The European Union recently adopted laws embodying a proposed “right to be forgotten,” to protect individuals from eternal memorialization of unfortunate past indiscretions. However, I feel it’s time to propose a complementary “right to remember,” to ensure that history cannot be erased or rewritten at the whim of those who control the systems we use to communicate, plan, and lead our lives.
Recent court cases have shown that the largest, most powerful companies controlling the internet are willing to take extreme positions regarding their right to control data after it’s been made public. They abuse ambiguous, out-of-date US legislation such as the Computer Fraud and Abuse Act and the Digital Millennium Copyright Act to threaten and punish companies that dare to collect data that is explicitly intended for public view. They also employ sophisticated software to thwart and discourage automated collection of data they deem undesirable. (My company is currently involved in such litigation against LinkedIn.)
The potential harm here goes way beyond the success or failure of a few small Silicon Valley startups. To keep the powers that be accountable, we need to support and protect the right to view, archive, and make available information that was made public in the past. No individual, company or government has the right to restrict access to information of note that was publicly available at any point. No one has the right to fiddle with history.
Data is made public when people want to disseminate that data broadly — to publish it. Platform designers can specify what data stays behind a wall (available only to explicit “users” who have signed up and signed in) and what data is made freely available for search engines, individual users, or — presumably — anyone with an interest and a connection to the internet.
What rights does the public currently have to this supposedly public data? In most countries, that question can be framed through an understanding of the principle of copyright. Copyright is a form of monopoly control afforded to creators of “original work,” to ensure that those who have invested considerable time and effort to develop that work have the ability to profit from it. It’s important, however, to understand the limitations of copyright. From the US Government Copyright Office:
Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.
Copyright protects the artistic expression of a concept, not the underlying ideas, theories, facts, or observations.
There is also a principle called fair use (US) or fair dealing (other places):
In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. — Stanford University Library
But assuming the use is within the confines of existing copyright…
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