission is theft, even though it only increases the number of copies, because the copyright owner didn?t profit. And even consuming a work of authorship without permission is wrong because copyright owners are entitled to profit from every use of the work they own.

The circularity of these claims should be obvious: copyright is property because copyright owners receive exclusive rights, and copyright owners receive exclusive rights because copyright is property. But let?s run with it. Okay, copyright is property and copyright owners are property owners. Why are copyright owners entitled to profit from the use of their property?

Because they?re landlords. Copyright owners want to own the property metaphor? Then, let ?em own it. If copyright is property, then they are landlords and copyright profits are rent. Just like landlords, copyright owners simply make a capital investment in creating or acquiring a property, then sit back and wait for the profits to roll in.

As Frye notes, the whole idea that copyright holders are landlords (even as they claim that they are holding property that you need to pay them to use), shows the sort of emotional trickery that copyright holders use in also claiming some sort of moral right to their works as “creators.” They’re picking and choosing which arguments to use when — and, have long tried to imbue some sort of magical mystical status on holding the copyright to creativity (which is often quite different than creating itself).

Of course, the real issue at play is that many of the most vocal copyright system supporters want to believe that they’re “artists” who are fighting the system and speaking for the oppressed… and being a “landlord” who is renting out their property goes against that self-image. But as Frye notes, they can’t really have it both ways. If they want to declare that they have property rights, they should be perfectly find with recognizing that they are the current landlords for that “property.”

Want to irritate the next copyright holder you meet? Then get yourself an OK, Landlord t-shirt (or hoodie, or button, or notebook, or…) from the Techdirt store on Threadless »

Filed Under: brian frye, copyright, intellectual property, monopoly rents, ok landlord, property rights, rents

Andrew Yang's Horrible, No Good, Very Bad Tech Policy

from the did-you-hire-josh-hawley-to-write-your-policy? dept

Andrew Yang has been a bit of a surprise Presidential candidate this year, and is often described as a former “tech exec” or “Silicon Valley’s presidential candidate”. The “tech exec” claim seems a bit exaggerated, as he was a lawyer, and then ran a test prep company before a non-profit. Still, he got lots of attention for being a bit wonky and at least speaking the language of tech. His main claim to fame has been to support Universal Basic Income of $1,000/month which is a popular idea here in Silicon Valley.

However, the more we hear from Yang about his tech policy ideas, the more ridiculous and completely disconnected from the actual tech world he seems. He got a lot of flak a couple months back when he advocated for voting via your mobile device via blockchain which he declared to be “fraud proof.” This was universally mocked by security professionals and cryptocurrency experts, including one who described the proposal as “unbelievably dumb.”

So, his pro-tech campaign had already hit some choppy waters, and they got much, much worse last week when he introduced his official policy for regulating technology firms that is so filled with bad ideas that I initially thought it was a parody. It may be the single worst tech policy proposal of any current or former candidate for President (and, frankly, nearly all of them are pretty bad). It’s as if he took all the terrible ideas that Senator Josh Hawley has been proposing over the last year or so and said “Oh, I can top all of those with worse proposals.”

Let’s go through the details one by one.

Regulate the use of data and privacy by establishing data as a property right. The associated rights will enable individuals to retain ownership and share in the economic value generated by their data.

No, no, no, no. I’d been meaning to write a separate blog post for a while about this, but there are a few folks out there pushing for the idea that “data” should now be considered a form of “intellectual property,” with the originator holding some sort of property right over it. It’s a horrible idea. Take two horribly misunderstood and abused areas — intellectual property law and privacy — and awkwardly mash them together and pretend it will actually help? Come on. If we’ve learned anything about trying to build property rights over information, it’s that it creates all sorts of awful unintended consequences. Adding those to data will make them much worse.

I mean, given how many copyright, patent, and trademark trolls already exist, aren’t folks super excited about the ability to soon deal with data or privacy trolls as well? It’ll be a real blast. But what it won’t do is actually protect anyone’s privacy. Nor will it allow them to “share in the economic value generated by their data.” That’s now how any of this actually works. In fact, you already share in the economic value generated by your data by getting to use all the amazing services you already use. Charging for the data doesn’t open that up. In fact, it’s likely to close it down.

Minimize health impacts of modern tech on our people, particularly our children. I will create a Department of the Attention Economy that focuses on smartphones, social media, gaming, and apps, and how to responsibly design and use them, including age restrictions and guidelines.

A “Department of the Attention Economy”? What the fuck is that I don’t even…. And, again, this sounds exactly like Josh Hawley’s desire to appoint himself the product manager for the internet, by determining exactly how various apps and services must be designed. What makes Yang think that some bureaucrats are going to know how to do this well? Also, while I get that there are potentially reasonable concerns about how various apps and services are used, much of it still smacks of moral panics. Would Yang have created a special new regulatory agency to regulate rock and roll back in the 60s, determining age restrictions and guidelines for what kinds of songs were okay?

Stop the spread of misinformation that is eroding trust in our institutions and fanning the flames of polarization in our society. I will scale up VAT on digital ads to hasten a shift away from ad-driven business models, require disclosures on all ads, regulate bot activity, and regulate algorithms, addressing the grey area between publishers and platforms.

How do you stop the spread of misinformation without violating the 1st Amendment? Can someone ask Yang that? And if he thinks that “digital ads” are the problem, or that a VAT will somehow stop such misinformation, he’s even more disconnected from the reality of how tech works than I had previously imagined. Finally, that line “addressing the grey area between publishers and platforms” is a nod to the made up nonsense by a bunch of conservative trolls pretending that there’s some legal distinction between a publisher and a platform. There isn’t. There isn’t a legal grey area. The law is quite clear and the courts have had no problem in understanding the issues. It’s just a bunch of trolls — usually the folks spreading misinformation — who like to pretend there’s some grey area.

In the details to this plan, Yang dumps on Section 230, because of course he does:

Section 230 of the Communications Decency Act14 absolves platforms from all responsibility for any content published on them. However, given the role of recommendation algorithms?which push negative, polarizing, and false content to maximize engagement?there needs to be some accountability.

That “14” actually is a footnote to the EFF’s page about 230 that debunks Yang’s blatantly false claim that Section 230 “absolves platforms from all responsibility for any content published on them.” It does not and never has. It simply places the legal liability on whoever created the content. Which is a sensible and reasonable thing. And, even then, it only immunizes platforms from certain types of liability on certain types of content, not “any content published on them.”

Indeed, it’s once again ironic that someone pointing to Section 230 as being a problem because of misinformation being spread online… is spreading blatantly false information about Section 230. Yang’s actual “proposal” for 230 is also pretty much a 404 error:

Amend the Communications Decency Act to reflect the reality of the 21st century? that large tech companies are using tools to act as publishers without any of the responsibility.

What does that even mean? If anyone thinks that the large tech companies have no responsibility, they haven’t been paying attention and literally have no clue what they’re talking about. Apparently Yang has no clue what he’s talking about.

Adopt a 21st century approach to regulation that increases the knowledge and capacity of government while using new metrics to determine competitiveness and quickly identifies emerging tech in need of regulation.

Out of the four key “prongs” of his proposal, this is the only one that touches on an idea that makes sense. We’ve talked quite a lot about increasingly the knowledge and capacity of government, but the latter half of the prong should raise eyebrows. He acts as if any emerging area of tech is “in need of regulation.” How ’bout we use this new knowledge and capacity to actually explore if regulation is needed, before rushing in to focus in on regulating every new area of tech. Given how many emerging areas of innovation tend to be threatened or stifled by overregulation, the fact that Yang’s approach seems to be regulate everything as soon as it emerges, should be disqualifying.

And even here, nearly all the details are odd. He does support bringing back the Office of Technology Assessment, which is good, but then he goes into a weird and nonsensical idea of creating a “Department of Technology” and making it a Cabinet level agency. This smacks of the idiotic days in the early 2000s when every company would appoint a “Chief Digital Officer,” as if “digital” were its own silo like marketing or finance or human resources. As we explained back in the time where Yang was tutoring people to take their GMATs, thinking digitally isn’t a separate job function. These days it permeates all jobs, all government, and all society. Siloing it into a special new department makes no sense. Sure, get everyone in government more knowledgeable and tech literate, but that doesn’t require a whole new Department, which suggests only it needs to understand tech.

Hopefully we can no get everyone to admit that Yang is not quite the tech savvy “former tech exec” that the media likes to pretend he is. For what it’s worth, I sent Yang’s proposal to a close friend in the tech industry who had been a vocal Yang supporter, and got back a text saying “WTF? Not even one point is good. It’s like he doesn’t know tech at all.” Yup.

Filed Under: andrew yang, attention economy, data, intellectual property, privacy, section 230, tech policy

Techdirt Podcast Episode 232: Copying Is Not Theft

from the it-just-isn't dept

We’ve said it before (and even put it on a t-shirt) and we’ll say it again: copying is not theft, and intellectual “property” is anything but. In September, the Niskanen Center published an excellent paper exploring this issue and explaining why IP is a misnomer — and this week we’ve got one of the authors of that paper, Daniel Takash, to discuss in more detail why property is simply the wrong lens for looking at copyrights and patents.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Filed Under: copying, copyright, daniel takash, intellectual property, patents, podcast

Intellectual Property Is Neither Intellectual, Nor Property: Discuss

from the have-at-it dept

Well over a decade ago I tried to explain why things like copyright and patents (and especially trademarks) should not be considered “intellectual property,” and that focusing on the use of “property” helped to distort nearly every policy debate about those tools. This was especially true among the crowd who consider themselves “free market supporters” or, worse, “against government regulations and handouts.” It seemed odd to me that many people in that camp strongly supported both copyright and patents, mainly by pretending they were regular property, while ignoring that both copyrights and patents are literally centralized government regulations that involve handing a monopoly right to a private entity to prevent competition. But supporters seemed to be able to whitewash that, so long as they could insist that these things were “property”, contorting themselves into believing that these government handouts were somehow a part of the free market.

For years I got strong pushback from people when I argued that copyright and patents were not property — and a few years ago, I modified my position only slightly. I pointed out that the copyright or the patent itself can be considered property (that is, the “right” that is given out by the government), but not the underlying expression or invention that those rights protect. Indeed, these days I think so much of the confusion about the question of “property”, when it comes to copyright and patents, is that so many people (myself included at times) conflate the rights given by the government with the underlying expression or invention that those rights protect. In other words, the government-granted monopoly over a sound recording does have many aspects that are property-like. But the underlying song does not have many property-like aspects.

Either way, it’s great to see the Niskanen Center, a DC-think tank that continually does good work on a variety of subjects, has decided to try to re-climb that mountain to explain to “free market” and “property rights” supporters why “intellectual property is not property.” If you’ve been reading Techdirt for any length of time, most of the arguments won’t surprise you. However, it is a very thoughtful and detailed paper that is worth reading.

Imagine two farms sitting side by side in an otherwise virgin wilderness, each of them homesteaded by a husband-and-wife couple (let?s call them Fred and Wilma and Barney and Betty) ? two parcels of newly created private property appropriated from the commons by productive labor. One day, as Fred and Wilma are both working outside, they both notice Betty walking through the orchard of apple trees that Barney and she had planted some years back and which are now just ready to bear fruit for the first time. As Betty picks some of the first ripening apples to use in baking a pie, she sings an enchantingly lovely ballad that she and Barney had made up together back when they were courting. For the rest of the day Wilma can?t stop thinking about that beautiful song, while Fred can?t stop thinking about those trees full of delicious apples. That night Wilma sings the song to her baby daughter as a lullaby. Fred, meanwhile, sneaks over onto Barney and Betty?s property, picks a sack full of apples, tiptoes back to his property and proceeds to eat the lot of them, feeding the cores to his pigs before heading back inside.

Do you think that Fred and Wilma both did something wrong? Are they both thieves? Did both of them violate Barney and Betty?s rights? After all, Fred stole their apples, and Wilma ?stole? their song ? that is, she sang it to someone else without asking for permission. If you?re having trouble seeing Fred and Wilma?s actions as morally equivalent, it?s because of a fundamental difference between the two types of ?property? they took from Barney and Betty.

That fundamental difference is that Barney and Betty?s song, like all ideal objects, is a nonrivalrous good. In other words, one person?s use or consumption of it in no way diminishes the ability of others to use or consume it. As expressed with characteristic eloquence by Thomas Jefferson (who perhaps not coincidentally viewed patents and copyrights with skepticism), the ?peculiar character [of an idea] is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.?

By contrast, physical objects like apples are rivalrous: Once Fred and his pigs had finished devouring the ones Fred stole, they were gone and nobody else could consume them. Even when physical objects aren?t physically consumed by their owners ? think paintings or plots of land ? there is still unavoidable rivalry in using, enjoying, and disposing of them. The owner exercises that control over the owned object, and therefore nobody else does.

This is why it?s clear that Fred inflicted harm on his neighbors, since he took the fruit that they grew and now they don?t have it anymore. But Barney and Betty still have their song; the fact that Wilma sang it did nothing to prevent them from singing it anytime they want to. So, if Wilma did harm to Barney and Betty, what exactly is it?

The whole paper is really worth reading, and digs in on how and why people create, the nature of externalities in the creative process, and what actual data shows on the incentives of copyright and patents in driving innovation and creativity. The paper also digs deep on how excessive monopoly rights vastly hinder follow-on creativity and innovation (which is how most innovation and creativity come about in the first place).

In the case of copyright, excessive internalization is an impediment to the process of borrowing that is essential for the growth of creative works. While each artist may contribute new ideas to the cultural landscape, their contributions are based on the previous body of work. We all begin as consumers of ideas ? and then some of us go on to create new ones. Take the case of Star Wars. The Jedi, Darth Vader, and the Death Star were all new in 1977, but George Lucas relied heavily on older ideas to make them possible. It is common knowledge that Lucas borrowed from Joseph Campbell?s Hero With a Thousand Faces when crafting the hero?s journey of Luke Skywalker. But the borrowing didn?t stop there. The famous opening crawl is virtually identical to those at the beginning of episodes of Flash Gordon Conquers the Universe. Telling the story from the perspective of two lowly characters, the droids R2-D2 and C-3P0, was inspired by Kurosawa?s The Hidden Fortress ? something Lucas freely admits.

But while Lucas?s borrowing was permissible under copyright law, other borrowing is not, as current law gives rights holders control over broadly defined ?derivative works.? A number of Star Wars fan films have been shuttered or severely limited in their scope (mostly by prohibiting commercialization) due to threats of litigation by Disney. The genre of fan fiction is a legal gray area, with many tests to determine whether it constitutes fair use, including commercialization and how ?transformative? the work is. While the vast majority of these works will never amount to much, their existence is more tolerated than established as a clear-cut case of fair use. A more aggressively enforced copyright regime would almost certainly be the end of most fan fiction.

Thankfully, the paper also takes on the “fruits of our labor” view of both copyright and patents and why that doesn’t make much sense either.

The idea that people should be able to enjoy the fruits of their labor has clear intuitive appeal, but its invocation as a justification for stopping other people from making use of your ideas without your permission suffers a fatal difficulty: The argument proves far too much. Indeed, the problem goes beyond the widely understood ?negative space? of intellectual creations that stand outside of patent and copyright protection: scientific discoveries, fashion, comedy, etc. Given that every new business venture starts with an idea, why shouldn?t every first entrant in a new industry be able to claim a monopoly? Or, for that matter, why not every first entry in a geographic market? If someone has the bright idea that their hometown needs a Thai restaurant and succeeds in making a go of it, why shouldn?t she be able to prevent competitors from coming in to poach her good idea ? at least for a couple of decades? On the other hand, given that every new idea is in some way adapted from earlier ideas, why shouldn?t those first entrants in new industries and new markets be seen as ?thieves? and ?pirates? who are infringing on earlier ideas? Once you really start working through the implications, the whole argument collapses in a hopeless muddle.

The problem is this: The claim that enjoying the fruits of one?s intellectual labor entitles you to stop competitors has no inherent limiting principle, and thus the claim can be extended headlong into absurdity ? as indeed it frequently has been. Of course, one can impose limits on the claim, but those limits have to be based on other principles ? in particular, some sense of relative costs and benefits. But now we?re doing policy analysis and the case-specific comparison of costs and benefits, at which point the grandiose-sounding claim that patent and copyright law combat injustice shrivels and fades.

The paper then suggests some reforms for both copyright and patent law that seem quite reasonable. On copyright, they suggest reducing terms, requiring registration, limiting infringement to commercial exploitation, expanding fair use, narrowing derivative works, and ending anti-circumvention (a la DMCA 1201). These are all good suggestions, though the “commercial exploitation” one is one that sounds good but is often hard to implement, because what is and what is not “commercial exploitation” can be somewhat gray and fuzzy at times. But the intent here is sound.

On patents, the paper suggestions are to eliminate both software and business method patents, greatly tighten eligibility requirements, and no infringement in cases of independent invention. To me, as I’ve argued, the independent invention point is the most important. Indeed, I’ve argued that we should go further than just saying that independent invention is a defense against infringement. Instead, we should note that independent invention is a sign of obviousness, meaning not only that the second invention isn’t infringing, but that the initial patent itself should likely be invalid, as patents are only supposed to be granted if the idea is not obvious to those skilled in the art.

All in all, this is a great and thorough paper, especially for those who really want to insist that copyrights and patents should be treated like traditional property, and position themselves as supporters of “free markets.” I fully expect — as I’ve experienced in the past — that those people will not engage seriously with these arguments and will rage and scream about them, but it’s still important to make these points.

Filed Under: copyrights, intellectual property, non-rivalrous, patents, property, property rights, rivalrous, trademarks

Thinking Of Privacy As A Property Right Will End Badly

from the that's-not-how-privacy-works dept

We’ve talked for a while now about how we’re really bad at regulating privacy because most people don’t really understand privacy. People tend to think of it as “a thing.” But, it’s not. It’s a set of trade-offs that can change depending on who is involved, what the context is, and the terms of the trade-off. The example we’ve used many times is that of leaving your home to buy groceries. Doing so entails giving up some amount of privacy. Someone could see you. They might even see what’s in your shopping cart. But for most people, this trade-off is worth it. The “loss” of privacy here is minimal. The “damage” of someone seeing that you’re buying broccoli is not that big of a deal. But, for some people, the trade-off may be quite different. If you’re a movie star, for example, going into a grocery store may represent a huge burden and an impact on your privacy. Paparazzi may follow you around. Other customers may bug you. What you buy may be analyzed or mocked or worse. Other factors come into play as well, such as what it is that you’re buying. Vegetables might not be that big a deal. Other items may be a lot more revealing.

That may be a fairly simple view of things, but it applies in lots of cases. Lots of decisions we make involve basic trade-offs regarding privacy. And part of the calculation that we all implicitly make involves a fairly straightforward cost-benefit analysis. Is the value we get from doing x greater than the potential privacy violation? And, of course, this is often made more difficult by the “cost” being one in which somewhat opaque probabilities come into play. Beyond the potential “cost” of such “private” information being revealed, what is the probability that such a revelation will lead to greater costs? For example, someone going into a drug store to buy condoms may represent a slight loss in privacy — but if that person is doing so to have an affair, then the “cost” might be the probability that the person’s partner becomes aware of such a purchase.

The issue is that thinking of privacy as just “a thing” that must be “protected” often fails to take into account the various nuances of the trade-offs. It fails to account for the fact that different people in the same situations may value the different sides of the trade-off differently and may have entirely different beliefs about what is and what is not an acceptable trade-off.

Building on that, the real problem we have today concerning “privacy” is that we often don’t know enough about both sides of the trade-off equation. The concern or unease that some have over internet companies sucking up our data is that it’s not entirely clear (1) what the ultimate benefit is of that and (2) it’s very unclear what the costs are — or what the probability is that the costs will be extreme. There’s not much transparency and not much ability to have an accurate sense of the actual risks, and, therefore, we’re often making the trade-off decision somewhat blind. There are lots of people who — via their own expressed preferences in terms of what they actually do — seem to think that letting Facebook suck up all their surfing data is a worthwhile trade for staying in touch with family and friends. Some argue that they’re ignorant for doing so — and maybe that’s true. But part of the problem is that the costs are amorphous, at best, while the benefits to many seem worth it.

Still, the lack of transparency about what data is being collected, and how it’s being used, combined with the lack of control for the end users, creates a totally reasonable level of nervousness for some. The issue is that the cost might be super high. But we don’t know and we don’t really have any way to do anything about it if that turns out to be the case. That’s where most of the fear about social media’s impacts on privacy come from.

Given that there’s so much interest these days in “regulating” privacy, the models that people use to understand privacy can have a really big impact. Using the wrong model will lead to really bad regulations. And one of the worst ideas is unfortunately super popular: the idea of turning “privacy” into a quasi-intellectual property. Specifically trying to set it up as if it’s a “property” right with a price attached to it. Tragically, this model has a bunch of proponents when it comes to regulations. The NY Times recently had an excellent opinion piece by Sarah Jeong explaining why setting up privacy as a property right is a terrible idea. That NY Times opinion piece came out just a week or so after a similar (and even more thorough) article at Brookings by Cam Kerry and John Morris similarly explaining why data ownership is “the wrong approach” to protecting privacy.

As both pieces note, there are lots of regulatory attempts to put a property right and price on private info:

Some policymakers are taking such thinking to heart. Senator John Kennedy (R-LA) introduced a three-page bill, the ?Own Your Own Data Act of 2019,? which declares that ?each individual owns and has an exclusive property right in the data that individual generates on the internet? and requires that social media companies obtain licenses to use this data. Senators Mark Warner (D-VA) and Josh Hawley (R-MO) are filing legislation to require Facebook, Google, and other large collectors of data to disclose the value of personal data they collect, although the bill would not require payments. In California, Governor Gavin Newsome wants to pursue a ?data dividend? designed to ?share in the wealth that is created from [people?s] data.?

But as the Kerry/Morris piece notes, treating private data in this manner runs into all sorts of problems — including conflicting with the First Amendment:

The trouble is, it?s not your data; it?s not their data either. Treating data like it is property fails to recognize either the value that varieties of personal information serve or the abiding interest that individuals have in their personal information even if they choose to ?sell? it. Data is not a commodity. It is information. Any system of information rights?whether patents, copyrights, and other intellectual property, or privacy rights?presents some tension with strong interest in the free flow of information that is reflected by the First Amendment. Our personal information is in demand precisely because it has value to others and to society across a myriad of uses.

Treating personal information as property to be licensed or sold may induce people to trade away their privacy rights for very little value while injecting enormous friction into free flow of information. The better way to strengthen privacy is to ensure that individual privacy interests are respected as personal information flows to desirable uses, not to reduce personal data to a commodity.

Jeong’s piece, similarly, highlights just a few of the problems of treating privacy as a property right:

Legally vesting ownership in data isn?t a new idea. It?s often been kicked around as a way to strengthen privacy. But the entire analogy of owning data, like owning a house or a car, falls apart with a little scrutiny.

A property right is alienable ? once you sell your house, it?s gone. But the most fundamental human rights are inalienable, often because the rights become meaningless once they are alienable. What?s the point of life and liberty if you can sell them?

Jeong also makes an important point: that your “private” data may actually be someone else’s private data as well, raising some significant complications:

Your location data can give away the whereabouts of your spouse. Your health records give away information about your biological children. If you sell your genetic privacy, are your parents entitled to a percentage?

Do you need to get joint approval with your spouse to sell location info? Do you need permission of your not-yet-born descendants to sell your genetic info?

The Kerry/Morris piece also highlights how useful it is, in general, for certain information to be shared, sans pricing, for society as a whole. Putting a price on all data would put an unnecessary bit of friction into fairly basic exchanges that no one should have an issue with (in my discussion above, those would be cases where the “cost” is very low, and the benefit much higher). Switching everything to a commodity/property model would come with pretty significant costs, however. And many of them would do little to actually protect “privacy.”

Basing privacy protection on property systems, on the other hand, would reduce privacy to a commodity, double down on a transactional model based on consumer choice, and be enormously complicated to implement. The current notice-and-choice model is failing because it is effectively impossible for users to understand either how their data will be used or the accompanying privacy risks, especially in the constant flow of online engagement in today?s connected world. The result is that people click past privacy notices through to the information or service they want.

Moreover, many of these consumers already agree to provide personal information in exchange for the perception a benefit. It is hard to imagine people will burrow deeper into privacy disclosures or pause at clicking through to get at communications or transactions simply because they are offered what may amount to a few pennies. It is far from clear that in a market for data, the ordinary user would come out on top?either in relation to economic benefits or privacy harms. On the contrary, by licensing the use of their information in exchange for monetary consideration, they may be worse off than under the current notice-and-choice regime.

Or as Jeong notes, such a system might simply encourage people — especially the most vulnerable — to effectively “sell” their privacy.

But the American Civil Liberties Union called the bill a Trojan horse. The Electronic Frontier Foundation said it would ?incentivize people to give up their fundamental right to privacy and exacerbate inequality by specifically encouraging vulnerable lower-income people to pour more personal information into an industry that exploits and discriminates against them.?

And for what? As Kerry/Morris note: the “value” of any individual’s private data is almost certainly quite low (which actually is reflective of the legitimately low “risk” associated with that data being revealed):

Indeed, the uncertainties of valuating any one individual?s data suggest that individuals will receive little payment. Estimates vary but

The Financial Times has a calculator that one of us (Kerry) ran for his profile. The default value is 0.007,butasawell−to−doprofessionalwhotravelsalot,thevalueoftheKerrydatawasestimatedas0.007, but as a well-to-do professional who travels a lot, the value of the Kerry data was estimated as 0.007,butasawell−to−doprofessionalwhotravelsalot,thevalueoftheKerrydatawasestimatedas1.78. If pricing is set by service providers, then the resulting system is likely to end up being very similar to the current ?take it or leave it? outcomes that are common under notice and choice. If pricing is set by consumers or through negotiation, the complexity of the service-user interactions would be even greater. And this new complexity would likely slow users? access to information and services that they want?and simply turn ?click fatigue? into ?negotiation fatigue.?

Sure, governments could set the price, but does anyone think they will do so in a manner that makes any sense? The Kerry/Morris piece also notes that the government setting a price for our data likely would run afoul of the First Amendment based on the Sorrell v. IMS Health ruling, which ruled a Vermont law unconstitutional for barring data mining and pharma firms from being able to buy up prescription data.

And that’s not even getting into the question of multi-party data — such as e-commerce transactions:

Under an information-as-property regime, would both the purchaser and the retailer have property rights to information about the transaction? And in such a property regime, couldn?t the retailer simply make as a condition of sale that the purchaser must grant a license to the retailer to use the information for specified uses? And wouldn?t that simply lead to another form of the tyranny of fine print in which the purchaser who wants the convenience of an online purchase would be forced to cede rights to the retailer? It is unclear whether the information as property regime would in fact improve the current state of privacy.

There are plenty of legitimate reasons (and a few not-so-legitimate ones) to be concerned about the state of privacy today. But we’re going to create a lot more problems if the “solution” is to turn your data into a commodity under some sort of property rights regime.

And the fact is we’ve been down this dumb road before. Hell, we’ve talked about it pretty much since the beginning of Techdirt with the silly idea of treating infinitely copyable “content” as “property” under copyright law. That’s created a huge mess, especially for free speech, with the idea that expression can be owned and limited in some form or another. Indeed, many of the copyright debates over the past few decades concerning the internet are really representations of the ongoing struggle to recognize how a “content-as-property” regime under copyright law can possibly co-exist with a “global network for communicating and sharing content” world of the internet.

We won’t do anyone any favors (other than maybe some lawyers) by adding in another category of made up “property” around “privacy.” And, worst of all, it will do nothing to actually improve privacy outcomes for most people.

Filed Under: commodity, control, intellectual property, privacy, property right, trade-offs