TOC Of motes and beams. Property law Your Turn
As Joseph Kahn recently reported (*), the Chinese government is passing "its first law to protect private property explicitly". This is undoubtedly a major step to "[build] a new and more secure foundation for private entrepreneurs and the country's urban middle-class home and car owners". Firm but low key pressure by the Chinese leaders has overcome left wing opposition who fears the law will condone the "ill-gotten gains of corruption".

Joseph Kahn's article is quite objective. If readers think this development is quite overdue and that corruption is fueled more by legal vacuum than by explicit laws, it is their interpretation. If American readers feel justified in priding themselves in how much stronger the rule of the law is in the United States, it is a national bias which comes naturally to any country's citizens.

But what if Joseph Kahn had looked at privacy and intellectual property in the very United States? Wouldn't he have observed that we live in a legal vacuum ever since the Internet revolution? Granted there is no lack of explicit laws. But a lot of laws, unapplied and unapplicable, are little better and sometimes worse than no law at all. James Boyle elegantly reminds us (**) that current US copyright laws (1) create "safe harbors" with "rocks and shoals", surely not if I may mix metaphors, the "new and more secure foundation for private entrepreneurs" we so desperately need.

It remains to be seen if the Americans will improve the situation faster than the Chinese. For creating good laws is not an easy job. In a pronaocracy (12/19/06 fillip), legislation is the continuation of competition by other means and reflects the current balance of power between economic lobbies. Might may create right but balance of power does not a secure foundation make.

One step in the right direction would be to gain a deeper understanding of what information is all about nowadays. If my modest contribution can be of help, I will have reached my goal (3/13/07 fillip).

While it is important to build a positive framework (e.g., see 2/13/07, 12/05/06, 8/22/06 fillips), it is just as important to debunk popular fallacies. Most irritating is what I call the Godiva reflex (2). Milt Freudenheim has just reported a typical case. First we learn a treasure trove of personal, confidential data has been lost (***). Then we are told it has been recovered (****), with the soothing mantra duly quoted by Milt Freudenheim: "We have no reason to believe [...] that there was any improper access to the evidence" (see 5/30/06, 7/04/06 fillips for another example). Sure Lady Godiva goes naked through our streets but, my good Sir, be assured nobody has ever cast an improper glance.

More subtle is the Prohibition mindset (see 10/31/06 fillip). It underpins the lawsuit of Viacom against Google (*****). To protect content, demand carriers implement an automatic, preemptive removal of all illegal copies. Anyone dragging one's feet at such a reasonable request is guilty of copyright violation.

The problem with the prohibition mindset is not one of principle. After all alcohol abuse is really bad for your health and an economic burden on society. The problem is one of implementation, i.e. how to distinguish alcohol abuse from alcohol enjoyment? No task in pattern recognition, a well established field of engineering, can be performed accurately. No matter what you do, two types of error will occur. You will arrest as alcohol abusers some people who are legitimately enjoying the fruit of the vine and ignore many real abusers. You can of course suppress false positives by simply declaring illegal all consumption of alcohol. History has shown such a solution is worse than the ill it purports to cure. Short of this extreme, the more you try to decrease one type of errors, the more you increase the other type.

On the Internet and short of total censorship, current global filters for text, music and video are marvels of engineering. But Google is quite entitled to worry that filters tuned to satisfy Viacom will catch so many innocent users that it would negate the attractiveness of YouTube and that filters tuned to limit legitimate user complaints will never satisfy Viacom. One may ask why Viacom does not use Digital Right Managements (DRM) techniques in the first place to protect its own content independently of the carrier? Wouldn't it be because DRM behaves as a kind of filter and that Viacom does not want to antagonize its users but would rather have Google do it in its stead?

Filters are quite useful. Rather than censoring content before users have a say, they should be used to let users declare their preferences. This is the foundation of ePrio's technology. What company will have the courage to give power back to its users? How can pronaocracy make way to democracy?

Why do we notice the mote in our brother's eye, but do not perceive the wooden beam in our own?

Philippe Coueignoux

  • (*) ........... China Moving to Approve Law That Protects Private Property, by Joseph Kahn (New-York Times) - March 16, 2007
  • (**) ........ Rocks in the web's safe harbours, by James Boyle (Financial Times) - March 16, 2007
  • (***) ...... Medical Data On Empire Blue Cross Members May be Lost, by Milt Freudenheim (New-York Times) - March 14, 2007
  • (****) .... CD Holding Medical Data of 75,000 Is Retrieved, by Milt Freudenheim (New-York Times) - March 15, 2007
  • (*****) .. WhoseTube? Viacom Sues Google Over Video Clips, by Miguel Helft and Geraldine Fabrikant (New-York Times) - March 14, 2007
  • (1) for more information, see Distributing Digital Information in our lecture series
  • (2) see Godiva in the Wikipedia
March 2007
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