Privacy vs. Piracy
125 Pages Posted: 12 May 2005
A massive change to cyberspace is set to happen. Instead of the relative anonymity that has characterized aspects of the online world, the most sacred areas of informational privacy are about to be invaded. This change in the nature of cyberspace is being driven by commercial interests, and in particular, by owners of intellectual property.
Curiously, both areas of law - privacy and intellectual property - face enormous challenges because of technology's ever-increasing pace of development. In this Article, I argue that the impending collision between the two areas of law is directly attributable to a deeper tension underscoring two major, and seemingly unrelated developments: a shift towards the commodification of personal information, and the technological explosion of file-sharing programs in cyberspace. These two events have combined to produce the beginning of a new type of surveillance that I call "piracy surveillance."
Although legislators and scholars have previously focused their attention on surveillance relating to employment, marketing, and national security, I argue that piracy surveillance is a distinct area that is incompletely theorized, technologically unbounded and, potentially, legally unrestrained.
While both areas of privacy and intellectual property law have enormously rich and well-developed areas of scholarly work and doctrinal support, their interactions, particularly across the Internet, have been mostly overlooked. Yet, the tensions between the two have been smoldering for some time, and today, the Internet has become the battleground for their resolution. Recent approaches by intellectual property owners seek to exacerbate these challenges by sacrificing one area of law for the other -by unilaterally stripping cyberspace of protections for informational privacy for the sake of unlimited control over copyright. The motivation behind these activities may lie in the protection of intellectual property, a laudable goal, but the end result sacrifices the most valuable aspects of cyberspace itself.
This paper was selected as the winning entry for the 2004 Yale Law School Cybercrime and Digital Law Enforcement Conference writing competition, sponsored by the Yale Law School Information Society Project and the Yale Journal of Law and Technology.
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