Michael Falgoust

Many arguments offered by the free culture movement emphasize the ways in which new works rely on works, which have gone before, the discoveries and data of other scientists, and a general stock of common knowledge. An exammation of the ways in which old works mform new works will show that drawmg on previous works is a necessary and inevitable part of the act of creation. Despite the negative connotations surrounding the label "derivative," all works are, in an important sense, derivative, and must be so in order to be recognized as novel and creative. As such, there should be greater freedom in the creation and circulation of derivative works. Under the current intellectual property regime, the creation of derivative works can be controlled at the discretion of the author. Therefore, any system of intellectual property rights must preserve the ability of creators to draw on previous works, including the ability to employ significant elements of protected works in their own creations.

The U.S. Constitution employs a utilitarian view in authorizing Congress to establish patents and copyrights. Let us refer to this way of justifying copyright as the Incentives Argument, or more extensively, the Incentives Argument for Intellectual Property Rights. While seemingly straightforward, the Incentives Argument has been widely criticized in philosophical literature on intellectual property. Scholars have come to prefer Neo-Lockean labor-desert accounts, grounding intellectual property rights in the author's natural ownership claims over his creations. Neo-Lockean accounts are thought to avoid some of the problems classically associated with utilitarian arguments, such as vulnerability to empirical evidence and an inability to make sense of rights or duties morally prior to consequential considerations. Fortunately, many criticisms articulated by opponents of the Incentives Argument can be answered by a strategic retreat to the version of utilitarianism found in the work of John Stuart Mill. I argue that not only does a Millian account of the Incentives Argument prove less vulnerable to oft-cited criticisms, but also allows for a more robust account of how the audience benefits from a proliferation of creative works. Mill's focus on the importance of critical self-development allows for a deeper analysis of how creative works benefit members of the audience as individuals and as a community. Within a Millian framework, viewing the audience as mere passive consumers of media fails to take into account the impact of expressive acts on an individual's critical self-development. Instead, one must see members of the audience as active participants in the creation of meaning and the common culture. Construing the community that receives creative works as an Active Audience alters the landscape of copyright, and the Incentives Argument, making balancing the desires of creators and the desires of audience members a key priority

Unprecedented advances in the ability to store, analyze, and retrieve data is the hallmark of the information age. Along with enhanced capability to identify meaningful patterns in large data sets, contemporary data science renders many classical models of privacy protection ineffective. Addressing these issues through privacy-sensitive design is insufficient because advanced data science is mutually exclusive with preserving privacy. The special privacy problem posed by data analysis has so far escaped even leading accounts of informational privacy. Here, I argue that accounts of privacy must include norms about information processing in addition to norms about information flow. Ultimately, users need the resources to control how and when personal information is processed and the knowledge to make information decisions about that control. While privacy is an insufficient design constraint, value-sensitive design around control and transparency can support privacy in the information age.

In this paper, we employ Extended Cognition as a background for a series of thought experiments about privacy and common used information technology devices. Laptops and smart phones are now widely used devices, but current privacy standards do not adequately address the relationship between the owners of these devices and the information stored on them. Law enforcement treats laptops and smart phones are potential sources of information about criminal activity, but this treatment ignores the use of smart devices as extensions of users’ cognitive capability. In Philosophy of Mind, Extended Cognition is a metaphysical theory about the relationship between consciousness or cognitive activity and various external tools or aids that agents employ in the service of cognition. Supporters of Extended Cognition argue that mental activity must be understood as taking place both within the brain and by way of tools such as a logician’s pen and paper, a mathematician’s calculator, or a writer’s word processing program. While Extended Cognition does not have universal support among philosophers of mind, the theory nevertheless describes how agents interact with their “smart devices.” We explore the the implications of taking Extended Cognition seriously with regard to privacy concerns by way of a series of thought experiments. By comparing the differences in expectations of privacy between a citizen and the government, between an employee of a corporate firm, and between citizens alone, we show that expectations of privacy and injury are significantly affected by taking the cognitive role of smart devices into account