PRIVACY VS. PIRACY

Yale Journal of Law and Technology, Dec 2005

A few years ago, it was fanciful to imagine a world where intellectual property owners - such as record companies, soft ware owners, and publishers - were capable of invading the most sacred areas of the home in order to track, deter, and control uses of their products. Yet, today, strategies of copyright enforcement have rapidly multiplied, each strategy more invasive than the last. This new surveillance exposes the paradoxical nature of the Internet: It offers both the consumer and creator a seemingly endless capacity for human expression - a virtual marketplace of ideas- alongside an insurmountable array of capacities for panoptic surveillance. As a result, the Internet both enables and silences speech, often simultaneously. This paradox, in turn, leads to the tension between privacy and intellectual property. Both areas of law face significant challenges because of technology's ever-increasing pace of development. Yet courts often exacerbate these challenges by sacrificing one area of law for the other, by eroding principles of informational privacy for the sake of unlimited control over intellectual property. Laws developed to address the problem of online piracy- in particular, the DMCA -have been unwittingly misplaced, inviting intellectual property owners to create private systems of copyright monitoring that I refer to as piracy surveillance. Piracy surveillance comprises extrajudicial methods of copyright enforcement that detect, deter, and control acts of consumer infringement. In the past, legislators and scholars have focused their attention on other, more visible methods of surveillance, namely those relating to employment, marketing, and national security. Piracy surveillance, however, represents an overlooked fourth area that is completely distinct from these other types, yet incompletely theorized, technologically unbounded, and, potentially, legally unrestrained. The goals of this Article are threefold: first, to trace the origins of piracy surveillance through recent jurisprudence involving copyright; second, to provide an analysis of the tradeoffs between public and private enforcement of copyright; and third, to suggest some ways in which the law can restore a balance between the protection of copyrigh t and civil liberties in cyberspace. This paper was selected as the winning entry for the 2004 Yale Law School Cybererime 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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PRIVACY VS. PIRACY

Yale Journal of Law and Technology Volume 7 Issue 1 Yale Journal of Law and Technology Article 7 2005 PRIVACY VS. PIRACY SONIA K. KATYAL Follow this and additional works at: https://digitalcommons.law.yale.edu/yjolt Part of the Computer Law Commons, Intellectual Property Law Commons, and the Science and Technology Law Commons Recommended Citation SONIA K. KATYAL, PRIVACY VS. PIRACY, 7 Yale J.L. & Tech (2005). Available at: https://digitalcommons.law.yale.edu/yjolt/vol7/iss1/7 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law and Technology by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . KATYAL: PRIVACY VS. PIRACY ARTICLE PRIVACY VS. PIRACY SONIA K. KATYAL* COMPETING FRAMEWORKS OF PRIVACY AND PROPERTY ...... 231 A. A SYMBIOTIC VIEW FROM REAL SPACE ........................... 233 B. A HIERARCHICAL VIEW FROM CYBERSPACE ................... 241 1. PLACE AND PANOPTICISM ......................................... 244 2. THE DIGITAL PERSONA AS PROPERTY ....................... 251 II. THE CONVERGENCE BETWEEN CONSUMER AND PIRACY SURVEILLANCE .................................................................... 263 A. ORIGINS OF PIRACY SURVEILLANCE ............................... 271 1. THE DIGITAL MILLENNIUM COPYRIGHT ACT AND PEERTO-PEER JURISPRUDENCE ......................................... 271 2. THE LEGACY OF VERIZON ......................................... 281 B. SPECTERS OF PIRACY SURVEILLANCE ............................. 290 1. M ONITORING ............................................................ 293 2. M ANAGEM ENT .......................................................... 304 3. INTERFERENCE ......................................................... 311 III. TOWARDS A REGIME OF PANOPTIC PUBLICATION ................. 316 A. PRIVACY AND AUTONOMY ............................................... 319 B. DUE PROCESS AND FREEDOM OF EXPRESSION ............... 328 IV. BALANCING PRIVATE AND PUBLIC ENFORCEMENT .............. 335 V. C ON CLU SION ....................................................................... 345 I. This article was jointly reviewed and edited by YALE JOURNAL OF LAW & TECHNOLOGY and INTERNATIONAL JOURNAL OF COMMUNICATIONS LAW & POLICY * Associate Professor, Fordham University School of Law. Another version of this paper, titled The New Surveillance, was published in the Case Western Law Review in Winter 2003. For helpful comments, the author thanks the participants at the Yale Cybercrime and Digital Law Enforcement Conference, as well as the editors of the Yale Journal of Law and Technology, along with Ann Bartow, Jonathan Barnett, Dan Capra, George Conk, Robin Feldman, Jill Fisch, Eric Goldman, Ellen Goodman, Hugh Hansen, Jennifer Higgins, Justin Hughes, Jacqueline Lipton, Robert Kaczorowski, Neal Katyal, Orin Kerr, Thomas Lee, Mark Lemley, Laura Heymann, Howard Knopf, Esther Lucero, Glynn Lunney, Peter Menell, Joel Reidenberg, Peter Siegelman, Damien Stolarz, Kim Taipale, Rebecca Tushnet, Polk Wagner, Fred Von Lohmann, Peter Yu, Tal Zarsky and Benjamin Zipursky. John Farmer, Allison Schilling, and Jayson Mallie all provided excellent research assistance. Published by Yale Law School Legal Scholarship Repository, 2005 1 Yale Journal of Law and Technology, Vol. 7 [2005], Iss. 1, Art. 7 KATYAL PRIVACY VS. PIRACY 223 PRIVACY VS. PIRACY SONIA K. KATYAL A few years ago, it was fanciful to imagine a world where intellectual property owners - such as record companies, soft ware owners, and publishers- were capable of invading the most sacred areas of the home in order to track, deter, and control uses of theirproducts. Yet, today, strategiesof copyright enforcement have rapidly multiplied, each strategy more invasive than the last. This new surveillance exposes the paradoxicalnature of the Internet: It offers both the consumer and creator a seemingly endless capacity for human expression - a virtual marketplace of ideas- alongside an insurmountablearrayof capacitiesfor panoptic surveillance. As a result, the Internet both enables and silences speech, often simultaneously. This paradox, in turn, leads to the tension between privacy and intellectual property. Both areas of law face significant challenges because of technology's ever-increasing pace of development. Yet courts often exacerbate these challenges by sacrificingone area of law for the other, by eroding principles of informational privacy for the sake of unlimited control over intellectual property. Laws developed to address the problem of online piracy- in particular,the DMCA -have been unwittingly misplaced, inviting intellectual property owners to create private systems of copyright monitoring that I refer to as piracy surveillance. Piracy surveillance comprises extrajudicial methods of copyright enforcement that detect, deter, and controlacts of consumer infringement. In the past, legislators and scholars have focused their attention on other, more visible methods of surveillance, namely those relatingto employment, marketing, and nationalsecurity. Piracy surveillance, however, represents an overlooked fourth area that is completely distinct from these other types, yet incompletely theorized, technologically unbounded, and, potentially, legally unrestrained. The goals of this Article are threefold: first, to trace the origins of piracy surveillance through recent jurisprudence involving copyright; second, to provide an analysis of the tradeoffs between public and private https://digitalcommons.law.yale.edu/yjolt/vol7/iss1/7 2 KATYAL: PRIVACY VS. PIRACY 224 YALE JOURNAL OF LAW & TECHNOLOGY 2004-2005 enforcement of copyright; and third, to suggest some ways in which the law can restore a balance between the protection of copyright and civil libertiesin cyberspace. This paper was selected as the winning entry for the 2004 Yale Law School Cybererime and Digital Law Enforcement Conference writing competition, sponsored by the Yale Law School Information Society Projectand the Yale Journalof Law and Technology. Nearly twenty years ago, in a casual footnote at the end of an important essay, renowned property scholar Charles Donahue drew a distinction between "property as a sword," and "property as a shield."' Donahue's distinction symbolized an important difference between two facets of the institution-as well as the execution-of property rights; suggesting that property rights can be used for both defensive and offensive purposes in relationships with third parties. Today, Donahue's distinction offers us a rich metaphor for understanding the transformation that has taken place in the digital era, particularly with respect to the relationship between intellectual property and privacy in cyberspace. As is now clear, the Internet is no longer a smooth-functioning patchwork of anonymous communication betwee (...truncated)


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SONIA K KATYAL. PRIVACY VS. PIRACY, Yale Journal of Law and Technology, 2005, pp. 7, Volume 7, Issue 1,