Copyrights and Property Wrongs

Jeffrey Toobin has an interesting piece in this week’s New Yorker on the effort of individuals to get information about themselves or their loved ones deleted from the internet.

Toobin’s set piece is a chilling story of the family of Nikki Catsouras, who was decapitated in a car accident in California. The images of the accident were so terrible that the coroner wouldn’t allow Catsouras’s parents to see the body.

Two employees of the California Highway Patrol, however, circulated photographs of the body to friends. Like oil from a spill, the photos spread across the internet. Aided by Google’s powerful search engine—ghoulish voyeurs could type in terms like “decapitated girl,” and up would pop the links—the ooze could not be contained.

Celebrities who take naked selfies, ex-cons hoping to make a clean start, victims of unfounded accusations, the parents of a woman killed in a gruesome accident: all of us have an interest in not having certain information or images about us or people we care about shared on the internet. Because it provides such a powerful sluice for the spread of that information and those images, Google has become the natural target of those who wish to protect their privacy from the prying or prurient eyes of the public.

In Europe, Toobin reports, the defenders of the right to privacy—really, the right to be forgotten, as he says—have had some success. In the spring, the European Court of Justice upheld the decision of a Spanish agency blocking Google from sharing two short articles about the debts of a lawyer in the newspaper La Vanguardia. While the newspaper could not be ordered to take down the articles, the Court held that Google could be “prohibited from linking to them in any searches relating to” the indebted lawyer’s name. As Toobin writes:

The Court went on to say, in a broadly worded directive, that all individuals in the countries within its jurisdiction had the right to prohibit Google from linking to items that were “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”

While the decision has quite a bit of support in Europe, it has been widely criticized in the United States as a violation of the First Amendment, threatening both freedom of speech and freedom of the press. Where the right to privacy is held to be “a fundamental human right” in Europe, claims Stanford scholar Jennifer Granick, Americans are more sensitive to issues of freedom of expression; they prefer to deal with the privacy issues, if they do deal with them at all, in a piecemeal fashion. Europe’s position, as Toobin explains, comes out of the continent’s long experience with state surveillance, with governments making use of personal data in ways that presumably the American state has not.

And yet…

As Toobin goes onto explain, Americans can legally protect themselves from unwanted scrutiny or embarrassment on the internet through a different legal instrument: copyright law.

Because Google is extremely sensitive to the legal claims of those who own specific words or images, it steadfastly refuses to link to copyrighted materials and images (or allow people to post copyrighted videos on YouTube, which it owns.) So if a celebrity were to take a selfy, or if the Catsouras family owned the photographs of their daughter—they tried, unsuccessfully, to get the California Highway Patrol to give them the copyright—Google could be forced, or persuaded, to stop linking to any sites that posted them. That threat of copyright violation can be very effective.

In August, racy private photographs of Jennifer Lawrence, Kate Upton, and other celebrities were leaked to several Web sites….Several of the leaked photographs were selfies, so the women themselves owned the copyrights; friends had taken the other pictures. Lawyers for one of the women established copyrights for all the photographs they could, and then went to sites that had posted the pictures, and to Google, and insisted that the material be removed. Google complied, as did many of the sites, and now the photographs are difficult to find on the Internet, though they have not disappeared. “For the most part, the world goes through search engines,” one lawyer involved in the effort to limit the distribution of the photographs told me. “Now it’s like a tree falling in the forest. There may be links out there, but if you can’t find them through a search engine they might as well not exist.”

I don’t have much of an opinion about the fundamental issue in the article: the battle between the right to privacy and freedom of speech. Toobin presents the various arguments on all sides of the question, and it’s pretty clear that the European approach, favoring the right to privacy, raises many difficult legal and institutional issues.

What I’m more struck by is how little traction the right to privacy has in the United States, as compared to the claims of copyright.

I don’t know much about copyright law, either in the US or in Europe, but I can’t help wondering if one of the reasons its claims are so potent here, trumping those of privacy, is that copyright is  a property right.

The right to privacy, of course, is historically intertwined with property rights: in the Griswold decision, for example, which struck down Connecticut’s ban on contraception, Justice Douglas cited the Third Amendment, which forbids the quartering of soldiers in private homes, as the basis for a broad constitutional right to privacy. Even so, the right to privacy is not nearly as dependent on the claims of property as is copyright, which is a variant of intellectual property (patents and so forth).

Where copyright is designed to protect a person’s ownership over a text or image on the theory that that ownership benefits the public—if an author can reap the full monetary benefits from the production or sale of a text or image, she will be encouraged to produce those texts and images—the right to privacy is designed to protect a person’s claims against the public. Copyright protects a person’s property by conscripting it on behalf of the public (at least in theory); privacy shields a person from the public.

It’s interesting that an allegedly individualistic US is less sensitive to these issues of privacy than an allegedly collectivistic Europe, but the rights of privacy in the cases Toobin cites don’t involve any property rights. Save the damage to one’s reputation, which might gain some traction from the law if a person were powerful, but gets virtually none when a person is not.

The whole discussion reminds me of another Justice Douglas opinion: his concurrence in Heart of Atlanta Motel v. United States. In that case, the Supreme Court upheld Title II of the Civil Rights Act. That provision made it illegal for restaurants, inns, and public accommodations to discriminate on the basis of race. The Court claimed that Title II was a legitimate exercise of Congress’s power under the Commerce Clause. The majority held that Congress had the power to regulate interstate commerce, that the travel of African Americans to and from the South involved interstate commerce, and that ending segregation in these public accommodations would facilitate such travel.

In his concurring opinion, Douglas conceded that Congress had the right to use its interstate commerce powers in these ways, but he was discomfited by the Court’s resting Title II on that basis. He would have preferred to rest it on Congress’s power under the 14th Amendment.

Though I join the Court’s opinions, I am somewhat reluctant here, as I was in Edwards v. California, 314 U.S. 160, 177, to rest solely on the Commerce Clause. My reluctance is not due to any conviction that Congress lacks power to regulate commerce in the interests of human rights. It is, rather, my belief that the right of people to be free of state action that discriminates against them because of race, like the “right of persons to move freely from State to State” (Edwards v. California, supra, at 177), “occupies a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines.” Ibid. Moreover, when we come to the problem of abatement in Hamm v. City of Rock Hill, post, p. 306, decided this day, the result reached by the Court is, for me, much more obvious as a protective measure under the Fourteenth Amendment than under the Commerce Clause. For the former deals with the constitutional status of the individual, not with the impact on commerce of local activities or vice versa.

But American being America, commerce ruled. And rules. Like property.

What was it those two dudes said? “In bourgeois society capital is independent and has individuality, while the living person is dependent and has no individuality.”


  1. frankjgjr September 26, 2014 at 6:52 pm | #

    Reblogged this on Survivor and commented:
    Excellent read….!

  2. Kurt Newman September 26, 2014 at 6:57 pm | #

    Lots of fascinating stuff here.

    It should probably be mentioned that the doctrinal bases of European and Anglo-American copryight law are very different. In both cases, legal instruments developed for the purpose of state/ecclesiastical censorship or the granting of printing monopolies to booksellers ended up evolving in relation to the new ideological fiction of authorship after the 18th century, in quite different ways. European copyright law rests upon a doctrine called “droit d’auteur” which has long given artists and writers expansive rights vis-a-vis their works, even after sale, and in perpetuity, via the passage of property rights to heirs (There have been attempts, from time to time, to import the “droit d’auteur” to the US–most copyright law/Left people I know think that this would have been a disaster).

    In the US, the copyright protections enshrined in the Copyright Act of 1790 were much much more limited, by design, and authorial rights after “publication” or “dedication to the public” were virtually non-existent until the end of the 19th century. “Plagiarism” and “pirating” were also contested and unsettled terms, and as Meredith McGill has shown, most of the US book industry was built on pirated editions of the famous European novelists–a situation that lasted until the end of the 19th century. We now have a situation much closer to the European model, but with the crucial American innovations of “corporate authorship” and “work-for-hire” overseeing the transfer of property rights from creative worker to the corporation that pays her salary.

    At the same time, the right of privacy was, it must be admitted, basically invented out of thin air by Brandeis and Warren in 1890. It evolved very slowly into a basis for intellectual property law’s “right of publicity” as the idea of celebrity vs. everyone else took root. Privacy is a good right (although for Brandeis and Warren it was intended in large part to shield the powerful from scrutiny that we might think necessary in a democracy), but logically/jurisprudentially it is also a total mess. Really, it is astounding to read the original Right to Privacy article. It is rhetorically virtuosic, but totally casuistic.

    Interestingly, within Marxism there are two contradictory notions about this stuff: on the one hand, that the law wants us to assume the form of possessive-individualist subjects, who think in terms of “rights” (this is an Althusserian/Pashukanisian idea, very influential on Critical Legal theorists); on the other hand, the law is an instrument of abandonment, indifference, malevolent neutrality against which the subaltern’s push for universality to make good on its promises is a rather radical gesture.

  3. John Maher September 26, 2014 at 7:10 pm | #

    Douglas’s comparison in Edwards of the rights of African Americans to cross state lines to cattle, although he was not discussing animal rights but government regulation, marks him as a speciesist.

  4. Yastreblyansky September 26, 2014 at 7:41 pm | #

    “I don’t know much about copyright law, either in the US or in Europe, but I can’t help wondering if one of the reasons its claims are so potent here, trumping those of privacy, is that copyright is a property right.”

    Perhaps it’s that intellectual property is not merely property but preponderantly corporate property, which is why Walt Disney gets to dictate changes in copyright law. American individualism, as you know better than most, is the individualism of the Marlboro Man and the GE spokesman. (And I guess European collectivism seemed for some decades to be a mobilization of individuals, in political parties and trade unions, that could exercise some muscle against capital, though that obviously becomes unclear in the age of Blair and Hollande.)

  5. Roquentin September 26, 2014 at 10:03 pm | #

    There’s a certain attitude, and this probably is a direct result of my studying Russian, that countries don’t really change. Sure, the ideology does, but it ends up making shocking small amounts of difference. When I was in Moscow (for only a day at that), I had a great deal of trouble wrapping my head around the idea that there was a large shopping mall next to St. Basil’s, Red Square, Lenin’s Tomb, and the Kremlin. It just didn’t make sense. How would the Soviet government allow such a thing? It turns out, that during Soviet times this was simply the premiere state store ( The one that was always stocked. The one that they showed to diplomats. When communism ended, they just made it into a shopping mall. You could scarcely tell anything changed. It was at moments like that when it hit me. It really doesn’t matter. Ideology is a joke, a little story we tell ourselves to make what’s happening around us seem deeper and more important than it really is.

    Why am I telling this story. Because America always has been a nation of hustlers. A confederation of used car salesmen and snake oil salesmen. We are a nation of PT Barnum impersonators. Regardless of whether or not it’s right or wrong, our ideas on what should and shouldn’t be done are always filtered through this lens. And in many cases that means property rights are the only sort of rights people understand. I’m not a lawyer. The closest I ever came to law school was making documents for 7 months in a personal injury mill. Still, when I read that Supreme Court opinion, the first thought that runs through my head is they were thinking “banning black people from businesses is wrong, now we just need to cobble together some kind constitutional justification for it.” And that’s fine. Good for them. As if the idea of fidelity to the Constitution wasn’t always colored by an agenda as well.

    • BillR September 27, 2014 at 9:53 am | #

      Russians seem to have a hard time shaking off the Potemkin village metaphor:

      Putin’s idea is that we should be bigger and better capitalists than the capitalists, and be more consolidated as a state: there should be maximum oneness of state and business. A two-party system like in the US? Wonderful, we’ll have that too. Putin worked for many years to make that happen. Although he admits he has not been successful, I think that’s still what he wants, although he realizes it’s a much greater task than he imagined…

      Putin doesn’t believe that there is real competition between the political parties in the West. He thinks of it as a game, like a round of golf in a private club: one player is slightly stronger, another is slightly weaker, but in fact there is no real competition. He imagines it as it was in the Federal Republic of Germany after the war, under the leadership of Konrad Adenauer. There are two parties, one of which has power, and the second waits, perhaps for a long time. The Social Democrats waited, I think, from 1945 to 1970. It’s a sort of one-and-a-half party system. Putin always said that at some point in the future the opposition will gain power, and we must be ready for that moment. By being ready, he meant that we must be both here and there, that is, controlling both parties. The second party hasn’t really worked out yet in Russia; but Putin wasn’t against the Communists turning into Social Democrats.

      …Those who imagined a party president understood it not in the Western sense of that phrase, but rather as a periodic rotation of an elite group which spends some time in power and gathers its bonuses—financial, career and reputational advantages—and then moves aside. The second group moves into power, but they don’t aspire to destroy each other.

      We are talking about managed democracy, but maybe you in the West have forgotten that this concept was widespread in the 1950s in European countries where there had been fascism. In Germany, for example, there was the same idea: Germans have a tendency to totalitarianism so they must not be allowed near politics. They should have the possibility to vote freely, but the people who control real politics must stay the same, they must not yield. A strict system of control has to be created. Everything in Russia—the high vote barrier to get into the State Duma, the one-and-a-half party system—is taken from the German experience. It’s just that in Russia it hasn’t been completely successful, with the breaking up of finance and politics. Is it cynical from the point of view of the theory of democracy? Probably, yes, but here it doesn’t look like cynicism. Maybe it was carried out more successfully in Europe, but your system is older, you have learnt how to do it better.

      …[T]his consensus also had to include an elite which wanted to feel free, and which demanded a maximum freedom to move across borders. For Yeltsin the relaxation of visa restrictions was not a priority. For Putin, this was important from the start. If you want to leave the game, then please, go. There will be no ideological pressure—none is necessary. It will be a state without ideas, based on common sense and on the average man, the citizen.

  6. Snarki, child of Loki September 27, 2014 at 5:38 am | #

    I’ve often thought that it would be worthwhile just giving Disney a perpetual copyright on Mickey Mouse, on the condition that they STOP screwing around with lobbying for copyright extensions.


  7. Erstwhile Anthropologist September 27, 2014 at 11:17 pm | #

    But why be surprised by the emphasis of individual rights in relation to property when the US is a post-slave colony whose foundational documents enshrined a colorline in relation to one’s ability to own other human beings as property and de facto defined freedom as ownership of one’s own body (i.e. the body as property). The focus on copyright and ownership of one’s imagine seems entirely consistent with this legacy. (As does citing interstate commerce and the movement of cattle as a justification for granting civil rights to African Americans, who, as a group, structurally, inhabited the category of chattel which could be transported across state lines.)

    Entirely consistent with the ‘afterlife of slavery’.

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