Journal of Intellectual Property Law & Practice Advance Access published online on November 4, 2009
Journal of Intellectual Property Law & Practice, doi:10.1093/jiplp/jpp169
The Authors (2009). Published by Oxford University Press. All rights reserved.
Re-asserting ‘privacy’ as a protectable interest: Warren and Brandeis confront the ‘First-Amendment Doomsday Machine’
Legal context: Advocates of an unregulated internet overlook that privacy rights themselves emanate from rights of personality that include rights to IP. In 1908, Warren and Brandeis derived the modern right of privacy from long-established rights such as copyright, breach of contract and implied trust, slander, and libel, all stemming from a common source in the right ‘to be let alone’, ie the right to an ‘inviolate personality’. Today privacy interests, as well as their predecessor-rights, are challenged by seemingly insurmountable practical obstacles.
Key points: The internet is like Dr Strangelove's Doomsday Machine because both imply finality. An operative principle endorsed heartily by advocates of an unregulated internet is that ‘the remedy for speech is more speech’. However, in the context of online dissemination, more speech is no mitigating factor—it effectively amplifies the harm. Once posted on the internet, information (good or bad) quickly circulates to all corners of the globe, mirrored on multiple third-party servers for efficient distribution, and can be accessed by anyone in the world at any time, well into the indefinite future.
Privacy rights, properly understood, are being eroded in the name of internet freedom. Users come to accept a view of the internet as today's equivalent of the Roman Empire's Coliseum, where any kind of spectacle, no matter how debased, violent, injurious, or unfair, is viewable without effective limit.
Practical significance: But as Warren and Brandeis realized, the common law is resourceful. Court-authorized self-help, technological ‘white hat’ hacking, specially crafted contract provisions, and recourse to effective remedies can be employed to re-establish important rights of personality on the internet, including IP rights.
Correspondence: * IP Attorneys at R. Kunstadt, P.C., New York, NY. Email: mail{at}rkunstadtpc.com.