[Rumori] p2p and the new surveillance

[Sonia Katyal]

Dear rumori members: 

Hope this finds you well--given the interesting discussions we've had
on this list, I wanted to send you this paper in case you were
interested-- the paper is on digital identity and the relationship
between copyright enforcement and privacy, with special attention paid
to file-sharing and the DMCA.   I thought it might be of interest to
you; the abstract is below, and electronic copies of my paper is
available at the SSRN Electronic Library at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=527003 , but I'd
also be happy to mail you a paper copy if you are interested.

I'd also be very grateful for comments or thoughts on the paper as I
further revise it.  Many many thanks!

Sonia K. Katyal

"The New Surveillance"

Abstract:      
A few years ago, it was fanciful to imagine a world where intellectual
property owners - such as record companies, software owners, and
publishers - were capable of invading the most sacred areas of the home
in order to track, deter, and control uses of their products. Yet,
today, strategies of copyright enforcement have rapidly multiplied, each
strategy more invasive than the last. This new surveillance exposes the
paradoxical nature of the Internet: It offers both the consumer and
creator a seemingly endless capacity for human expression - a virtual
marketplace of ideas - alongside an insurmountable array of capacities
for panoptic surveillance. As a result, the Internet both enables and
silences speech, often simultaneously. 

This paradox, in turn, leads to the tension between privacy and
intellectual property. Both areas of law face significant challenges
because of technology's ever-expanding pace of development. Yet courts
often exacerbate these challenges by sacrificing one area of law for the
other, by eroding principles of informational privacy for the sake of
unlimited control over intellectual property. Laws developed to address
the problem of online piracy - in particular, the DMCA - have been
unwittingly misplaced, inviting intellectual property owners to create
private systems of copyright monitoring that I refer to as piracy
surveillance. Piracy surveillance comprises extrajudicial methods of
copyright enforcement that detect, deter, and control acts of consumer
infringement. 

In the past, legislators and scholars have focused their attention on
other, more visible methods of surveillance relating to employment,
marketing, and national security. Piracy surveillance, however,
represents an overlooked fourth area that is completely distinct from
these other types, yet incompletely theorized, technologically
unbounded, and, potentially, legally unrestrained. The goals of this
Article are threefold: first, to trace the origins of piracy
surveillance through recent jurisprudence involving copyright; second,
to provide an analysis of the tradeoffs between public and private
enforcement of copyright; and third, to suggest some ways that the law
can restore a balance between the protection of copyright and civil
liberties in cyberspace. 

This paper was selected as the winning entry for the 2004 Yale Law
School Cybercrime and Digital Law Enforcement Conference writing
competition, sponsored by the Yale Law School Information Society
Project and the Yale Journal of Law and Technology.





Sonia K. Katyal
Associate Professor of Law
Fordham Law School
140 W. 62nd St.
New York, NY 10023
skatyal at law.fordham.edu