Intellectual Property, Privacy and the Parallax View

Even if intellectual property and privacy did not necessarily begin at opposite ends of the legal policy spectrum, for several centuries at least, they had relatively little relationship to one another. With the exception of trade secrets, intellectual property in general, and copyright in particular, focused largely on regulating and encouraging acts of creation, communication and dissemination. To the extent privacy considerations intervened, it was primarily to shield authors’ identities from the embarrassment of disclosure or from the legal effects of censorship. The development of digital communication has irrevocably altered this relationship. While authors may still seek the benefits of anonymity, demands for privacy have exploded. Now the internet equivalent of readers – end users – also seek anonymity. The anonymity they seek covers such diverse acts as posting, retrieving, pinning and even searching for third party works. The past decade has witnessed increasing efforts to balance the communication goals of copyright with the burgeoning demands for anonymity in the digital environment. Such conflicts have been described as posing a potentially insolvable “conundrum,” particularly when technology enters the mix. Focusing on the apparently contradictory goals of copyright protection and end user anonymity has led to a perception that privacy and copyright policies serve increasingly contradictory, irreconcilable purposes. Efforts to craft new norms that balance access and enforcement policies only appear to further exacerbate the purportedly conflicting goals of copyright and privacy laws. The result is the continued splintering of legal modalities into an increasing array of disparate solutions at the domestic and international level. These disparate solutions to the copyright/privacy “conundrum” are most clearly demonstrated in the present responses of the United States and the European Union to the issue of end user identity disclosure and monitoring in cases of alleged digital copyright infringement. Such alleged infringements range from P2P file trading, to unauthorized streaming; from social media to rogue websites. They are almost as varied as the works subject to such unauthorized uses. On initial examination, the splintered responses of the United States and the EU to demands for a new balance between privacy and copyright seems emblematic of cultural, ethical, and legal differences between them. Creating new normative values that strike an appropriate balance between communication and anonymity in the face of these differences appears an impossible task. Yet differences can be deceiving. Instead of new policy norms, we need a better-calibrated device to measure more accurately the true scope and depth of purported policy conflicts and the “conundrums” they create. Using the impact of the Parallax View on 18th Century attempts to measure the transit of Venus as a paradigm, I contend that the differences we perceive in US and EU efforts to balance privacy and copyright are narrower than they appear. To the contrary, once normative conflicts have been recalibrated to take into consideration the Parallax View, new harmonized norms may finally be available to reduce the imbalance between communication and anonymity that present intellectual property and privacy regimes present. The creation of these new norms is critical if the promise of digital communication and the value of personal privacy are to continue to thrive into the remaining decades of the 21st Century.