From: Dark <unicorn@access.digex.net>
Date: Thu, 11 Nov 93 23:59:23 PST
To: cypherpunks@toad.com
Subject: privacy/property
Message-ID: <199311120757.AA23496@access.digex.net>
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As I recall, Dark, INS v. AP is copyright/First Amendment case, 
not a privacy case. (International News Service was cribbing from 
AP stories.)  What does Brandeis say in this case that seems to 
be a reservation about  privacy rights?
<-
 
Although the basis for the case was superficially a copyright 
case, because it involved injunctive relief, the Justices had to 
reach for a protection of property rights to uphold the 
injunction.  This was my point, that privacy should be linked to 
property rights so as to open the way for more than simple forced 
transactions by entitlement and monetary damages in relief.
Consider Justice Brandeis' comments at the beginning of his 
dissent:
 
   No question of statutory copyright is involved.  The sole 
question for our consideration is this: Was the International 
News Service properly enjoined from using, or causing to be used 
gainfully, news of which it acquired knowledge by lawful means 
[...]  _International News Service v. The Associated Press_, 248 
U.S. 215, at 249 (Brandeis, J., Dissenting).
 
 
As for the hook in on property and privacy, consider:
 
The general rule of law is, that the noblest of human productions 
- - knowledge, truths ascertained, conceptions, and ideas - become, 
after voluntary communication to others, free as the air to 
common use.  Upon these incorporeal productions the attribute of 
property is continued after such communication only in certain 
classes of cases where public policy has seemed to demand it.  
_International News Service_, 248 U.S. 215 at 250 (Brandeis, J., 
Dissenting).
 
This is just in 1918.  Even here we see the public sphere taking 
the lead role.  Enter the progressives of the 20's.  This was a 
touch beyond my point, however.  My focus was more that even back 
then there was a recognition that intellectual production had to 
be guarded with property rights.  Applying the law of capture to 
intellectual pursuits like the news?  If privacy rights existed, 
why go so far?  Business and proprietary news protected by a long 
stretch of property rights?  To me this is just a bridge to jump 
the missing privacy rights gap.  Granted this is not an ideal 
case, but it illustrates the attitude (and it was the only 
Brandeis case that jumped to mind when replying quickly to your 
note :)  )
 
- -uni- (Dark)
 
 
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