Apple Announces New iPhone, Smartwatch, and The End of Personal Privacy

Last Tuesday, we all sat glued to our twitter feeds and livestreams as Apple wowed us with the iPhone 6 and 6 Plus and the Apple Watch. But if you paid close attention, you may have noticed that Apple didn’t just grace us with some fancy new baubles. They announced a third big reveal… every iTunes account holder was given a free copy of U2’s new album Songs of Innocence. I think Apple was hoping that everyone would be like “Oh, some free stuff. Free stuff is great. Thanks Apple!”

Instead, everyone freaked the hell out because while it was intended to be a nice gesture, it actually said a lot about how Apple (and every other tech company and even the government) views our right to privacy. Namely, that it doesn’t. The problem, of course, isn’t that Apple gave everyone a free copy of a new U2 album (which I’m sure is perfectly fine). It’s HOW they did it. They could have given iTunes users a link to the free download, but instead they went ahead and automatically downloaded the album onto your iPhone and iPad!

Just to reiterate. Apple downloaded an album onto your phone without your consent. If you haven’t already, go ahead and check your phone. I’ll wait. You should see a screen that looks a lot like this:

If you’re like me, you didn’t put it there. This intrusion concerns me because it's such a brazen statement about the state of privacy in this country. Between Facebook’s repeated privacy grabs and manipulations, and the NSAs long-storied collection of personal data, our individual privacy has been under aggressive assault for some time. This is just the latest - albeit a mostly benign - example.

Americans heavily prize their privacy, which makes it ground zero for parties that view individual privacy as a barrier to financial ascendancy or homeland security. These parties use the contentious legal status of privacy as leverage to intrude into your life without your consent. And believe it or not, privacy is a contentious issue... In fact, the Constitution does not mention privacy as a given right. Our modern understanding of the right to privacy is implied from other rights, specifically the 1st Amendment (right of belief), 3rd Amendment (privacy of the home), 4th Amendment (privacy of person and possessions), 5th Amendment (right against self-incrimination), 9th Amendment (no denial of other implicit rights), and the liberty clause of the 14th Amendment.  These amendments all touch on privacy in their own way, but never address is explicitly. The Supreme Court calls these implications “penumbras” and “emanations.” That is, the right of privacy implicitly emanates from these other rights. And I think that lack of explicitness is why privacy is always a moving target.

And let’s face it, as a society, our sense of privacy (and it’s inextricable little brother, consent) is always shifting. A few weeks ago, the iCloud accounts of Jennifer Lawrence and other celebrities were hacked and their private nude photos leaked. When the photos were taken down from various sites, a cry rang out from certain corners of the internet who believed they should have access to those photos even though they were always intended to be private.

So I ask you, is privacy a relic of the 20th century? And if not, what can be done to curtail its utter demise? No one should be forced to own something just because it’s free, but soon enough it may not even be an option.

Your Copyrights Are Already Protected on Facebook

I was going to let this story slide, but it seems to be driving everyone into a frenzy - including some very intelligent people whom I respect greatly - so I thought I would take a moment to address it here. If you've been on Facebook anytime in the last week, then you've probably seen your friends posting this notice on their timelines:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention).

For commercial use of the above my written consent is needed at all times!

Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook's direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates...

Short version: Facebook is not seeking ownership of your copyrighted works, nor is it doing anything with your copyrighted works that you don't already know about. Posting a notice about it doesn't give you any copyright protections than you didn't already have.

Long version: I understand the talismanic purpose of posting something like that. If enough people do it, it functions like a protest against some of Facebook's more heinous sharing strategies; a preemptive strike against a company that seems to change its terms of service on a whim. But posting that notice is not legally binding. Let me state that again so that it is clear and definitive: posting that notice is completely, totally, and unequivocally useless from a legal standpoint. Here's why:

(1) As I've mentioned before, the moment you create a work of artistic expression, it belongs to you. You are the copyright holder and you are never required to declare to anyone that your copyright has attached to those works. By law, it attaches from the moment it is created.  If, however, you have reason to believe that your copyright has been outright stolen by Facebook or as a result of their practices, that's another matter for which you should seek legal representation.

That copyright covers photos, videos, drawings, writings... anything creative that you make. But copyright does not cover facts or ideas. So while your status update may be copyrightable, your relationship status, name, and other biographical information are not. That means Facebook can share that info without your consent. Furthermore, not all the content on your timeline is your copyright. For example, if your friend posts a photo on your timeline, then you are NOT the copyright holder unless you took the photo.

(2) The Facebook terms of service do not claim ownership over your copyrights, and they have not been changed to claim ownership over your copyrights. The Facebook legal terms page clearly states that:

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.

Instead, Facebook has a license to use your copyrighted works for as long as you possess a Facebook account, but you can limit how much of your information Facebook shares with advertisers and other users through your use of the privacy settings.  And for the record, that's always been the case.

(3) By creating a Facebook account, you have entered a valid, legally binding contract with Facebook.  As a result, there are two effects. First, you cannot retroactively change the terms of a contract just because you don't like the terms.  In other words, you've agreed to let Facebook license your copyrighted works simply by signing up for an account and you can't rescind that term.  You can't plead ignorance to the terms either because in contract law, it is presumed that both sides know what they're getting into before they sign on the dotted line.

Second, Facebook owes you a duty to live up to their side of the bargain as well.  You've already agreed to let Facebook license your copyrighted materials, so it can't just change its terms of service to say "we now own all the material you previously licensed to us."  To do so would be a breach of contract.

But looking beyond the law for a moment, there seems to be a fear that Facebook can arbitrarily change its terms of service to dupe you into relinquishing your copyrights. Certainly Facebook can change its policy to make users sign away their copyrights but why would it? It would be a massive PR migraine, and considering the IPO debacle, Facebook isn't going to engage in an activity that puts its reputation in further jeopardy. If Facebook were to make a massive change like that to its user agreement, it would only apply to new users who sign up after the change is made, not to any of the one billion existing Facebook users.

(4) The fact that Facebook is publicly traded means nothing and has no bearing on the copyright ownership situation. As far as I can tell, "open capacity entity" isn't an actual thing and therefore doesn't mean anything.  Also, it's the "Berne Convention," not the "Berner Convention."

(5) Your copyrights are already protected, regardless of what Facebook does, but what about your privacy? I've seen a lot of people confusing the copyright issue with the privacy issue, but they're not the same. The copyright issue deals with things that you've already posted to Facebook and whether Facebook's use of your copyrighted works constitutes copyright infringement (it doesn't). Privacy deals with who Facebook can share that information with. I won't get into the privacy issue here except to say that you can't claim a right to privacy when you voluntarily place your copyrighted works  in a public or semi-public place, such as your Facebook profile. [Obviously this is a bigger issue, but since it's not at stake here, I'll save it for another time.]

So once again, don't bother posting a copyright notice on your Facebook timeline. All you're doing is wasting valuable space that could be better filled with kitten videos.