"Being watched by Google": Copyright, Intellectual Property and the Individual

“Being watched by Google”: Copyright, Intellectual Property and the Individual

The current question reminds me of a few recent anecdotes. I just showed my undergraduate class the well-known clip of Sir Ken Robinson’s TED Talk on changing paradigms in education. In it, he explains that schooling as we know it is a rather rigid structure that impedes “divergent thinking,” which is a measure of creativity, problem solving and skills not measured by standardized tests of “knowledge.” Among the mixed messages Robinson notes is the prohibition on copying. In education, we call that cheating; outside education, they call it collaboration. Then I gave them an article about the “moral panic” of plagiarism in the age of social media. Later that evening, my graduate class started to consider issues of authorship and aesthetics. Though they never got around to genre (they hate genre as a group, it turns out) and archetypes, they circled the issue enough that I reminded them that on pp. 90-100 of the Anatomy of Criticism, Northrop Frye (discusses the construction of copyright and the myth of individual authorship. As much as I love to show my classes the classic Axis of Awesome compilation, “4 Chord Song,” this isn’t another rant, diatribe or would be exposé proclaiming “Everything is a Remix.” That is being clever about being clever. It’s not so much the fact that everything is a copy that concerns me. Indeed, it isn’t even the ease with which copying occurs that concerns me. Rather, it is the fact the I don’t actually have a copyright on myself that concerns me.

Admittedly, this is more of a conceptual concern. As well, it shouldn’t come as a surprise given the fact that since Horkheimer and Adorno’sThe Culture Industry” thesis has become standard fare on undergraduate syllabi that I’ve had to have the annual joy of informing nineteen and twenty-year-old undergrads that they aren’t really autonomous individuals and that individuality is a myth anyway. If anything, this week’s announcement of “The secret smartphone war over the struggle for control of the user” is actually more insidious than anything Horkheimer and Adorno foresaw in the culture industry era. For we now have “survey eggs.” The Airmiles reward program used this technology in Shoppers Drugmart (at least in a trial in Toronto last year) to let shoppers know when they are close to a shelf with a special on—either for a reduced price or for a bonus airmile. This is a reminder that rewards programs are actually tracking programs. The Estimote people advertise their related nearables as a way of "maintaining contact," which is a frightening euphemism for surveillance. That’s another way of saying tracking. Verizon sends me emails almost daily letting me know things I should be watching based on things I have been watching—or that my kids have been watching. In this regard, I was able to figure out which videos my kids were watching on YouTube all of last year (while I was commuting between Toronto and Norfolk) because of the tracking that Google maintains. My phone, if I let it, is a tracking device. A smartwatch or any kind of wearable would be nothing but a 24/7 tracking device.

What concerns me and has me wondering is what happens to the collected data after I have provided it. For example, one of the untold ramifications of the new Coca Cola Freestyle machines and the new system at McDonald’s isn’t just the fact that I am now a paying employee of these firms, it’s the fact that my habits, tastes, style and when I choose to exercise them now belong to someone else. This does actually remind of the cases of John Fogerty (formerly of Credence Clearwater Revival) and of Mark Volman, a.k.a. Professor Flo. In the former case, the singer was sued for sounding too much like himself. In the latter case, the musician turned academic was told, along with his colleague Howard Kaylan, that they do not own the use of their names. The two cases stem from contracts that were signed by the performers with their respective record companies. When I purchase a soft drink or use my phone to look up a price in a store, the EULA doesn’t have the same weight, yet it has far greater purchase. Moreover, consent is given in a variety of ways unforeseen by even Horkheimer and Adorno's most bleak indictment of "mass deception." As CNN and others reported, data brokers have gone so far as to sell data about rape victims in order to profit from the obscene amount of data that is being collected. Moreover, as a related article indicates, the data may also be wrong. Said another way, data brokers own a version of our identities; that is, a carefully constructed, calculated, copy of each of us. The only thing that has copyright protection is the data set.

Here, it is well worth mentioning Google’s rabid protection of its algorithm, ranking system and search string results. This is important because until now the concern has largely been confined to issues of privacy. However, privacy is a relatively recent invention itself. It is an outgrowth of urbanization and the industrial revolution. Moreover, the emphasis on privacy ignores one important consideration of the individual. The French case cited earlier relates to the right to be forgotten; that is, to have oneself removed from search strings. Even though it has been considered a privacy issue, it is quite properly an issue of copies and copies of copies being made of individual identities in and through the violations of privacy. What is the self besides a collection of intellectual property? It is also worth recalling that the United States Supreme Court seems to enjoy giving corporations the same rights as individuals. Indeed, after the Panama Papers and the John Doe papers, some might argue that the court has afforded more rights to corporations than to individuals, following from the ever-expanding interpretations of the 14th Amendment. It is with tongue placed firmly in cheek that I mention that while this amendment and seemingly every iteration of copyright acts is open to interpretation and reinterpretation given the fact that the founding fathers could not have foreseen the advance of technology, it is not only astonishing that the 2nd Amendment somehow remains sacrosanct, it is equally astonishing that individuals have little or no protection when they and their habits—that is, the very essence of the self, if we understand culture as a way of life and the self as an amalgam of artifacts—are copied incessantly.

Leaving this under the guise of privacy protection obfuscates the for-profit motives of making limitless of copies of each of us. This actually speaks to one of the developments of the culture industry that Horkheimer and Adorno probably should have foreseen but didn’t: the mass production of people. Hollywood and the music industry have managed to mass produce character types. Ultimately, that’s what each of us becomes in this system: a set of data points to be copied and replicated shamelessly (and) ad nauseum, like boy bands, girl groups, teen pop stars, sitcoms, chick-flicks, buddy movies, the classic movies that Adam Sandler, Ben Stiller and Johnny Depp insist on ruining, and these people. I wish I had the gumption of one of my former students. After learning about the “Culture Industry” thesis, he declared himself immune. “I”m not a businessman,” he said in a pictorial in the student newspaper, “I’m a business, man!” Ultimately, we don’t just need to incorporate, we may well need to copyright ourselves, each and every one of us. As much as Kasabian says that we are being watch by Google, in the song from which I pinched a portion of my title, we are also being copied by them.


Your post raises a number of interesting questions about what we mean by “identity” and “self,” and how these terms relate to the concept of intellectual property. Your mention of Google sent me wandering into Google’s Terms of Service and Privacy Policy. I was particularly interested in the way Google defines “me” as a user of its products and services. Here’s a brief excerpt from Google’s Terms of Service related to my content and my ownership of that content (emphasis mine):

Some of our Services allow you to upload, submit, store, send or receive content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.

When you upload, submit, store, send or receive content to or through our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services.

Our automated systems analyze your content (including emails) to provide you personally relevant product features, such as customized search results, tailored advertising, and spam and malware detection. This analysis occurs as the content is sent, received, and when it is stored.

As you can see in the emphasized text above, Google appears to define “intellectual property rights” as my right and ownership of the original IP, defined most clearly as content. However, Google has the right to do an awful lot of things to my original IP “for the limited purpose of operating, promoting, and improving our Services, and to develop new ones.” Not much in there about developing myself as my own property using Google Services. While I’m not willing to go so far as to suggest that my identity is my content, I struggle to differentiate who I am from what I post on Facebook. Not that I’m entirely transparent and forthcoming in Facebook, but a version of me is nonetheless visible and available on that platform; assuming Facebook terms are similar to Google terms, I have a feeling that my identity as content belongs less to me and more to Facebook.

From Google’s Privacy Policy comes this interesting information about the construction of my identity in its Services and systems (emphasis mine):

We may combine personal information from one service with information, including personal information, from other Google services – for example to make it easier to share things with people you know. Depending on your account settings, your activity on other sites and apps may be associated with your personal information in order to improve Google’s services and the ads delivered by Google.

Google creates my profile from various details that I’ve shared across its vast array of services. I’m a Web Manager, which means I’m logged into Google Services every waking (and many sleeping) minutes of every day. I use Google Analytics, Google Chrome, Google Search, Google Drive, Gmail, and I like to look at YouTube videos of cute doggies and kitties. I have a Google+ account that is tied to a Google Business account, and I have scores of services tied to my Google Account for login credentials. As I read the bold text above, Google is generating its version of me from its various interactions with me across its services. From Gmail it identifies my subscriptions, my deleted messages, and my friends and colleagues. From Google Drive it recognizes the data I collect and analyze and the texts I write (and I write a decent number of texts) for scholarship and business. From each of its services Google collates my profile, my identity, and then uses that information to customize my search results and ads.

I think your conclusion is right on target, Marc. We are being copied (and pasted) by them.

Thanks, Daniel, for the very cogent response. The parts of the Google EULA you highlighted are precisely on point. In fact, they reminded me of a couple of things I should have included (or will include if I take this further). First, is the fact that it's not just the content we upload, distribute, communicate, send, share, etc. that is being gleaned and parsed. Facebook, for instance, tracks messages people delete without sending. Sophos, the anti-virus guys, suggest that it's pretty easy to do, argue it's pretty innocuous and then point us to an article that says Facebook also tracks the movement of the mouse pointer. In other words, they want to know what we're thinking so they can copy that and sell it, too.

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