Who gets to own our culture?

In honour of Techdirt’s World IP Day “anti-contest”, I’ve decided to write a few words about the relationship between copyright and culture.

Specifically, I’m interested in the question of who gets to own our culture, because copyright is the mechanism we use to answer that question.  Copyright — intellectual property — is the idea that when you create something — a photograph, a song, a film, or an essay like this one — you own that creation by virtue of being its creator.  You are free to publish it or to hide it away, to be magnanimous in sharing it with the world or to set up a toll booth and charge people for experiencing your creation.  All of those things belong to you by right — and that right is called copyright.  Thus are the seeds of ownership planted for all of the cultural artifacts that are created.

Culture is a different beast.  It’s also a very fuzzy concept.  When people talk about culture, they never quite seem to know exactly what they mean.  We often seem to think it has something to do with the arts — the “cultural industries” are the ones that produce things like literature and art and movies.  Or, perhaps it has something to do with having a shared language or ethnic background.  Or food.

What I mean by culture is this:  Culture is just the things that people share between them.  And, to the extent that they share things, they share a common culture.  Culture is the lingua franca that binds a particular group of people together, whether that group is a nation, a particular ethnicity, a company (as in “corporate culture”), or just a small group of friends.  Culture is made of the common experiences that bind a group together.  Whatever group it is, the most salient feature of culture is that it is shared within that group.

That feature puts it in direct conflict with the idea of copyright.  Because if culture is fundamentally about sharing, copyright is fundamentally about controlling who gets to share.  If you own the copyright on some cultural artifact — let’s say the new Star Wars movie — you control who gets to watch Star Wars.  By extension, that also means you control who gets to talk about Star Wars and what they are allowed to say about it.  Because, if you can’t watch Star Wars, you lose access to the culture that is Star Wars and the things you are able to say about it will be very limited.

In a very real way, owning copyright means owning a piece of culture.  And, with that in mind, let’s return to the question of who gets to own our culture.  Initially, copyright belongs to creators.  There’s an intuitive appeal to this arrangement; it makes sense that the originator of a piece of culture gets to own it.  But, in reality, it is not creators who own our culture.  In fact, much of the culture that matters — the culture that is shared widely enough to be known on a large scale — is owned by large media conglomerates.  Star Wars is owned by the Walt Disney Company, not by George Lucas.

Of course, saying that our culture is owned by giant media conglomerates is a gross over-simplification.  Copyright is automatic and universal, which means everything from the e-mail you wrote to your boss last week to Donald Trump’s latest tweet is covered under copyright as a potential cultural artifact.  And there are plenty of aspects of culture that are not covered under copyright at all — language and food being two obvious examples.

Still, there is something significant about the amount of control that media companies exert on our culture.  And that significance is evidenced by the phrase that I used to describe it.  Media conglomerates don’t just own a lot of culture.  They own a lot of culture that matters.  In crass corporate terms:  They make it their business to own culture that is worth a lot of money, and, if possible, to increase the amount of money that they can earn from that culture.  What determines which culture is worth money?  Or, put another way, what determines cultural value?  We’ve already answered that question:  It is the culture that is most widely shared.

That’s significant, because it belies the intuition we had about copyright belonging rightly to creators.  It’s not creators that create cultural value.  The value comes much more from the sharing than from the creation.  A moment’s thought will confirm this.  Of the immense number of copyrightable creations, only a vanishingly small number will gain any significant amount of cultural relevance.  Chances are, the e-mail to your boss has absolutely no cultural relevance, and neither does the gorgeous piece of art that you framed and put on your wall.  It is not the act of creation that makes culture; it’s what happens to that creation after it leaves the hands of the creator.

We are now in a position to answer the question we asked at the beginning:  Who gets to own our culture?  The answer is this:  The people who popularize it.  Media conglomerates end up owning a lot copyrighted culture because they profit from taking raw creations and promoting them to the status of culture.  And, generally, creators are only too happy to exchange their copyrights for money and a bit of cultural notoriety.

Having answered the initial question, we can now ask a deeper question, the real question, namely, if significant parts of our culture are owned by the media conglomerates that popularize them, is this a desirable state of affairs?  And the answer, I think, is an unequivocal no.

This new question — the real question — is a question about power.  The question is about who has the power to determine what is culturally important and which voices get heard.  And the reason why the answer is no, the reason why we do not want media conglomerates to own our culture is because their choices about what is culturally important are dictated by what makes them the most money, not by the merits of the cultural artifacts that they promote.

When Disney decides to finance another Star Wars movie instead of a biting satire of the political system, that decision is driven by money, not by artistic merit or cultural need.  And, as a business, that’s their prerogative.  But, just because that decision is good for Disney does not make it a good one for our culture.  And our culture is more important than Disney’s bottom line.  As a culture we need to ask:  Who do we want to own our culture?  Who gets the power to decide what is culturally important?  We can do much better than outsourcing this power to giant media conglomerates.  But … how?

They key lies in the mechanism for owning culture:  Copyright.  By allowing companies to buy and concentrate ownership of copyright, we have turned culture into a commodity, where one piece of culture is as good as another as long as it can be bought and sold.  In such a market, it is money that dictates cultural importance, not ideas or artistic merit.

What is the alternative?  One possibility would be to attach copyright to the creator permanently, to make creators the permanent owners and guardians of the culture they create.  The appeals to the intuition that creators should own culture, and perhaps they would do a better job of cultivating culture than corporations.  But, such an arrangement ignores the fact that cultural value truly comes from sharing, not from creation.  If we are to respect that fact, our culture must be owned by all of us.  Which is to say, it should be a commons, owned by no one.

If we want our culture to be a marketplace of ideas, where the best ideas rise to the top and gain the most cultural resonance, we cannot allow it to be a marketplace of commerce, where the most successful ideas are the ones with the most money behind them.  To achieve that, to de-commodify our culture, we cannot allow culture to be owned.  Once culture can be owned, it can be bought and sold.

To do that, our system of copyright must change drastically.  Instead of being a system of ownership — a system of intellectual property — it must become a system for protecting the integrity of our culture.  If copyright is about who has the power to shape our culture and whose voices get heard, it needs to vest that power in the people who are best suited to creating and improving our culture, and it needs to concentrate that power in the hands of the people who have the best track record of creating positive cultural change.

This means creators.  But, not just any creators; it means creators who drive our culture forward.  Rather than rewarding every act of creation with ownership, copyright should reward those who create culturally significant works with the resources to continue creating them.

The mechanism for this is not ownership but reputation.  Rather than controlling who is allowed to access culture, copyright should encourage culture to be shared as widely as possible.  After all, culture is built on sharing.  But, whenever a piece of culture is shared, whenever the stock of that culture begins to rise, that culture should bear the imprint of its creator, and the creator should be indelibly identified with that creation.  In this way, the creators of the most resonant pieces of culture will become culturally significant along with their creations — and will be in a position to reap the benefits.

Copyright would thus become a system for ensuring that social power flows to the most culturally significant people rather than to people who are famous for being famous.  Imagine a world where we had never heard of Paris Hilton but Marie Curie had attained equivalent status and social power.

Achieving such a system in today’s political environment seems … unrealistic to say the least.  And, exploring such a radical change to copyright in depth would like require a book or two (or a documentary).  So, in envisioning this new kind of copyright system, I do not expect to make it a reality.  But, in all the reading I’ve done about copyright over the years (and it’s quite a lot), I’ve often felt that the problems of copyright have been much better explained than any sort of vision for what copyright could be.  Perhaps that’s why copyright seems to have progressively become worse for culture rather than better.

So, in honour of World IP Day (though probably not in the spirit intended by WIPO), I hope I have articulated a vision of copyright that could enliven and enrich our culture rather than restrict it.  As imperfect as it is, at least it holds a glimpse of a better system.

Is Rogers Selling your Location Data?

Is Rogers Selling your Location Data?

There’s a rule of thumb about clickbait headlines that says if the headline is asking a question, the answer is no.  Except in this case, the answer is yes.  Yes, Rogers is definitely selling your location data.  They are selling your location data even if you are not a Rogers customer; the fact that they run Canada’s largest cellphone network, and one of Canada’s largest ISPs gives them access to pretty much anyone’s location, regardless of whether or not you do business with them.

Who are they selling it to?  We already know that Rogers (and every other Canadian telecom) will give your location to law enforcement.  Michael Geist reported that

three [Canadian] telecom providers alone disclosed information from 785,000 customer accounts in 2011. Moreover, virtually all providers sought compensation for complying with the requests.

It’s not clear how many of those requests include location data, but I wouldn’t bet against the answer being “most of them”.  We already know that Rogers is selling your location to law enforcement.

But that’s not what I’m talking about.  Law enforcement’s ability to track your location is a scandal in its own right, but these days, it’s old news.  At least law enforcement has the (dubious) justification that it helps them catch “bad guys”.  But Rogers isn’t just selling to law enforcement.  In fact, they are selling your location data to me.

Now, just to be clear, I have not actually purchased any location data.  But I could if I wanted to.  The data is definitely for sale, and it’s not for any lack of effort on Rogers’ part that I haven’t made a purchase.

I run a small business. That means I’m on more spam lists than I care to admit, and I receive calls on an almost weekly basis promising to put my website in the top 10 results on Google.  Most of these are obvious scams, but recently I received a call from a more professional-sounding organization called Rogers Outrank.  For some reason, I agreed to a half-hour sales call to talk about what Rogers could do to promote my business.

I won’t bore you with the details of the sales pitch.  Suffice to say that they made the usual promises to put me on the front page of Google’s search results (something Google might be interested in, since their advertising partners are not supposed to guarantee natural search results), and they provided extensive tools to generate sales calls from those results.

One of those tools caught my attention.  You can see why in this screenshot from their sales presentation:

Outrank Call MapThis is a map of inbound calls for the campaign.  The red pin is supposed to be the location of my business.  The blue pins represent people who have called the number associated with the sales campaign.  You can drill down and get more detailed information about each caller, including address.

Where does this information come from?  My friendly Rogers salesperson had the answer:

So the map is really cool because it lets you see where your leads are going to be calling you from, so if they use a landline, or from a desktop computer, they track the IP address to let us know where that person is calling from, and if it’s a mobile, it’s tracking GPS.

The salesperson assured me I would get this information regardless of who their service provider was:

Same idea, whether they are with Bell, Telus, Koodo — whatever other providers they are — we make sure that when anyone with any sort of brand is looking for your service, our goal is just make sure they are finding you, regardless of whether they are a Rogers client or not.

Let me say this loud and clear:  This is creepy.  Rogers is selling me the location data of anyone who calls my number, specifically so I can make decisions about how to sell them my services.  As a salesperson, that’s really useful, but it’s not an option I should have.  As a citizen and a private individual, I don’t want my whereabouts to be available to someone who is selling me something.  I don’t want that information to be available to anyone, and Rogers shouldn’t be selling it — especially when I have no business relationship with them.

Now, a few provisos:

  • It’s a salesperson, so the technical explanation of where the information comes from may not be accurate.  For mobile information in particular, I think it’s more likely that the location data comes from tracking SIM cards via cell tower triangulation than directly accessing the cell phone’s GPS.
  • Likewise, the salesperson doesn’t say outright that I can get addresses for people who don’t use Rogers … he simply implies that “their goal” is to provide me with useful information.  But, the map is pretty telling, and I made a point of asking how reliable the information on the map was.  He was pretty clear that I could expect to get reliable location data for all my incoming calls.
  • They aren’t selling location data as a separate product.  Technically, Rogers is selling a marketing service, which includes location data as part of the service.  I can’t buy the location data separately.
  • Locations are for inbound calls only.  That means I can’t just ask Rogers to track a given phone number; I only get locations for people who I have somehow convinced to call me.  But, Rogers’ product is marketing.  Their service is specifically designed to convince people to call me.

So, is this legal?  I have no idea; I’m not a lawyer.  I’d love to hear someone like Michael Geist chime in.  My guess:  Probably, it’s technically, arguably legal.  Rogers has plenty of cash to spend on lawyers.  The fact that they are only selling data from incoming calls probably comes with some sort of implied consent.  I have no idea how they would get around the fact that non-customers’ data is being sold (and thus, there can be no contractually-waived rights), but lawyers are smart.  I’m sure they’d figure something out.

Is it ethical?  Hell no.  Selling my location, without my knowledge and consent is wrong.  I pay my phone company because communicating by phone is a useful, almost essential service.  I understand that that privilege entails letting my phone company know where I am, and, by extension, any other phone company whose customers I talk to.  I understand that it’s not really possible to build a phone system if you don’t know the location of the phones you are calling.  I entrust the companies that run the phone system with my location because it is impossible to build the system without that information.

Selling my location to external parties — making my location public knowledge — is a violation of that trust.  Rogers is taking advantage of me.  They are taking advantage of you, and everyone else who uses the Canadian phone system.  My location does not need to be public knowledge for the phone system to function.  It is being made public purely because it is profitable for Rogers to do so.

I wish I could say I knew what to do about this.  It’s easy to say “don’t use a phone”, but it’s hardly a practical solution.  It’s possible a lawsuit could help stop this particular practice, but that only solves this specific issue; it doesn’t solve the structural issue of abusing private data for profit.  It’s possible an industry regulator — the privacy commissioner? — might be able to do something if I complain loudly and often enough.

Honestly, I think the most effective tool is probably public shaming, which is why I wrote this blog post.  My hope is that other people — you — will read this, and agree Rogers is doing wrong.  And I hope that you will share this post with other people, so those people know what Rogers is doing.  Rogers is selling our location data.  Their public image should reflect the reality of what they are doing.