I noted yesterday that this NYTimes article, while provocative, was incomplete as posted. The complete version is now up: Guarding Privacy vs. Enforcing Copyrights [pdf]
The rights to protect privacy and to protect intellectual property started from very different doctrines, said Mike Godwin, a lawyer with Public Knowledge, a group that focuses on the many battlegrounds of the copyright wars. Copyright and patent rights, Mr. Godwin said, were enshrined in the Constitution, with provisions to ensure that the creators were paid for the fruits of their ideas and that the public had access to those ideas — a very delicate balancing act that is at the heart of a healthy marketplace of ideas. A constitutional right of privacy was divined only later, beginning with the theories of Louis D. Brandeis, who became a Supreme Court justice, and was drawn from ”penumbral” rights of freedom of speech and the feeling of security in one’s home, he said.
Privacy rights and intellectual property rights are also treated differently under the law, Mr. Godwin said. Copyrights protect only the specific expression of an idea or information, as in a song or a book. But in the right to privacy, the information itself — a Social Security number, the medications you buy — must be protected. ”That’s a very rare and fundamentally different right,” he said. ”These are two different bodies of law — the legal theories are different,” and different things are protected.
That argument appeals to Jessica Litman, a professor at the Wayne State University law school in Detroit. She suggests that the comparison between privacy rights and property rights is the sort of thing that sounds good if you say it fast, but that breaks down under close scrutiny.
Ms. Litman looked askance at advocates who, during the 1990’s, in an attempt to get lawmakers to pay more attention to privacy, began talking about private information as a form of personal property. ”I am one of the people who, back then, said, ‘This is a terrible idea,”’ she said. Property law is largely intended, she said, to make it possible to sell property, not to keep it secure. The property framework does fit intellectual property, she said, because those rights help artists and their representatives ”trade their art for money.”