Inspiration for Privacy from Copyright and Beer

It is quite impossible to make informed choices about privacy, and about the uses of content and data we generate. The terms and conditions of services we use are too long and complicated to read and understand, and anyway are drafted to conceal as much as they reveal. Third, fourth, and fifth parties make their livings off our traces. As individuals, we simply don’t have a way to insist that corporations, or even other individuals, show us proper respect online.

To some degree we accept our weakness, preferring that these useful services should be there rather than not, and celebrating the disruptive force of digital business even where we know we are both fuel and product. Perhaps we have a sense that we are still at the start of a journey, and hope that the destination will a humane and respectful place. Not many of us want to be evil, no matter where or for whom we work.

Should we accept this compromise, as unwilling parties to a trade that is at best tolerated and at worst coerced? I do not think it is inevitable that we need to lose so much of our privacy or our expectations of good behaviour and respect in the online world. We have dealt with similar situations in the past, and steered the ship off the rocks. There is no reason we should not do so again.

When aristocratic patronage and its cousin, censorship and State control of speech, failed to keep pace with the modernisation of societies, with technological advances, and with population growth, authors and composers, artists and performers found themselves similarly empowered by the accessible technology of the printing press, and exposed to growing corporate exploitation. Some used their new power to test how far the tolerance of the State for sedition would stretch. Many found themselves victims of plagiarism, bowdlerisation, and copying for sale and profit.

This abuse led to real hardship, and a sense of injustice. The earliest uses of the word ‘pirate’ to describe a copier of another person’s writings actually precede England’s first authors’ copyright act by half a century. Here’s Daniel Defoe writing in 1704 in ‘An Essay on the Regulation of the Press’:

[Abridgement] is the first Sort of the Press-Piracy, the next is pirating Books in smaller Print, and meaner Paper, in order to sell them lower than the first Impression.

a practice he says is “down-right robbing on the High-way, or cutting a Purse.”

Defoe had no doubt at all that the press should be regulated, and authors punished for scurrilous writings. But he sought an equilibrium of interests rather than the imposition of top down prohibitions. In brief his answer was to remove the right of anonymity for published work, define as clearly as possible what was out of bounds, set penalties for transgressions, and establish that the rewards of the labour of writing should go solely to the author or his assignees.

To achieve the last of these aims Defoe proposed a construct by which words, previously considered a crude kind of property which only force or secrecy could protect, came under the regulation of the law, fully identified with their author for both their consequences and any material benefits that might arise. Copyright substituted a new tradable authors’ right for the failed printers’ monopoly right, and then customised it for its expressed purpose, to benefit society by encouraging learning and publishing.

Defoe’s argument largely carried the day in the first authors’ copyright act, the Statute of Ann, enacted in 1710. Over the following three centuries Defoe’s principle, of a balance between responsibility and benefit, has been extended in scope and term and geography and remains the dominant theme of copyright law and regulation. It recognises the weakness of individuals as well as their propensity for mischief, and seeks to draw all authors into a healthy relationship with society and commerce. By the end of the 18th Century it was possible, if still difficult, to be a professional author, selling copies or copyrights, the private patronage system was in retreat, and literacy was the norm. It had worked.

Like the printers and booksellers of 1704, today’s digital services want all the benefits of the content and data we provide them, but none of the responsibilities either to the creators or to society. They make this very clear if you do manage to struggle through the terms of service and privacy policies, placing compliance with law and all the consequences of offence and infringement with the creator, but an unbounded freedom without compensation to abridge, adapt, publish, sell, and every other kind of exploitation in all media throughout the universe and forever with themselves. It looks almost as if they collectively anticipated the ‘right to parody’ being proposed now to governments; record companies could never get away with such terms!

It would be unfair to suggest that anyone other than ourselves should accept responsibility for our words and deeds. Yet most of us would I expect be perfectly happy going about our business without a printer and bookseller embedded in every trivial act of conversation or commerce. It may turn out that we cannot have the benefit of these services without ceding control over our speech and data; this is a conversation we should have from a position of understanding, not denial and ignorance.

Nor should we accept unquestioningly that digital services are more like public spaces and not an extension of our private lives. For a start, there is nothing public about any of them. They are owned by private corporations, they require a formal agreement before you can enter and use, and your use is entirely on terms dictated by their owners. That they publish is not evidence that they are public. Concomitantly,  looking at a web page or using an app should by presumption be private. Why should anyone be allowed to observe without your explicit permission?

To illustrate, imagine that your local pub forbade you from grumbling about tax evading technology companies until you had assigned them a perpetual licence to exploit your presence, image, and conversation with no compensation. Those t’s & c’s would for sure be described in very colourful terms! In fact, ancient laws and customs give Inns and Public Houses duties rather than rights, to serve equally anyone who is able to pay and in reasonable condition.

This comparison is relevant in another way too. Centuries before the internet protocol networks we now depend upon, Inns performed a different kind of packet switching, taking letters and documents for the Crown and later for the public. Their importance was recognised by another regulated duty; many were obliged to keep stables and horses. (Some even developed an early form of parallel currency, issuing coins and operating exchanges much like Bitcoin today).

As so often, the signposts to show us the way to solve present problems lie partly in a good examination of how similar problems were solved in the past. Drunkenness was contained not by ever stricter control on the supply of alcohol, but by a liberalising law that allowed any householder to become a pub and make and sell beer, as long as it was of good quality, and they kept good order. The old mediaeval Inns, part of the fabric of society, adapted to become relatively safe places of rest, refreshment and recreation for an industrial nation. The intention was clear in the 1830 Beerhouse Act:

…for the better supplying the public with beer in England, to give better facilities for the sale thereof than are at presented afforded by licences to keepers of inns…

Any person, being a householder, who shall be desirous of selling beer etc to apply for and to obtain an Excise Licence for that purpose

Our digital problems today will yield to the same principles as were brought into the regulation of printing, and of pubs, in the past. Our words and images are of course our own, but it required a gift from society in the form of copyright laws before we could usefully exercise control, and that gift was given in order to create a benefit for all, not a private monopoly. Printers fought the early extensions in term because they feared the price they had to pay authors would increase. 21st century record labels lobbied hard for extensions to their rights because they knew artists could not benefit from the extra years.

Behaviour on digital networks is now studied and debated as a social harm, like drunkenness in the early 1800s, with cyber-bullying, indecency, and downright illegal content widely available to children as well as to responsible adults. Defoe understood that it was not enough just to legislate to hold authors accountable. They had to be brought into a different relationship with society, and that meant making them property owners. Again, the law stated its purpose, to encourage learning and increase the supply and availability of books, as well as their quality and authenticity. More good beer in better facilities justified new freedoms for the creation of pubs.

If we owned our privacy and the data and content we generate, digital services would be required to trade with us for them. With that ownership would come responsibility, as we would need to be strongly identified with our online selves in order to benefit from that trade. Of course laws could be developed to constrain online service providers, and attempt to enforce privacy and data protection. And a fierce debate is taking place over control of hate speech, harmful content, and all sorts of undesirable behaviour. But ownership would allow us to regulate ourselves, making irresponsibility and intrusion a risk for the perpetrators, not for society, and making prohibition and enforcement the exception rather than the rule.

So, if we want to steer our online relationships away from harm and towards a productive relationship with society and commerce then we could do worse than heed the lessons of beer and copyright. To guide us away from irresponsible anonymity, we should consider strong rights for all of us over the content and data we generate. Services should be held to standards, required to serve anyone in reasonable condition, risk penalties for trespass into our private conversations and commerce, and carry the King’s messages if necessary.

Most importantly, we should understand that as individuals we are simply unable to maintain our digital rights and principles against well funded corporations. Printers fought against the gift of rights to authors; distillers fought laws that opened the beer and pub market to householders. Government and lawmakers faced them down, and regulated for citizens. We need our digital lawmakers to do the same.

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