IP is for Intellectual Property (and also for Invading Privacy)

Recent court rulings and new policies result in the term Intellectual Property becoming increasingly synonymous with Invading Privacy.

A common initialization in the news these days is IP, as an abbreviation for Intellectual Property — a misleading label for a grab-bag of legal policies covering copyrights, patents, and trademarks. Particularly since the Digital Millennium Copyright Act (DMCA) was signed into law toward the end of the Clinton Administration, there has been increasing debate over the appropriateness and ethicality of such laws, as well as their effectiveness at encouraging innovation — the supposed most important reason for such laws. Keeping pace with the debate, industries whose business models have historically been tightly tied to such laws have thrown their full economic, legal, and political weights behind efforts not only to maintain and enforce, but strengthen such laws.

Judging by the shift in public perception, from a general assumption that copyright somehow embodies a moral right akin to the Marxist assertion that laborers have a right to ownership of the means of production to growing questions and outright opposition to "intellectual property" laws, it might look like the anti-IP crowd is winning. Judging by the consistent narrowing of the doctrine of fair use in courts and the regular passage of copyright strengthening laws by legislatures around the world — particularly in the United States — it appears clear that the pro-IP crowd is winning even more thoroughly.

As industry lobby groups continue to encourage the tightening of "intellectual property" laws, we find a troubling trend developing: governmental policy toward enforcement is sacrificing privacy on the altar of copyright. This is borne out in the courts (See Rulings in a recent PS3 jailbreaking suit should worry you) and  elsewhere (see the March 2011 Administration's White Paper on Intellectual Property Enforcement Legislative Recommendations PDF), which points to a possible future where IP means not only "Intellectual Property", but also "Invading Privacy."

From the document:

The Administration recommends three legislative changes to give enforcement agencies the tools they need to combat infringement:

  1. Clarify that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony;
  2. Authorize DHS, and its component U.S. Customs and Border Protection (CBP), to share pre-seizure information about, and samples of, products and devices with rightholders to help DHS to determine whether the products are infringing or the devices are circumvention devices; and
  3. Give law enforcement authority to seek a wiretap for criminal copyright and trademark offenses.

Regardless of your thoughts on the legitimacy of copyright as a moral right, or its effectiveness as a means of encouraging innovation, this should raise red flags for anyone who cares about privacy. It gets worse in the immediately following paragraphs, where government is then empowered to share information it has gathered about potential copyright, patent, and trademark infringers with civilian organizations:

The Administration recommends two legislative changes to allow DHS to share information about enforcement activities with rightholders:

  1. Give DHS authority to notify rightholders that infringing goods have been excluded or seized pursuant to a U.S. International Trade Commission (ITC) order; and
  2. Give DHS authority to share information about, and samples of, circumvention devices with rightholders post-seizure.

The document identifies a number of other legislative recommendations made by the office of IP Enforcement Co-ordinator Victoria Espinel, then goes on to describe them all in more detail. At the same time, networking technologies necessary to the advancement of communication technologies and security are making such laws more and more difficult to enforce, prompting lobbyists and government officials to push for even more privacy-violating legislation. A vicious circle is born.


Chad Perrin is an IT consultant, developer, and freelance professional writer. He holds both Microsoft and CompTIA certifications and is a graduate of two IT industry trade schools.

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