Privacy, Pseudonymity, and Copyright

A lunch conversation during the Transparent Text symposium about transparency in social media (also a hot topic in the Ethics of Blogging panel) led me to watch the following presentation from Lawrence Lessig on “Privacy 2.0“:

Another topic in that conversation was pseudonymity. Someone pointed to a 2000 USENIX paper entitled “Can Pseudonymity Really Guarantee Privacy?” The challenges of implementing pseudonymity have, of course, received lots of attention in the past few years. The most notorious example is the AOL search data scandal, which made the front page of the New York Times. But there’s also the work co-authored by my friend Vitaly Shmatikov on de-anonymizing Netflix data. Indeed, some have expressed concern that the new Netflix competition is a privacy lawsuit waiting to happen.

Finally, danah boyd‘s master’s thesis on “faceted id/entity: managing representation in a digital world” also came up–and I recently discovered by way of Robert Scoble that she’ll be keynoting at SXSW next year. Now I feel even more proud that I convinced her to speak at the SIGIR Industry Track this year. But I digress.

What does any of this have to do with copyright? Watch Lessig’s presentation–it’s long, but I promise you it’s worthwhile and entertaining to boot. Besides, I’ve made it easy by embedding it for you! He makes an analogy–rather, he makes fair use of Jonathan Zittrain‘s analogy–between privacy rights and copyright.

The executive (and overgeneralized) summary is that both privacy-holders (“consumers”) and copyright-holders (“industry”) have complained that technology has undermined their rights, and both have sought out legal remedies. Consumers push back on industry, frustrated with legal strategies to enforce copyright at the expense of consumer freedom, preferring instead to let technology dictate policy; industry pushes back on consumers, frustrated with their legal strategies to enforce privacy rights at the expense of industry freedom, in this case preferring instead to let technology dictate policy. The analogy may not be perfect, but it is close enough to be compelling.

But I’d like to stretch the analogy further than Lessig and Zittrain to consider pseudonymity and derivative works. The pseudonymity challenge (e.g., the recent reports about Project Gaydar) remind us that privacy isn’t binary, and that we have to accept at least some loss of privacy if we are going to live in a social world. Similarly, provisions like fair use exist because copyright is an inherent trade-off between protecting creators’ rights and embracing the value of creation in a social context.

As I said, I find the Zittrain’s analogy and Lessig’s presentation compelling. While it may not answer any of society’s urgent questions about privacy and copyright, it may at least further the conversation. At the very least, I hope the topic is intellectually stimulating.

By Daniel Tunkelang

High-Class Consultant.