Who Owns Your Digital Fingerprint?
Negotiating an Answer to the Question
Timothy R. Amidon, Graduate Assistant, University of Rhode Island
This article is continued from last month’s IP Report.
Last month I described texts that are created within electronically networked, socially constructed environments. While these ‘little texts’ may be hosted on sites controlled by well-heeled corporations—think Facebook—they have been authored, sometimes collaboratively, by the users of the technology. That fact led me to pose the following question: who has access to, and thus de-facto ownership and stewardship for, this vast sea of information, these giant data-sets?
Put differently, should we conceive of meta-text and spimes as intellectual property? Under Title 17 of U.S.C.—Copyright Law of the United States of America—should these data-units be considered copyrightable works? Section 103(b) states the following about derivative works:
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
By analogy with the above, a contributor to a metatext/spime could be considered to have a status comparable to that of a contributor to a compilation or a derivative work.
Metatexts/spimes, currently, do not seem to be explicitly considered copyrightable texts and works in and of themselves—if they are, it is beyond my scope of knowledge about copyright and Intellectual Property law. I’m not a lawyer; I’m a writing teacher. But, as a writing teacher I am concerned that spimes have been legally conceived of as byproducts yielded by the interaction that occurs at a point of interface by at least two distinct parties. In other words, historically it seems these ‘byproducts’ have been considered proprietary data that should be assigned to the companies/makers of technologies themselves. I want to interrupt that assumption. Are banks allowed to collect and distribute information about your purchasing habits? Are libraries? I don’t think they can, and I also think there are reasons why that is so.
Let us imagine, then, that the spimes and metatexts we author may be considered “derivative works.” If so, how should the authorship/ownership be assigned if each individual spime/metatext is the result of a complex interaction between technology user and technology provider? Moreover, what about the massive data-sets that are assembled, mined, and analyzed by technology providers? Consider section 101 of the Copyright Law, which provides a legal definition of “collective work”:
A “collective work” is a work, such a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.
There is, no doubt, a significant difference between a D.J.’s remix and a spime—between a periodical and a set of spimes. Further, it is not my intent to claim that spimes or metatexts should be considered “derivative works” or “collective works”—although I think that in some cases this may be the appropriate way to approach things.
The point is that we, stewards in the social negotiation of composing in a digital era, should be having conversations about what is being done with these “texts.” The point is that U.S. Copyright Law, as a system that was built to respond to analog views of authorship and textuality, can no longer adequately address the complexity of authorship and textuality that comes with the hybrid system we now inhabit. The point is that Copyright as a system needs significant overhaul to make sense. As Lawrence Lessig and others have been arguing for quite some time, the balance between individual right and collective good is a bit off kilter. This isn’t just a case of music and movies being pirated; there are other complications that are associated with communication in a digital world, and those who promulgate culture at corporate levels are just one of the parties who are feeling the effects of the digital transition.
In close, independent users of new media technologies ‘co-create’ spimes and metatexts using computers and other new media tools. These spimes and metatexts are often gathered in real time, collected and grouped into databases. As Johnson-Eilola and others have noted, spimes and metatexts can be used for both good and bad purposes. Moreover, a technology user is always a co-author at the interface, and, as a result, of the metatexts, the spimes, that detail the interaction. Metatexts and spimes add value to technologies, but do end-users who do a lion-share of the authoring of that value have access to that information? In most cases, the answer is no. I find this a dilemma for which I have no immediate answer—no immediate response. Perhaps, we place too much trust in the technologies we use; perhaps, we haven’t adequately criticized the economies of interaction associated with technology use. It is time we do so.
Ultimately, in my eyes, there is a significant distinction between a program/netservice’s proprietary code and the by-products of the use of a digital space. There is a distinction between tool and tool in use. It makes sense to me that the informational byproducts of use should be in some cases assigned to a company, but in other cases perhaps they should be kept private or disclosed as part of the public record. Nevertheless, I am concerned that there is neither greater public discussion nor greater public concern about who does claim ownership of, let alone who ought to claim ownership to, the metatexts/spimes that are created by a collective body of technology users. As a discipline, we might help begin that conversation through our research, publishing, and teaching practices.
Johnson Eilola, Johndan. “Among Texts.” Rhetorics and Technologies: New Directions in Writing and Communication. Ed. Stuart A. Selber. U of Southern Carolina P, 2011. Print.
Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: Penguin, 2004. Web. 15 June 2011.
This column is sponsored by the Intellectual Property Committee of the CCCC and the CCCC-Intellectual Property Caucus. The IP Caucus maintains a mailing list. If you would like to receive notices of programs sponsored by the Caucus or of opportunities to submit articles to either this column or to an annual report on intellectual property issues, please contact email@example.com.
CCCC IP Committee Website
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Report of the Meeting of the Annual CCCC Intellectual Property Caucus
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