Is any utterance without copyright? (What the Yahoo hacking tells us about modern IP)

A basic component of copyright is that it only applies to creations in a fixed medium. After revelations of cell-phone and webcam blanket surveillance, in addition to city-pervasive security camera usage, is any creation truly intangible?

Quick definition from the U.S. copyright office: “Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.” (emphasis added)

Pretty basic examples of being “fixed in a tangible medium” are being recorded as a photograph, an audio clip or a video. In the past few years, we’ve heard about our cellphones recording us without being turned on:

“The FBI’s use, in which cell phones’ microphones were remotely activated to record conversations (even with the phones turned off), probably had some bearing on Snowden’s request that journalists power down their phones and place them in the fridge.” (TechDirt, 07/23/13)

Now a British intelligence agency is accused of getting Yahoo account users’ webcams to take snapshots of them every 5 minutes:

“Millions of global Yahoo accounts were hacked into by a secret programme called Optic Nerve – whether the user was a security threat or not – that collected mugshots every five minutes.” (DailyMirror, 2/27/14)

These constant reminders of pervasive observation has left me feeling potentially observed in many situations where I did not used to. It is profoundly disturbing and unacceptably un-American. But it does present an interesting copyright question:

In this Schrödinger’s box of personal privacy, can we ever assume we are speaking unheard, creating unseen?

In the usual formulation of copyright law, things which are fixed are protected and other things are not. A few forms of ephemeral creation I engage in daily:

  1. Singing on my evening walk home through the woods,
  2. Dancing wildly to anything with a gut-punch drum beat,
  3. Writing poetry on my apartment’s many note-mirrors,

But what if my cellphone was recording my nightly recitative, or the cellphone of one of the other people walking home for the night was doing the same? What if my computer was infected with Optic Nerve and took a snapshot of me mid-dance-move or of my nascent mirror poetry? Then each of those utterances and creations would be controlled by copyright.

The entire premise of intellectual property relies on it being a special class of communication, information that is so useful to society it is worth providing a limited monopoly to its creators to incentivize them to keep doing it. But if everything I say, every draft of a poem, every rehearsal of a song holds the same legal weight because they are all recorded in the same way, that undercuts the system of incentives severely.

Particularly because, since most of the illicit recorders involved are government-agencies and copyrighted works created by the government are whisked upon birth into the public domain, every single one of those draft utterances would be in the public domain.

In the living world, intelligence agencies are unlikely to release a public database of their illicit recordings, though they all should be in the public domain if they did. But what about private recorders? This isn’t nearly as theorhetical–see the mostly-creepy, kind-of-cute “Security Cameras” ad from Coke:

Those funky dance moves, that soon-to-be-erased PEACE graffiti, those are classic creations not subject to copyright because they are not in a fixed medium. When fixed as they were in this Coke ad, they become tangible and copyrightable. Possibly even copyrighted, but not by the dancers: by Coke.

And this is where this post’s theoretical question gets to brass-tacks: when a piece of expression that was by all intents ephemeral becomes recorded, either by governmental or corporate intrusion, what do we do with the resulting intellectual property? Do we let Coke gleefully sell their product with it, and I am perhaps unfairly assuming, without compensating those whose bodies produced the creation in the first place?

There are legal questions here, and moral ones, but for me the existential threat remains: what does it mean to create intentionally for a copyright, when everything is potentially being recorded?

Inspirational Quote:

“She wished there was some place where she could go to hum it out loud. Some kind of music was too private to sing in a house cram fall of people. It was funny, too, how lonesome a person could be in a crowded house.” ― Carson McCullers, The Heart is a Lonely Hunter

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