The Possibility of Future Profits
In the 1890 article that launched privacy law in the U.S., Samuel D. Warren and Louis D. Brandeis said:
The possibility of future profits is not a right of property which the law ordinarily recognizes. (in The Right To Privacy, 4 Harv. L. Rev. 193 (1890)).
These authors were trying to persuade their readers of the existence of a general right in individuals to be let alone. They didn't think this right to be let alone was a property right, because (in part) they didn't believe that the concept of property was broad enough to cover privacy. For example, if true but private facts were published about a man, and that publication made his life difficult (or ruined him), Warren and Brandeis felt that property law wouldn't necessarily protect him — because “the possibility of future profits is not a right of property which the law ordinarily recognizes.“
We now live in an era in which possessors of things they believe to be their “property” fervently believe that law protects their possibility of future profits.
One example: the continuing kerfuffle over Google Book Search, in which publishers are horrified that someone else may someday make money from the books the publishers sold in the past. They fervently believe that they should get a cut of all possible future revenue streams that others create based on these books, and that courts and judges should act immediately to enjoin any activities that might not fit with this model.
Another example: the historic fight over tiered internet access, in which high-speed access providers are horrified that someone else may someday make money from applications using these networks. The network builders fervently believe that they should get a cut of the revenue streams that others will create using these high-speed networks, and that the legislature should act immediately to bless their vision of the future.
What's troubling is how much sympathy both the publishers and the network builders are getting these days. We should thank them, agree that we stand on the shoulders of giants, and move forward without them. Using law to protect the possibility of future profits spells doom for innovation in this country. We don't (usually) protect existing business models with statutes or caselaw. And we shouldn't, notwithstanding the fervor and lobbying heft that accompany both of these claims to control the future.
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