Posted 9:00 AM

My song, my identity

Your identity is made up of more than just one or two identifiers (SSN, Credit Card number, given name/surname, etc.). Your identity also includes an almost numberless set of attributes each with one or more values. Some attributes are fixed and unchanging (e.g.:identity of relatives, date of birth, the schools you previously attended, addresses you've lived at) while most will change periodically (or, at least, have the potential to change) with wildly varying rates (e.g., current location, current phone number, hair color, vision measurement, spouse's name, employer, and on and on).

Janet Jackson's "wardrobe malfunction" at the Super Bowl a few years ago is a part of her identity as is the terrible rendition of the "Star Spangled Banner" by Roseanne Barr back in 1990. Any performance becomes a part of the performer's identity. Not always to their benefit, but they don't get to choose.

The first law of identity states: "Technical identity systems must only reveal information identifying a user with the user’s consent." Part of Kim Cameron's exegesis of the law makes this clear:

Further, it must reinforce the sense that the user is in control regardless of context, rather than arbitrarily altering its contract with the user. This means being able to support user consent in enterprise as well as consumer environments. It is essential to retain the paradigm of consent even when refusal might break a company’s conditions of employment. This serves both to inform the employee and indemnify the employer.

This, then, can become the basis for a new, 21st century, cyberworld definition of copyright (and trademark, for that matter) as the expression (i.e., the "performance") of what's termed "intellectual property" is intrinsically part of the expressor's/performer's identity and can only be promulgated with their consent. They can, of course, delegate to others the ability to promulgate these bits of identity in various ways (both limited and unlimited), but the original expressor's right to control the promulgation cannot be abrogated and exists in perpetuity.

It's easy to see that the performance is a facet of the performer's identity, but what about the creator of the work performed? If I put together 8 bars of music which I have, I believe, created for the first time - is that part of my identity? Yes, I think it is. But if someone else, without ever hearing my 8 bars, puts together the same series of notes can that be a part of their identity? Yes, I believe it can. Just as many people have the same eye color or hair color, so too can a number of people share the same creative urge to string together a limited number of notes into a tune.

What about the words set to the music? It's far less likely that two people working independently could create the same non-trivial group of words (arbitrarily we'll set 50 words as the baseline for non-triviality). Similar words, yes, but not the same words in the same configuration. Where the notes are like eye-color, the words are more like fingerprints.

What's this all mean? It means we need to think differently about intellectual property. We need to stop the knee-jerk reactions, based on the activities of the RIAA and start thinking about the real people involved.