TOC What has Lord Macartney to do with Grokster? Your Turn

Data rights are a many sided topic, witness my lectures series. Yet the best analysis is always trumped by a simple message, fearlessly repeated. Give everyone clear title to one's personal data, in the instance, is the cornerstone on which to build both consistent legal theory and enforceable practice.

It will take time to understand all the consequences of such a universal message, time again to show how modern technology makes it feasible. If I have playfully alluded to the storming of the Bastille (e.g., 05/23/06 fillip) and the American Revolution (05/30/06 fillip), it is indeed because this message is revolutionary. Nobility today rests on the privileges of brand, not birth. While huddled masses are routinely treated with rough and ready contempt by advertisers, lawyers and governments alike, no amount of protection is enough for the rights of such lords as Adidas (*) and Vanna White(**). And lest true revolutions be misinterpreted, the goal is to let everyone enjoy the same privileges rather than suppress them.

So may fair readers forgive me my weakness for epics (see 05/02/06 fillip) despite Western society's present preference for low comedy. Our data rights hang in the balance and the stakes call for decisive battles, not derisive babbles. Clear messages have the advantage of focusing the mind on the decisive battles despite the apparent complexity of real life. Otherwise cut one head of the Hydra of Lerna and more grow in its place.

You may ask: so what has Lord Macartney to do with Grokster? Lord Macartney famously attempted in 1793 to convince the QianLong Emperor of China to open trade relations with Great Britain. His failure has been blamed on his lack of diplomacy but beyond this "formal pageant of events" (1), he met with a long term obstacle he could not easily overcome: the refusal to trade. Convinced of the superiority of its civilization, economically self-sufficient, able to enforce its interests, China saw no reason then to engage into globalization except on its own terms, the bringing of tributes by lesser nations. If we propose to establish clear title for data rights, it is because we believe fair markets benefit all participants. A similar short-sighted refusal to trade by influential participants would be the death of our proposals.

But the refusal to trade is not limited to the powers that be. It manifests itself as soon as property rights are ignored. For without such rights, one is dispensed from trading and simply gets what is for the taking. By freely copying songs, Grokster's users disdained indeed to trade with their authors, their interpreters and their representatives (2). Notice how the refusal to trade feeds upon itself. Many justified the runaway popularity of Grokster and its predecessor Napster by the prior behavior of record companies, whose embrace of the digital distribution of music in the nineties was as warm as the welcome the QianLong Emperor extended to Lord Macartney.

From this unifying perspective, the difference between the powerful and the weak is one of degree. While the weak are as prone to ignore the data rights of others as the powerful to ignore the opportunities offered by new markets, the powerful can also indulge in unlimited appropriation of individual profiles with a ruthlessness which puts Grokster to shame.

Does it mean the case of data rights is hopelessly idealistic? Many around me think so and their pervasive pessimism reminds me of the defeatism Sauron(3) was able to project on weaker minds: the forces of Evil have already won, people do not care about eprivacy, who can fight laziness? My answer is twofold.

First new technologies exist today to implement efficient data rights markets.

  • Truly confidential negotiation:
    tEC, by ePrio, shows that willing participants may seek and match mutual interests involving complex, objective criteria while preserving their eprivacy. One in particular is freed from the oxymoron of surrendering one's private data to a third party in order to benefit from eprivacy.
  • Digital context management:
    while current advances in digital right management have been perverted by content publishers into blind copy prevention, the same techniques can be mustered to convey, preserve and trace the context without which a piece of digital information loses most of its meaning: who is the author, the sender, the receiver, the nature of the contract between the parties involved. Combined with truly confidential negotiations, digital context management enables markets in personal data to become infinitely flexible and imaginative.
  • Internet payments:
    while recent history is littered with little known micropayment schemes, the popularity of Paypal and virtual economies show that Internet users are not adverse to trading when the circumstances are right.
Second, once established, markets have the virtue to turn the QianLong type of refusal to trade into a costly proposal long term as competitors surge ahead. Together with Lawrence Lessig (4), I deplore that current behavior by copyrights owner threaten the creativity fostered by the Internet. But is the correct answer the dismantling of data rights? If remixing is freed from all constraints, I am afraid credit reporting companies will be quick to claim they simply remix personal data, which indeed they do. When Lawrence Lessig further complains "there is no way to even license the right [to remix]", I think he implicitly points to a more lasting solution, i.e.:
  • ensure copyright law continue to evolve to account for the most recent use of digital information
  • encourage market creation by making every one of us a potential market participant
  • encourage competition and discourage restrictions to trade
Take for example the infamous lawsuit brought by Major League Baseball Advanced Media against CBC Distribution and Marketing Inc.(5) (see 05/23/06 fillip). I see nothing wrong for baseball players to be given the rights to their statistics. In fact I hope they get their rights recognized as I wish to be one day given back the rights to my own statistics, my stream of consumer transactions. But I object to the lawsuit as filed. In fact the proper public prosecutor should sue Major League Baseball Advanced Media for engaging in an illegal conspiracy to restrict trade and fix prices. Antitrust protection enjoyed by baseball owners should not extend to player statistics. Left to the forces of an appropriate market, individual players would be free to decide at what price to sell their rights to their personal statistics and innovative companies to buy these rights to package and market fantasy leagues to the public. No doubt more famous players would get better conditions than lesser ones. No doubt either the most famous players would rather trade than pass on such a business opportunity and popularity booster.

The previous example involves an exchange of money, one should also remember that copyright law recognizes non for profit usage of protected data under the heading of fair use. Were they so minded, lawyers and governments could put their ingenuity and authority into lifting the one obstacle to a beneficial revolution: the refusal to trade data rights by way of closed monopolies and outright theft.

Philippe Coueignoux

  • (*). Adidas is 15-love up in legal logo match, by Nikki Tait and Richard Milne (Financial Times) - June 8, 2006
  • (**) Star Power, by Drake Bennett (The Boston Globe) - June 4, 2006
    • (1) Fernand Braudel, in "The Mediterranean and the Mediterranean World in the Age of Philip II".
    • (2) for more information on the subject, see my lecture on copying, to be released.
    • (3) the Dark Lord in the Lord of the Rings, an epic by RR Tolkien, itself the object of a copyright battle in the US, according to Wikipedia.
    • (4) Creatives face a closed Net, by Lawrence Lessig (Financial Times) - December 2005
    • (5) Baseball Is a Game of Numbers But Whose Numbers Are They?, by Alan Schwarz (New York Times) - May, 2006
    November 15, 2007:
    ....... Major League Baseball lost its lawsuit against CBC in a fedearl appeals court, courtesy of Patti Waldmeir
    ....... Protect the facts that feed the fantasy, by Patti Waldmeir (Financial Times) - October 23, 2007
June 2006
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