Frances S. Grodzinsky and Herman T. Tavani
This paper expands upon an earlier work (Grodzinsky and Tavani, 2005) in which we analyzed the implications of the Verizon v RIAA case for P2P Networks vis-à-vis concerns affecting personal privacy and intellectual property. In the present study, we revisit this case by analyzing the privacy implications in light of the theory of privacy as contextual integrity (Nissenbaum, 2004). We then analyze some implications for intellectual property by drawing some analogies from the ruling in the MGM Studios v. Grokster case, which, among other things, demonstrates that the debate over sharing copyrighted material in P2P systems has not been limited to copyrighted music files. In particular, we question whether the Verizon and Grokster cases advance the interests of copyright owners at the expense of preserving privacy for individual users? We also question whether the rulings in these two cases threaten new technologies in order to advance the interest of copyright owners?
We begin by providing some background information in the Verizon and MGM cases, including the timeline in each. Whereas the appeals process in the Verizon case can arguably be interpreted as favoring the privacy rights of individual users, we believe that the US Supreme Court in the MGM appeals tended to side with property right holders. However, we also show how the Court’s ruling does not necessarily threaten innovative technologies such as P2P systems, despite the efforts of some property right holders to eliminate P2P systems altogether.
These cases demonstrate that there are ethical challenges that affect privacy and property. The conflict between privacy and property rights in cyberspace can be understood as a tension involving “access and control” (Tavani, 2004, 2007). Whereas property-rights advocates argue for greater control over information they view to be proprietary (thereby restricting access to that information by ordinary persons), privacy advocates argue for individuals having greater control over their own personal information (thus restricting access to that information by entrepreneurs). In examining property-related interests in these two cases, we consider three newer models for distributing digital media: iTunes, On Demand Distribution (OD2), and Streaming media. We examine whether any of these models, as well as an earlier model advanced by Litman (2003), can help us to resolve property disputes while at the same time preserving individual freedom in cyberspace, including personal privacy. In addition, our discussion of property rights will include an examination of the implications of Digital Rights Management (DRM) for personal privacy, as guaranteed by the fair use clause of the Copyright Act of 1976. We will show how DRM has become an obstacle to private use because it limits the user’s freedom, by allowing private interests to define the parameters of the law.
We then show why a context-based theory of privacy such Nissenabaum’s can help us to understand the issues at stake for individual privacy in this debate. A central tenet of her theory is that there are “no arenas of life not governed by norms of information flow” – i.e., no information or spheres of life for which “anything goes.” As Nissenbaum (2004, 128) states: “Almost everything – things that we do, events that occur, transactions that take place – happens in a context…” In her scheme, contexts include “spheres of life” such as education, politics, the marketplace, and so forth. Two core principles of Nissenbaum’s framework are:
the activities people engage in take place in a “plurality of realms” (i.e., spheres or contexts);
each realm has a distinct set of norms that govern its aspects.
These norms both shape and limit or restrict our roles, behavior, and expectations by governing the flow of personal information in a given context. Nissenbaum’s theory requires that the gathering and distribution of information must satisfy norms that (a) are appropriate to a particular context, and (b) govern the distribution of information for that context. Thus, there are two distinct types of norms:
Norms of Appropriateness, which determine whether a given type of personal information is either appropriate or inappropriate to divulge within a particular context.
Norms of Distribution, which restrict the flow of information within and across contexts.
In Nissenbaum’s scheme, a violation of privacy occurs when either norms of distribution or norms of appropriateness have been “breached.” Both types of norms must be “respected” to maintain the contextual integrity of the flow of personal information. As in the case of Moor’s privacy theory, which appeals to the notion of a “situation” (Moor, 2004), Nissenbaum’s theory is context-based. Both theories show why it is mainly the nature of the context in which information flows, not the nature of the information itself that determines whether normative protection is needed. Rather than focusing on the nature of the information included in a P2P situation – i.e., asking whether or not it should be viewed as private – we can ask whether P2P situations or contexts (in general) deserve protection as “normatively private situations” (Moor) or contexts (Nissenbaum).
Appealing primarily to Nissenbaum’s theory of privacy as contextual integrity, we will argue that it is inappropriate for the RIAA to have access to personal information that belongs to a P2P context. We conclude by showing that if we accept Nissenbaum’s context-based approach to the controversy, in conjunction with one or more of the distribution models, that we also examine, we can both protect privacy interests of individuals in P2P systems and help ensure that property owners’ interests are also reasonably preserved.
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