09 June 2012

Privacy and Defamation

'The Interaction of Remedies for Defamation and Privacy (Sydney Law School Research Paper No. 12/14) by David Rolph indicates that
 There has been renewed interest in the introduction of a direct, comprehensive right to privacy in Australian law, with three law reform commissions recommending the enactment of a statutory cause of action for invasion of privacy. A comparatively neglected aspect of the proposed reforms is the interrelationship between defamation and privacy. The introduction of an enforceable right to privacy has the potential to subvert well-established principles of defamation law. This article examines in particular the availability of damages and interlocutory injunctions for defamation and privacy. It argues that damages for privacy should be capped but at a higher level than the cap on damages for defamation, reflecting the respective value Australian law should ascribe to the interests underlying these causes of action. It further argues that an interlocutory injunction should not be more readily available for invasion of privacy than for defamation. 
Rolph comments that
If plaintiffs are given the right to sue for invasion of privacy, which is properly understood as a dignitary interest, additional to the plaintiff‟s interest in his or her reputation, there arises the issue of what approach should be taken for the plaintiff to be able to obtain an interlocutory injunction for invasion of privacy. The issue of whether a plaintiff should be able to obtain an interlocutory injunction for invasion of privacy should not be considered in isolation; the impact on defamation law needs to be considered. If a plaintiff is able to obtain an interlocutory injunction for invasion of privacy, this may have a distorting effect on defamation law; it would provide an incentive for plaintiffs to recast claims previously brought as defamation claims as invasion of privacy claims, thereby subverting the restrictive approach to injunctive relief in defamation. 
This raises difficult issues of principle. On the one hand, an argument can be made that defamation turns upon a dichotomy of truth and falsity, whereas invasion of privacy is concerned not with these matters but merely with whether something is private or not. On this analysis, it might be argued that the plaintiff should be able to elect whether to frame his or her claim in defamation or invasion of privacy, or both. On the other hand, historically the common law has treated defamation as the proper cause of action for false and derogatory statements. The concept of false privacy is a vexed one. The common law would have developed differently if the equitable cause of action for breach of confidence – the equitable cause of action which has been adapted to provide direct privacy protection in the United Kingdom – had extended to false information. United Kingdom courts are currently struggling with the concept of "false privacy" and its implications for the interaction of remedies for defamation and invasion of privacy. 
Yet none of the law reform proposals consider the interaction between defamation and privacy. In particular, this important, practical issue is given no consideration. If a plaintiff was now able to elect to claim either defamation or invasion of privacy, he or she would have a real incentive to plead invasion of privacy in order to obtain an injunction that would not ordinarily be available in defamation. This would be a change to a long-standing practice. Its implications need to be considered before any reform is undertaken. One solution might be to have an award of damages as the principal remedy for invasion of privacy, just as it is for defamation, with an interlocutory injunction as possible but exceptional. If a new cause of action for invasion of privacy mirrored the position in relation to injunctive relief for defamation, there would be no incentive for plaintiffs to frame claims as invasions of privacy which would previously have been pleaded as defamation. 
It might be argued that once a plaintiff‟s privacy has been invaded, it can never be restored. This is equally true of defamation. Although, in principle, a favourable defamation verdict acts to vindicate the plaintiff's reputation, the reality is, in many cases, very different. An award of damages for defamation is usually granted many years after the publication ofdefamatory matter – if a plaintiff does not settle first or if a plaintiff elects to sue in the first place. The fact of the defamation trial, with its repetition of the defamatory allegations, becomes part of the plaintiff‟s reputation, so that the sting of the defamation never completely dissipates. There is a disparity between the rhetoric and the reality of defamation law. Thus, reputation and privacy should not be treated so differently for the purposes of injunctive relief. If a plaintiff were aware that his or her privacy was to be invaded, he or she would probably want to obtain an injunction to restrain it. If a plaintiff were aware that his or her reputation was to be damaged, he or she would probably also want an injunction but the common law, as a matter of principle, has consistently refused to grant it. The common law has taken the view that the appropriate balance of interests between plaintiffs and defendants is that defendants may exercise freedom of expression but that if, in their exercise, they defame, they are liable for the consequences. If a cause of action for invasion of privacy is to be developed, it should not be allowed to disturb the balance of interests the law has struck in relation to defamation, at least not without proper consideration.

08 June 2012

Writing Heads

'The Evolution of Normative Legal Scholarship: An Example from Copyright Discourse' by Patrick Goold of the International Max Planck Research School for Competition and Innovation argues that
 Legal scholarship’s central function is to provide normative advice about the law. However, some academics have challenged the importance of such scholarship. Pierre Schlag argues that this function of legal scholarship is 'unraveling' because judges and legislators do not listen to academic opinions. This unraveling would seem to be present in the field of copyright law where numerous instances suggest that normative legal scholarship is ignored. However, copyright scholarship has evolved to overcome this problem. Today the most influential copyright scholarship comes not in law reviews or similar traditional academic outlets, but through publicly oriented books and social media. Rather than aim normative advice to lawmakers, scholars give their advice to the public generally. The public then hold the lawmakers accountable for enacting bad laws. In this way, academics are retaining their position as normative advice givers.
Cue sound of celebration, presumably.

Goold comments that -
One important reason for this public engagement is the work of copyright scholars. In a world where traditional academic opinion often falls on deaf ears, frequently copyright academics write directly for this public audience. 
The clearest example is that of Lawrence Lessig. Lessig is a professor of law at Harvard. In addition, he is the founder of Creative Commons, a former board member of the EFF, and arguably the figurehead of the Free Culture Movement. And, particularly in relation to the latter movement, it is interesting to note how Lessig has helped to develop this public engagement. As a legal academic and professor at Harvard, one would expect to see a long list of lengthy, footnote laden articles (perhaps fairly describable as esoteric and arcane) published in traditional legal journals and law reviews. These articles would make normative statements about the correct shape of the law. The target audience would be legislators and judges. This would be consistent with Rubin’s view of legal scholarship. That is what one would expect but not what one will find. Although some such works still exist, Lessig has conveyed his most influential legal thoughts by writing books designed for the general public to read. 
Some of Lessig’s most prominent works on copyright law are: Code, The Future of Ideas, Free Culture, and Remix. Most of his books are free for download under creative commons licenses as eBooks. Alternatively, they can be found in paper back at most book retailers. The central message of all these books is that copyright law is too restrictive and has negative effects on the creation and spread of creative works in society. And much of the Free Culture Movement is founded directly upon these ideas. The movement employs the Lessig-coined phrase “Free Culture” as its central theme and uses much of Lessig’s terminology and arguments. In doing so, these publications have given shape to the entire copyright discourse in the digital age. 
Lessig’s scholarly strategy has not stopped at writing books. He has adopted other innovative ways of distributing his advice. His use of television and film is one such example. Lessig appeared and discussed his ideas in popular television shows such as The West Wing, The Colbert Report and in popular documentaries such as RiP: A Remix Manifesto. In addition Lessig employs a private blog, a twitter feed, and a wiki (a website that allows the creation and editing of any number of interlinked web pages via a web browser using some simple tools) to distribute his ideas. He is also a frequent blogger on various other sites, such as the influential news-blog The Huffington Post
When one looks at Lessig’s work, one sees a legal scholar that has had a strong impact on how society views copyright policy. But rather than speak to lawmakers, who seem unlikely to listen, he has addressed his advice to the public generally. And Lessig is not alone in this process. While he is perhaps the clearest example, numerous other copyright scholars have also changed their target audience and distribution methods. In the footsteps of Lessig, well-established academics have with increasing frequency produced copyright literature for the general masses. This essay mentioned William Patry above. In addition to writing one of the leading copyright treatises, Patry has produced two popular book entitled Moral Panics and the Copyright Wars and How to Fix Copyright. In the former Patry discusses how copyright expansionists have resorted to metaphors that demonize copyright infringers just as is often the case with moral panics. And in the latter, Patry discusses the interplay between copyright law and technology. Neil Netanel, professor of law at UCLA law school, published Copyright’s Paradox. This work details the complicated relationship between copyright law and free speech. Adrian Johns, professor of History at the University of Chicago has produced Piracy: The Intellectual Property Wars from Gutenberg to Gates. This is an historical account of the term copyright “piracy.” And there are many more examples of these books. It would take too much time to detail them all here. Needless to say, these books are relatively cheap and they are distributed to the public in the same manner that other public books are. They can be found online at Amazon.com or a local bookstore. Many are even downloadable as e-books to facilitate the new generation of technology savvy digital-book readers such as the Kindle. In addition, these professors also employ the use of social media. This often comes in the form of blogs, some of which are individually run while others chose to contribute to collaborative blogs such as the Huffington Post. Many use Twitter as well. By doing so, these scholars distribute their normative legal suggestions directly to the general public, rather than to judges and legislators; they then rely on the public to demand that good laws be created in the routine democratic fashion, as has happened in the ACTA and SOPA/PIPA controversies.

07 June 2012

Logging Webmail

The New Zealand Privacy Commissioner has released a new case note under the Privacy Act 1993 (NZ) regarding surveillance that went beyond the workplace.

Case note 229558 [2012] NZ PrivCmr 1 deals with an unidentified employer's use of monitoring software to collect personal information.

As part of "an employment investigation" the employer collected "personal information" from a man's work computer. That information included email sent to and from the work computer, along with key stroke logging for the computer. Importantly the employer used information collected from that logging to access the man's personal web-mail account and copy several emails. The man complained about the information collection.

The Commissioner considered that separate issues were raised for the two different types of information collected; information collected directly from the work computer and information collected from the man's personal email account.

The collection of information directly from the work computer complied with the Privacy Act because the employer in both the employment agreement and employee manual had clearly set out that work computers would be subject to monitoring.

Use of keylogging to access 'external' information "raised issues under principle 3 of the Privacy Act". 

The Commissioner commented that -
Principle 3(1) sets out that where an agency collects information from an individual, the agency must take such steps which are, in the circumstances, reasonable to ensure that the individual is aware of a number of things, including the fact that information is being collected. The policies set out in the agreement and manual were not explicit enough to make staff aware that such detailed information was being collected. On this basis we considered that the employer had breached principle 3 in collecting key stroke information. 
The Commissioner understandably had concerns regarding use of keylogging to obtain the man's webmail password and thence access his  personal email account -
We considered this raised issues under principles 1, 3 and 4 of the Privacy Act. 
Principle 1 
Principle 1 sets out that agencies must not collect personal information unless it's for a lawful purpose connected with the functions or activities of the agency, and collection is necessary for that purpose. When the employer accessed the man's personal email account, it was able to obtain information in relation to a significant number of emails sent over a period of several years. This went well beyond any information that may have been relevant to the employment investigation. We formed the view that the employer had breached principle 1, because the collection was unnecessary and disproportionate to the employer's needs. 
Principle 3 
We were also satisfied that the employer's policies were not explicit enough to make an employee aware that if they entered a password into the computer, the employer would be able to use this information to collect further information not held on the work computer. We formed the view that this also breached principle 3. 
Principle 4 
Principle 4 requires that personal information shall not be collected by unlawful means, or means which, given the circumstances, are unfair or unreasonably intrusive. Principle 4 is concerned with the method of collection. We considered that an individual's personal email account attracts a high expectation of privacy and it would require exceptional circumstances to justify an employer directly accessing it. In this case we did not consider there were exceptional circumstances, and so this method of collection was unreasonably intrusive and in breach of principle 4. 
The outcome was that the employer and employee "attended mediation, were able to reach a settlement, and the complaint was closed".

Unfortunately there is no indication of the size of that settlement, which might simply have been an apology by the employer and a promise to be good in future. That's the charm of mediation - no washing of dirty linen in public - and its disadvantage from a public policy perspective, ie observers do not get to see how the problem was solved and thus lack a benchmark for future action.

06 June 2012


'A Constitutional Solution for Internet Governance' by Rolf Weber and R. Shawn Gunnarson (forthcoming in Columbia Science and Technology Law Review) argues that -
 Internet governance has long been troubled by an unresolved problem. Its dominant organization, the Internet Corporation for Assigned Numbers (ICANN), suffers from inadequate accountability. ICANN holds the exclusive authority to manage the Domain Name System (DNS) that enables the Internet to function as a global network, and that authority is exercised by a Board of Directors whose powers are virtually unconstrained. ICANN’s exercise of unconstrained power over the Internet DNS is associated with a conspicuous gap between the accountability ICANN needs and the accountability it delivers. ICANN needs sufficient accountability, at least, to honor its written commitments and to satisfy its stakeholders’ expectations. Unfortunately, ICANN’s performance falls short in both regards. 
This article proposes to resolve ICANN’s longstanding predicament by describing a strategy to strengthen its accountability from within. Because its accountability gap arises from the absence of any mechanism binding the ICANN Board to act within its authority and consistent with its commitments, ICANN should adopt a standard of accountability that holds its Board answerable through procedures independent of it and binding on it. The Board’s unconstrained powers present the issue of power beyond right, the quintessential problem for constitutional law. For that reason, traditional principles of constitutional government offer a promising means of placing the Board’s powers under effective control. The article concludes that a written charter enumerating and separating the Board’s powers, a declaration of stakeholder rights, and an independent tribunal with the authority to issue decisions binding on the ICANN Board should be adopted through a ratification process that includes representatives from every sector of ICANN’s global stakeholder community.

05 June 2012


From 10(1) TripleC: Open Access Journal for a Global Sustainable Information Society (2012) - one of the more modish journals dealing with the 'digital environment', comes 'Persona Rights for User-Generated Content: A Normative Framework for Privacy and Intellectual Property Regulation' by Tamara Shepherd and 'Atoms Want to Be Free Too! Expanding the Critique of Intellectual Property to Physical Goods' by Johan Söderberg & Adel Daoud.

Shepherd states that -
 This article introduces the term “persona rights” as a normative conceptual framework for analyzing the language of regulatory debates around privacy and intellectual property online, mainly from a Canadian perspective. In using the concept of persona rights to interrogate and critique the current limitations of regulatory discourses in protecting user rights online, the legal implications of persona rights law are translated into more conceptual terms. As a normative framework, persona rights is shown to be useful in addressing the gaps in regulatory understandings of privacy and intellectual property – particularly in spaces for user-generated content (UGC) – and in suggesting how policy might be written to account for user rights to the integrity of identity in commercial UGC platforms. 
Following from the ideals of internet regulation in the public interest, and particularly from a Canadian point of view, this paper proposes “persona rights” as a framework for considering user rights in online spaces designed for individuals to contribute their own content, or user-generated content (UGC). As a legal concept, the term persona rights refers to an individual’s control over any commercial uses of her or his identity in social web platforms.1 It thus rests on the premise that individual web users should have recourse to legal and regulatory protection of their rights to the integrity and dignity of their personal identities online. With mandates to protect user-citizen rights, developed nations such as Canada, the U.S. and the UK have shown a growing interest in safe- guarding personal identity online, as it is continually defined through policy debates about privacy and intellectual property rights. This paper presents a rhetorical analysis of such debates in recent reports from the Canadian Radio-television Telecommunications Commission (CRTC), the U.S. Federal Trade Commission (FTC), the UK’s Ofcom and the international Organisation for Economic Co-operation and Development (OECD), framed through persona rights as a normative standard for identifying and addressing some critical gaps in regulatory understandings of privacy and intel- lectual property. The current moment of commercial, contract-based regulation of UGC platforms is interrogated here according to what the persona rights framework identifies as crucial issues of user rights and the integrity of identity in user-generated content. The definition of persona rights used in this paper follows from William McGeveran’s legal formulation, where he argues that online social marketing practices entail potential threats to user rights, which might be protected under persona rights law that “transcends the narrower focus of other paradigms on protecting information privacy or preventing misleading advertising” (2009, 1154). In addition to the perhaps more familiar understandings of how online social platforms capitalize on private personal information and users’ intellectual property, the persona rights rationale sees social networks as built on the premise of endorsement. Similar to celebrity endorsement, user endorsement – comprised of both users’ private personal and network information and their work in creating UGC – be subject to “two related but distinct legal claims: the tort of appropriation and the right of publicity” in U.S. law (McGeveran 2009, 1149). By protecting against unauthorized commercial uses of one’s identity (the tort of appropriation) and maintaining monopoly control over one’s own image (the right of publicity), these two legal instruments serve the function of recogniz- ing the integrity and dignity of personal identity, in light of commercial exploitation, as sanctioned by the state. 
Some limitations of persona rights law include the significant challenge of proving dignitary, as opposed to purely monetary, harm suffered from commercial abuses of persona rights. While the impact of dignitary harm on an individual basis might be too abstract or too small to prove; “compounded through the entire society, however, a pervasive loss of identity control could be troubling” (McGeveran 2009, 1154). In addition to the limitation of scale here, there are jurisdictional consid- erations to be made when it comes to any legal mode of rights protection. While in Canada, the tort of appropriation of personality represents an admissible legal claim to commercial uses of one’s image, the right of publicity is not recognized in the same way as it is in the U.S., where celebrities retain a monopoly over any uses of their image (Hamilton 2009, 213). Yet despite this complication to a direct Canadian translation of persona rights law, McGeveran’s idea is useful here primarily as a conceptual rather than strictly legal paradigm. The concept of persona rights contributes a unique and urgent normative framework for addressing the ways that social web platforms potentially encroach on rights pertaining to personal dignity and commercial value, articulated together as persona rights of privacy and intellectual property. 
This paper offers an examination of privacy and intellectual property as persona rights, miti- gated by the context of UGC on social web platforms. The term platform is important here; as Tarleton Gillespie contends, “Whatever possible tension there is between being a ‘platform’ for em- powering individual users and being a robust marketing ‘platform’ and being a ‘platform’ for major studio content is elided in the versatility of the term and the powerful appeal of the idea behind it” (2010, 358). So while social web platforms promise a level playing field for user creativity and ex- pression, they are also bound by commercial imperatives and proprietary cultural production. This context provides the backdrop against which to discuss the parameters of user rights in UGC, framed through the lens of persona rights. 
In what follows, I examine a group of regulatory reports in terms of how they articulate persona rights as part of emerging policy frameworks for UGC. Explicit discussion of Canadian new media regulation in terms of citizenship figures most prominently in recent reports from the federal regulatory body, the CRTC, in line with the organization’s mandate to “ensure that both the broadcasting and Telecommunications systems serve the Canadian public” (CRTC 2009). The Commission’s regulatory decisions are primarily delivered according to the Broadcasting Act and the Telecommu- nications Act, both of which face challenges from the ambivalent position of new technologies and practices, such as UGC. Recent CRTC reports, like Perspectives on Canadian Broadcasting in New Media (2008) and Navigating Convergence (2010), are intended to address these challenges, through dealing with a host of regulatory concerns about new media. Such concerns include policy issues around the persona rights of privacy and intellectual property, which in Canada are often influenced by regulatory trends in both the U.S. and the UK, as well as by research from the OECD. As such, recent reports, Protecting Consumers in the Next Tech-ade (FTC 2008), Social Networking: A Quantitative and Qualitative Research Report into Attitudes, Behaviours and Use (Ofcom 2008) and Participative Web and User-Created Content: Web 2.0, Wikis and Social Networking (OECD 2007) are discussed here alongside the Canadian examples. This set of documents tends to reflect and reinforce the distinctions between online privacy – control over the disclosure and integrity of personal information online – and intellectual property – control over the distribution of proprietary creative work – evidencing the need for a concept like persona rights that links privacy and intellectual property issues through the endorsement logic that subtends commercial UGC platforms. Persona rights thus offers the heuristic value of re-framing privacy and intellectual property as inextricable concerns, both in a commercial context and in the broader sense of online sociality as an element of contemporary citizenship. So while issues of privacy and intellectual property serve as key nodes to examine within the policy literature, they also invoke a broader identity rights perspective on practices of socialization, commerce and cultural production online. 
In discussing how persona rights might fit into these overarching ecologies of UGC, the paper’s first section discusses privacy as a persona right, leading into a discussion of endorsement as the key context for tying critical accounts of online privacy to those of intellectual property. In the second section, a discussion of intellectual property as a persona right highlights how the appropriation of users’ creativity toward promotional aims maps onto regulatory considerations of original and derivative works in copyright protection. By making these ties between normative ideals around privacy and intellectual property, the following examination of the persona rights concept points toward ways that privacy and intellectual property in commercial spaces should be protected by emergent legislation. As such, the urgency of regulatory protection of persona rights demands fur- ther inquiry into its implications as a normative framework for users’ rights online.
Söderberg & Adel Daoud argue that -
“Atoms are the new bits”. That is the latest buzz arising from the Californian trade press. What do we get when this dictum is sampled with the old rallying cry: “Information wants to be free”? We suggest that the predominant, bounded critique of intellectual property is thereby destabilised. Constitutive of that critique was the exceptionality attributed to information goods (bits) vis-a-vis tangible goods (atoms). It was thus intellectual property could be presented as something altogether different from private property. We recognise that this way of framing the issue has had tactical advantages, but contend that it has stood in the way of a deeper understanding of what intellectual property is. When the critique of proprietary software is expanded by an emerging movement for open hardware development, however, the boundary between intellectual property and property as such crumbles. This enables us to renew our critique of the political economy of information.
Indeed, we all want to be free - sans care, sans responsibility and sans inconvenience.

The authors conclude -
In the present article, we have questioned the self-evident appearance of what we elect to call the information exceptionalism hypothesis. This hypothesis underpins most of the critiques against intellectual property upheld both by activists and their sympathisers in the academy. The argument is compelling because it constructs a string of statement following from something, which seem- ingly is self-evidently true. Namely, the claim that information is substantially different from material resources. We have argued that the self-evident appearance of this claim does not simply rest on it being an accurate description of what information ”really is”. Rather, it owes partly to the fact that the information exceptionalism hypothesis has been cut out of the same cloth as the economic science. Some of the matter-of-factness, which permeates the economic discipline, has thus been endowed upon this hypothesis. It is thus the critics of intellectual property are able to exploit an anomaly in the paradigm of economic science. Crucially, economics is not a science like any other, but the one which all of us have been subjected to and formed by during the past few decades of neoliberal hegemony. A key postulate of this science lays down the omnipresence of scarcity. The critics of intellectual property have discovered the radical Other of this postulate, namely: the abundance of non-rival, informational goods. Hence, the rationale for intellectual property is overthrown from within the citadel of private property. The liturgy of free markets is now being sung in praise of the information commons. The irony of this reversal is easy to appreciate, as are the tactical advantages. The price to pay, however, is that the blind spots of the economic science are duly reproduced in the critique of intellectual property. Some high-profile champions of the information commons, which we have in mind, are Lawrence Lessig and Yochai Benkler, together with their innumerable followers. There are also some shining exceptions among the legal scholars, such as James Boyle. The latter has formulated a critique of intellectual property, which incorporates the historical insights of political economy and draws parallels to the first enclosure movement. His analysis starts in a broader critique of private property and commodification as moments in a historically developed, social whole. This has not, however, been the road travelled by most critics and campaigners against intellectual property. A lot of work has instead been put into policing the borders between intellectual property and private property. A case in point is when free software advocates distinguishes between free as in “free speech” and free as in “free beer”. The point being that free software is strictly about civil rights issues, while protestations over price and markets are exempted from the struggle against the intellectual property regime. We believe that this approach has exhausted itself. This claim can be illustrated with a quote from Paolo Virno, although uttered in a completely different context. Free beer has become indistinguishable from free speech, in: "the era in which language itself has been put to work, in which language itself has become wage labour (so much so that ’freedom of speech’ nowadays means no more and no less than the ’abolition of wage labor’)” (Virno 1996, 271). 
We wish to follow the trend, which Virno hints at in the quote above but we have chosen to start from a different point of departure. It was proposed that the boundary work of hackers, activists and academics campaigning against intellectual property is being destabilised due to the introduction of a new narrative element. Namely, the exclamation that, to put it in the jargon of the Californian ideology: “atoms are the new bits”. At the centre of articulating this new imaginary are the hobbyists building open source 3D printers, the Rep-rap project. Many of them are convinced that their work will result in an expanded conflict over intellectual property, soon to encompass physical objects too. In fact, the first cannonade has already been fired. In February 2011, a DMCA takedown notice was issued for printable 3D objects. The notice was sent to Thingiverse, a repository for 3D objects used by many hobbyists in the Rep-rap community. The individual designer making the complaint, Ulrich Schwanitz, protested that an object, which he had created, an impossible shape called a ”penrose triangle”, had been reverse-engineered and uploaded to Thingiverse. Eventually he dropped the charges and released his design in the public domain. Nevertheless, in the Rep-rap community and on the Thingiverse blog, this event was hailed as a first skirmish in the upcoming struggle over 3D designs and home printing. The expectation is that once a consumer market in 3D printers has been established, many industries will start to lobby for legal protections, just as the music and film-industries did in the late 1990s. 
Without necessarily endorsing the many claims made on the behalf of the Rep-rap project, we recognise its importance for introducing a new imaginary. This imaginary suggests that there can be no stable demarcation lines between commons (in which informational resources can circulate freely) and free markets (in which property ownership over tangible goods are duly respected), ultimately grounded in the nature of the resource in-itself. Hence, where to draw the line between the two will be decided in a test of strength between opposing forces. This is essentially a political struggle, although for most part it will be mediated through technological innovation. In fact, the opportunity has already been spotted by conservative think tanks. In a re-examination of the old debate about lighthouses and public goods, one economist has observed that light is now being replaced with radio signals as a means for assisting navigation. The latter technology is designed in such a way that rent can easily be extracted from the service. The writer rejoices: Due to technological change, there are no such things as natural public goods anymore. It is only institutional inertness, which holds back the relentless expansion and intensification of markets (Foldvary 2003). Indeed, with information technology, the granularity of private property can be made infinitely small. Examples hereof abound in the new markets, which have flourished on the Internet for some time. Infinite are the ways to parse up information and provide it on a pay-per basis. And atoms are the new bits. Herein lies the truth of the expanded conflict over intellectual property. It signals a future where goods and services in “meat-space” can be charged for with the same surgical precision, as is already the case on the Internet. From the perspective of the economist of tomorrow looking back at the present situation, it will appear as if the coarse way in which we are now being charged for our goods and services amounted to an endless long tail of market failures. The opportunity to close those failures, again and again and again, will drive the expansion of Digital Right Management systems to new areas. Intellectual property and traditional property converge into what might be called “augmented property”. In the up-coming conflict over augmented property, piracy will be generalised to every corner of society. And everywhere we will hear the battle cry: atoms want to be free too!

03 June 2012


Academics say the strangest things.

'What if we refuse to be citizens? A Manifesto for Vacating Civic Order' by Santiago López Petit in 10(3) Borderlands (2011) comments that
Today’s citizen is no longer a free person. Citizens are no longer free people who want to live in a free community. A political consciousness that is not taught, but rather conquered, has gradually disappeared. It could not have happened another way. Public space has become a street full of shops that never close, an ongoing television show in which an idiot tells us in detail why he separated from his wife. School, in turn, is not asked to promote a critical consciousness but to merely impart learning of ‘correct’ civic behaviors, variations of a pretense ‘education for citizenship’. Political struggles seem likewise to have disappeared from a world in which there are only diverse types of catastrophes (economic, environmental, natural, etc.). However, when politicians address us, when they pay lip service to calls of participation, they keep calling us citizens. Why? Why is this word, which little by little has been emptied of all political force, still in use? 
Perhaps because there's value in working within the liberal democratic state, contrary to the author's vision that we should just walk off in a huff with a copy of Foucault For Dummies under our arms.

López Petit goes on conclude
What if we refuse to be citizens? Actually, there are not two ways of emptying the figure of the citizen. Construction and destruction are not opposite poles. In every attempt to build something there is destruction, and vice versa. Only from the standpoint of power is it possible to distinguish between who is violent and who is nonviolent. To refuse to be citizens is to set in motion the power (potencia) of emptying and to operate according to a transversal strategy. It is to refuse to be what reality forces us to be, that is, to refuse to be citizens - there is no need to recall that citizen is today the authentic name for the unit of mobilization - consists in drawing a line between what one wants to live and what one is willing to live. Transversality, on the other hand, means that there is no longer a privileged battlefront of struggle (for example: the sphere of work), but that the combat is aimed against reality itself conceived as a continuum of struggles. When life is a battlefront it is no longer useful to consider partial approaches. The aim should always be the same: to puncture reality in order to breathe. For that to happen, we must begin to open no-man’s-lands. The no man’s lands that, stuck in the war front, are the place to replenish in order to attack again this damn videogame we are in. As we empty the figure of the citizen, the force of anonymity that lives inside each of us can emerge. That force escapes because nobody knows its real force. That force is irreducible because it is the force of the desire to live. Exit. Exit everything while already building a world between us. Exiting everything but without killing each other. Exit, also, the very idea of emptying defended by this manifesto. What if we refuse to be citizens? 
What, on the other hand, if we simply stop being so silly and give the Virilio and Žižek a break.