Infringed Ink and Printing Copies of Cases: How Lexmark Collected Intellectual Property Lawsuits like Joker in Persona 5.

It’s fitting that printer ink turned out to be the subject for the series of lawsuits that took on all three of the major areas of intellectual property. Printers are the bridge between the physical and digital worlds, in a way. They are the symbol, and the means, of the transition between digital and paper documents.

Lexmark’s intellectual property litigation legacy is about the different ways that a variety of laws have different connections and offer different perspectives.  Persona 5 is about seeing the world through a variety of perspectives, and understanding different connections and perspectives that people have. Persona 5 is about complex stories that interconnect and overlap, with multiple layers and facets. That complexity and inter-connection has a similar feel to the complex and layered Lexmark litigation saga.

I. The Many Masks of Intellectual Property

In Persona 5, different “personas” (represented by masks) allow characters to perform different types of attacks. Different attack types will be particularly strong or weak against different enemies. This means that a big part of the game’s tactics is about determining which persona to use in different situations.


Probably the one most people mean when they think of intellectual property, especially related to art or entertainment. Traditionally, this area of IP law was focused on books, music, film, and other art. However, due to the Digital Millennium Copyright Act (DMCA), the law also touches slightly on questions of tampering with proprietary devices to modify them (or to modify their functionality).


I see this used interchangeably with “copyright” a lot, but think of it like this: Copyright protects the painting, trademark is the law about the artist’s signature in the corner of the painting. It’s the law that comes most into play when people are talking about counterfeit goods or brand recognition.


This is what most people mean when they think of intellectual property in most business and financial dealings, and especially in the context of science or engineering. Patents are about owning the right to make and sell a certain kind of thing, from cell phones to medicine.

Trade Secret

Like the healing abilities in Persona 5, trade secrets aren’t used often or even mentioned often, but they can fit some situations just perfectly. The other three kinds of IP law require you to make something public- filing a patent with the Patent Office, or registering a copyright (though you actually only need create a work to have a copyright in it, as of the 1976 re-write of the law), or using a trademark in commerce.  Trade secrets go the opposite way: if you take certain steps to NOT let the public know about something that makes your business work, you can claim a right to protect it.

II. Lexmark Litigation (Backstory)

Lexmark makes printers, but has a lucrative racket with recycling their ink cartridges. Well, had, maybe. Because Americans don’t like feeling taken advantage of, and because American Millennials don’t like a lack of choices, other companies sought to offer competing solutions to Lexmark’s ink cartridge restrictions.

In Persona 5, players collect new personas as they progress through the game. Lexmark litigation managed to collect different areas of intellectual property law as they fought over the issue of other companies coming up with ways to interfere with their ink cartridge schemes. What I find really amazing about this 13 year sprawl of litigation is that none of the involvement of IP law is predicable or very expected. Each application of law is noticeably distant from the original ideas and central, foundational, purposes of these laws.

How did Copyright law get involved?

Mostly through the parts of the DMCA that restrict tampering with controls placed on a device to inhibit 3rd party interactions (e.g., Section 1201). But in 2004, the Sixth Circuit (that most difficult of all circuits to pronounce) issued a ruling that called into question whether “lock-out codes” were actually subject to copyright protection, as they are not a form of creative expression. We might have gotten a more authoritative ruling on this topic, but Lexmark missed the deadline to request an en banc hearing at the Circuit level.

How did Trademark law get involved?

Through an argument about whether someone could sue Lexmark under the Lanham Act (the actual federal statute that contains most of trademark law). To actually take someone to court, you have to meet a few basic standards: you have to have an actual claim recognized by a law, for example. One standard for having a trial is that the person suing has to have “standing”: they have to have the legal right to bring a claim. Many laws will include a more specific definition of what “standing” will mean for that law.

In 2012, Static Control Inc. tried to sue Lexmark under some federal business-type laws (the Sherman Act and the Clayton Act), but those laws didn’t actually grant standing to Static Control, which meant they weren’t allowed to actually bring Lexmark to court. Then they tried to sue under the Lanham Act, because the rules for standing are different under that law. The Sixth Circuit granted Static Controls the right to a trial under the Lanham Act. Lexmark took the issue to the Supreme Court, who agreed with the Sixth Circuit’s choice to have a trial.

How did Patent law get involved?

The obvious way for patent law to be in a case brought by a printer company is for the case to be about two printer manufacturers arguing over whether one copied the others’ technology. That is not at all how patent law got used by Lexmark. Instead, the patent law question was about patent exhaustion.

This tiny area of patent law is like the “first sale” doctrine in copyrights. The idea for both is the same: once the end-customer buys the product, the manufacturer’s patent is “exhausted.” Under this law, a customer can do whatever they want with the thing they bought (except make new ones and sell those- that part of the patent still applies). This year, Lexmark brought a case to the Supreme Court on this point of law, hoping to stop a different company that was interfering with the ink cartridges. The third time was not the proverbial charm for Lexmark; the Supreme Court held that consumers do have some rights with regard to the re-use of their own purchased property.

III. Conclusion

My favourite thing about the Lexmark litigation is that it isn’t just about the substance of intellectual property law- it’s about how intellectual property law is administered. The trademark issue wasn’t really a trademark issue- it was an issue about who can sue under trademark law. The copyright issue wasn’t really about copyrights of art or books or movies –it was about whether someone can unlock your digital locks. The patent issue was barely about patents; it was really about whether a patent still applies after a customer buys the product.

I’m excited by this because it’s a sign that intellectual property law is becoming more and more relevant to American life. More details of the administration and applicability and extent of laws have to be established as laws are interacted with more often. Decades ago, intellectual property was a small area of law that only affected a few sectors of a few industries in any meaningful way. Now it affects how we use our cell phones, ingest our entertainment, and even harvest our crops. As this area of law grows in response to innovation and technology, it has the potential to encourage further innovation and advancements, as well as to steer the growth of those new ideas. We are living at a time where we are moving toward either technological salvation or technological armageddon.




What the Internet of Things can Learn from “The Order 1886”

Great (Sounding, Looking) Potential

The Order 1886 has great quality graphics, but is a poor quality game. Just because the technology involved is cutting edge doesn’t mean the final product is good. The internet of things relies on some cutting edge technology and novel ideas, but that doesn’t mean the final product is always favorable.

I’ve been hearing about the “Internet of Things” for several years now. Middle-aged entrepreneurs are just sure that this “the next big thing,” except it’s going to be bigger than the car or the light bulb. From what I’ve seen, IoT is a glossy, shiny, pretty gimmick that hasn’t shown it’s poised to really solve problems that consumers feel they have. So far, we don’t think a fridge that buys eggs for us is really what’s missing in our lives.

Having sophisticated technology isn’t the same as having a great (or even marketable) tech product. In the same way, having glossy graphics isn’t the same as having a good (or even marketable) game. Both IoT and Order 1886 are impressive at a glance, but fail to live up to expectations as one spends more time with them.

Burger King Sets Itself Up For Trolling

The broad IoT idea continues to reveal vulnerabilities and half-thought-out applications. A few months ago, Burger King aired an ad in which the actor in the commercial asked the viewer’s smart phones to read the first paragraph of the Wikipedia page about Burger King’s flagship product, The Whopper. The completely predictable result was that people started vandalizing the Wikipedia page in question, leading the ad to tell people that The Whopper contained humans and cyanide.

There’s a lot I could go into about this example, especially about troll behavior and the weaknesses of IoT’s reliance on unsecure nodes. I want to highlight that the problem wasn’t about hacking into Burger King or Android systems. There are some concerns with IoT and that sort of hacking, but there’s another problem: Entrepreneurs rely on the web without knowing what 4Chan is or having have never been verbally abused by a stranger for the length of an entire League of Legends match. That is a mistake.

This example also illustrates why IoT hasn’t gotten traction: It’s still a gimmick that breaks often. Even when it works at its best, IoT is a fun and surprising answer to a question no one asked. The best case for Burger King’s commercial is that they surprise a few consumers, but also stir fears about privacy and security in doing so. The success of IoT still hangs on the uncomfortable reality of diminishing personal privacy, and many consumers haven’t completely reconciled leaving the past with entering the future.

The Order 1886 Fails as a Game, IoT Still Fails as a Tech Product

One of the reasons people were so angry about The Order 1886 is that the trailers looked so good. People bought into the promise and the hype, and then it failed to deliver in meaningful ways. Similarly, the more glossy the presentations about IoT get, the more consumers will feel the gap when they don’t experience a meaningful impact as a result of using it.

It’s the applications that go on top of the tech that really matter. Platforms and apps that balance consumer’s emotions about privacy and security will be the only thing that can really bring about the kind of pervasive, omnipresent IoT about which I keep hearing (excited and vague) presentations.

Things that look really good but don’t do anything are called art. Things that do something useful are called products. Usefulness is not the sole factor in a product’s quality or its marketability, but it is important- especially if it wants to be more than a fad or gimmick that ends up with a discount sticker in the bargain bin.

Blocks and Chains: Secure, Stable, and Not Flexible

Lynes with Rules: How Blockchain Works

Lyne is a minimalist puzzle game in which you must connect a sequence of shapes with a single, contiguous line. Certain rules govern what lines may do, (e.g., only triangles on this line), and where lines may go (e.g., lines may not intersect or pass through one another), with increasingly elaborate additions and variations on these rules as the game progresses and difficulty increases. This general concept of a line that “knows” which nodes it already has connected and which nodes are permissible is a good introductory way to think about blockchain technology.

Blockchain is the data structure used by Bitcoin and other cryptocurrencies, like Dash. The general idea is a bit like the game Lyne: the line is like the ledger of transactions, and the nodes are customers and their transactions. Everyone who wants to be on the line can look back to make sure the line has obeyed the rules and there are no mistakes or problems with the other nodes on the line. Just as in the game Lyne, the line will not allow a square to get on a triangle-only line, blockchain will not allow an improper transaction.

Blockchain touts two distinct features: 1) an open (“public”) ledger (prevents bad checks and double-spending), and 2) a distributed database (prevents tampering with the ledger). The effect is a secure and trustworthy system for conducting and recording transactions. As with all advances in technology, it is important to consider what is lost in the past by the adoption of the new.


Let it Float, Hope It Doesn’t Bounce: How Check Kiting Works

In the time of The Great Before, when humans stumbled about blindly beneath incandescent bulbs and smeared ink on slices of dead trees, there was a method of financial transaction called “writing a check,” which one did from one’s “checkbook,” using a device that was something like a stylus that leaked. By creating these checks, one person could give permission to another person to go to a bank ask for some money from the check-writer’s account.

There was a way to turn these checks into something like a credit card, using a technique called “check-kiting.” Sometimes, the check-writer could give a special instruction during the transaction: “Hey, I can write you this check, but there won’t be enough funds in my account to cover it until 3 days from now. Can you just wait until then to cash it?” Under favourable circumstances (good faith, trust, friendship, etc.), an off-the-record agreement was reached to add additional wait-time to the check-cashing process in order to allow funding to appear in the checking account. This allowed the transaction to proceed, even though funding was not available to cover the transaction.

Another term for this method was “playing the float.” “The float” refers to money that is not yet moved from one account to another, but has been promised to be moved: If a check for $10 is written but not yet cashed, that $10 is still in the first account, but it is expected to appear in the recipient’s account… well, “sometime soon.” Financers, accountants, bankers, regulators, and economists disagree about how to conceptualize, discuss, and manage “float.”

It’s not surprising that float is decreasing in total amount in the face of digital technology. One of the reasons it ever existed was the sheer amount of time it takes for humans to physically process checks. PayPal can digitally send instructions and records around the world much faster than the US Postal Service can physically transport a check from NYC to LA, or even just down the street. The passage of the Check21 law allowed banks to use images of checks in place of the physical copies, which is why your ATM just scans your check now instead of collecting it for a teller to physically process.

Will Large Institutions like Blockchain?

Whether you like blockchain depends on your goals and priorities. This protocol makes it harder to do off-the-record stuff—like asking someone not to cash a check until payday. You could include a separate set of instructions with a transaction that doesn’t go into the blockchain, but sending those instructions separately means missing out on the benefits of blockchain.

It also seems that blockchain would effectively obliterate float, because the transactions are completed and closed-out almost instantly, if not by close of business each day. There might be a way to work float into the blockchain, but it seems almost counter-productive—unless float is very important to you.

Some enthusiasts suppose that blockchain would diminish the need for banks and lawyers. I think it is more accurate to say that the widespread use of blockchain (if its use ever becomes widespread) could change the role such intermediaries play in transactions. For one thing, blockchains require enormous computing power to maintain. Blockchains are essentially nested hashchains, and rely on increasingly complex hashing to ensure their security. Bitcoin’s blockchain now requires supercomputer-level power to mine, for example- and compared to a ledger of a large bank like Citibank or Bank of America, Bitcoin grew slowly and remains tiny.

Additionally, financial professionals are helpful for navigating and orchestrating complex, multi-party, and exceptional transactions. The majority of transactions are simple and similar enough for a program to handle- however, it would be difficult and inefficient to create a program capable of processing rare and difficult transactions. Trained professionals would be useful, at the very least, for handling exceptional cases that do not fit the mold required by blockchain.

Are Trademarks a Data Security Alternative to Sad, Weak, Outdated Copyrights?

If you’ve been on the web for a while, you’ve seen an advertisement that looks like the user interface of the website you’re viewing- or maybe an ad that has a false close button, and clicking it just navigates you to the advertised page. These are blatant ways to trick consumers into taking actions they don’t want to take. Sometimes, these inadvertent actions can create security vulnerabilities such as malware.

Despite all of the focus on applying copyright law to the internet, I wonder if there are hints of trademark and trade dress protections that could become relevant to data privacy issues. I will cautiously, even timidly, explore a few of those possibilities (which several others have explored over the last few years).

I. Trademarks: When it Comes to Data Privacy, Accept No Imitations.

Trademarks have a simple purpose: to let consumers know the origin of a good or service. Trademarks are often a word, phrase, or image (logo), but can also be a sound or smell (on rare occasion, it can get a bit more abstract ).

A major category of trademark infringement is counterfeiting. That $20 “ROLEX” watch from the guy in the alley? That’s a counterfeit (sorry), and one of the legal issues involved in the sale of that watch is the use of a trademark without the legal right to use it. There haven’t been a lot of counterfeit websites on the internet, especially since SSL and other authentication processes got better. However, there are plenty of imitation apps and games. One of the reasons such apps and games fail and are quickly removed from distribution is that they infringe trademarks.

However, some countries do not have the same standards regarding trademark (or copyright) enforcement. Consider an imitation League of Legends game, lampooned here. At the end of the video, the player says “Oh, and it’s also a virus,” as his security software reports malware after playing the game. This humorously underscores the point that many infringing* products pose a security and privacy threat. Using trademark law to limit the proliferation of readily accessible, easily confused programs is a valuable practice in maintaining computer security for consumers.

II. Trade Dress: No One Really “Owns” That Icon… But You Know Who Owns That Icon.

Trade dress is a sort of sub-category of trademarks. It’s rarely talked about or used, but it can be thought of as the totality of design and aesthetics that go into a product, place, or service that make consumers identify the source. Color palette, patterns, shapes, and other factors go into the evaluation of trade dress. Crucially (and perhaps fatally), elements of a trade dress must be considered “non-functional.”  For example, the major case in trade dress concerned a Tex-Mex restaurant that used the same colors and layout of another Tex-Mex restaurant.

Here’s the controversial idea I think deserves consideration: Could misleading, camouflaged web content be considered an infringement of trade dress? (Think of the kinds of ads that make you believe you’re not clicking on an ad, but rather some piece of actual content on the site- especially regarding navigation buttons that match the navigation icons of the site.)

The reason I look to trade dress for a solution is that icons and interfaces, even stylized ones, are not subject to trademark, copyright, or patent protections. Furthermore, websites are increasingly treated as the digital equivalent of stores and offices of businesses- so much so that designs and layouts can come to be the trade dress of that business. Thus, there is a gap in the legal protection of user interfaces, and a need to cover that gap.

(Treating websites as subject to trade dress might have the added benefit of discouraging UX and UI designers from fiddling with the location and arrangement of navigation tools every other month just to justify their paycheck. And that’s the kind of change this world really needs.)

Conclusion: Trademark Protection is Already Working, Trade Dress is Still Vague and Untested

Trademark law is already quietly making the digital ecosystem a little bit safer by eschewing threatening knock-off games and apps. I think there’s a case to be made for applying trade dress to websites and UIs, but it would be a novel application and courts may be hesitant to apply the law so creatively.


* “300 Heroes” Infringes both copyrights and trademarks, but it’s the funniest example.


The Potential Dangers of Minds Getting Played

I clearly remember hearing about a new kind of game back in the late 90s- a friend handed me a magazine while I was playing Descent. The article detailed a new genre of game: Alternative Reality, in which the content of the game connected with the real world, and the gameplay was woven through physical space as much as game space. The article focused on a game called Majestic. Even before law school secured my youthful cynicism, I was already concerned about the potential for disaster with this game: trespassing, distracted operating of motor vehicles, unfortunate confusion with actual crime- by both police and criminals, etc. The game, and the genre, never really took off, and so a lot of the issues got pushed aside and ignored for a decade and a half.

Then Pokemon Go came out.

I) How do we Distinguish Alternative, Augmented, Virtual Realities from Plain Ol’ Boring Reality?

As Jerry “Tycho” Holkins has pointed out, when someone is experiencing a reality that differs from the reality that others are experiencing, we usually conclude that the singular experience of reality is a hallucination of some kind. So, inviting a parallel version of reality is a bit ambitious for a species that still has some fundamental questions about the nature of reality and the capacity to perceive it. But humans tend to be ambitious.

Metaphysics has tried for several millennia to explain what reality is, and epistemology and philosophy of mind (now backed up by nascent efforts of neurobiology) have tried to understand how the human mind interacts with whatever reality is. These kinds of questions seem tiresome and sophomoric because they seem to be trying to solve a problem that we don’t have. Fortunately for philosophers, scientists, and lawyers, humans are good at creating interesting problems.

II) Augmented Reality, Virtual Reality, Social Media, and AI: A Combination for Confusion

The biggest danger isn’t really just immersing the human mind in an alternative reality. Literature and media have been doing that since the first tools of imparting imagination were created. However, there have always been clear markers about the borders of fiction and reality: the edges of pages, the entrance to the theater, the “play” button. Since video games started making recognizable depictions of reality, political bodies have been concerned with the ability of the mind to keep the fiction of the game separate from reality.

Some games have recently made a deliberate effort to blur the distinction between the game and reality. In Batman: Arkham Asylum, the villain Scarecrow created a visual effect that looked to the player as though the game-machine itself was having technical problems. Metal Gear Solid villain Psycho Mantis had similar behaviors, interfering with the usable controller ports on the Playstation, reading memory cards to learn what other games the player plays, and giving the appearance of technical problems with the visual display.

The connection of games to social media platforms and profiles perforates some barriers between games and reality. These perforations tear wider the more the game uses them. How much more of a leap would it be for a game to read the social profiles of a player and allow a villain to make threats against the actual friends and family members of the player?

This trajectory, combined with increasingly better artificial intelligence programs that can learn and affect both game worlds and real worlds, creates the potential for some bizarre problems that will still seem like science fiction even after the first time we read an article reporting on why a 22 year old is dead after a cat walked across her keyboard while she got a soda. It may not be long until someone is arrested in real life for a murder committed in a game due to a bug or an AI program getting out of control. Or, perhaps even more likely, some hacker will make use of the obfuscated and blurred boundary between the game and reality to either commit a crime or frame someone for one.

III) Pokemon Go: Traps, Muggers, Molesters

If these possibilities seem like pure fantasy, we should remember that we’ve already seen some of the first iteration of the dangers of people trying to handle two realities simultaneously. Pokemon Go serves as an example the nature of the problems and the sometimes tragic stakes of not handling the problems well. There have been reports of muggers and sex offenders using the game to their own malicious ends, as well as reports of accidental deaths and car accidents from the simple carelessness of distracted (or overly-ambitious) players.

If you die while playing Pokemon Go, you die in real life.

IV) Philosophy is still relevant

In 1967, Phillipa Foote introduced the famous “Trolley Problem”: a hypothetical dilemma of choosing to allow a train (or trolley) to kill several people, or choosing instead to intervene and divert the train to kill only one person. The problem was meant to probe people’s moral intuitions, as the goal was not so much the answer to the problem but the justification for the choice. Many people outside of philosophy dismissed this hypothetical as irrelevant nonsense that showed how stupid and meaningless academic philosophy had become in the enlightened, advanced age of the 20th century. Then, in the early 21st century, automotive engineers and programmers confronted the exact problem in determining how to program self-driving cars when confronted with similar dilemmas.

The story for the philosophical field of Aesthetics (the area concerned with understanding art and beauty) is similar. In the coming years, the interactive entertainment media industry will have to confront problems of understanding the boundaries of how, when, and why fiction is experienced. The analysis of essays on the use of the fourth wall and meta-humor will be important to cutting-edge games looking to balance novel thrills with consumer safety.

V) Solutions: Design for Safety, Be Helpful

The law can make some efforts to protect the public, but it’s almost always going to be reactive, not proactive, in these matters.

Developers should design for Audience Meta-Awareness. Yes, the much-touted quality of immersion adds fun to the experience. However, it is necessary to provide safety outlets for that immersion. The game creates a space- players need to always be able to see the door to the space and get out of it. They need to be clear about when they are in that space and when they are not. Games that actively seek out players to update them about the game undermine that distinction. Games that don’t allow players to put down the game, or don’t allow players to know when they have put down the game, are looking for problems.

The community can create safety nets, as we saw with Pokemon Go players acting as safety guards in potentially dangerous scenarios. However, if we’ve learned anything from the internet, it’s that groups of people knit together by cyberspace are not always a recipe for safety and well-being. Still, the more that games resemble mind-altering drug experiences, the more important it is to have a sober friend nearby.


4/14/17 UPDATE: One of my favorite web series on game design, Extra Credits, apparently also thinks this is an interesting subject. They provide a lot of examples of the concepts I addressed.


[Part 4] StarCraft II in the World: How Korean E-Sports Power Makes Us “Foreigners”

All of these approaches are played out in answering the oft-asked question: “Why is South Korea so good at e-Sports?”
The answer begins with the Asian Economic Crisis of 1997. After a devastating economic collapse, governments like South Korea’s were faced with questions of rebuilding and moving forward. South Korea invested heavily in telecommunications infrastructure. As the economy steadily rebounded, one small business plan that grew around a strong telecommunications infrastructure was computer gaming cafes. These became so numerous and omnipresent that they became a major element in the culture of young people growing up in South Korea around 2000. As the culture integrated computer gaming as an important social medium, the quality of players grew. In the late 90s, there were not as many games that lent themselves to the kind of competitive, head-to-head, high-speed gameplay that fit the cultural need of young people gathered in a social setting, but StarCraft was a near-perfect fit. Just as Brazilian children gravitate towards soccer fields and so many American children hang out near basketball courts, sizable portions of Korean children spent free time at gaming cafes. It follows quite obviously that spending time practicing and learning leads to excellence. That excellence is so dramatic that it is even noted in the parlance of StarCraft II tournaments: competitors are either Korean or “Foreigners.”

[Of course, there are other factors that led to S. Korean unique dominance in e-sports—Japan’s anti-gambling laws undermined the growth of a competitive gaming scene, the US was sold on consoles like Xbox and PS2 over computer gaming, etc.]

There is a simple analysis of the story of South Korea’s success in e-Sports: Economics, legal possibility, and technological availability lead to the creation of a new infrastructure (Terran). This infrastructure was integrated into the culture, leading to the development of a specific kind of power (Zerg). The path of past events created a direction for power to be used (Protoss).

There is so much more to talk about in StarCraft II. Its rich story is filled with characters and ideas, and the storytelling and gameplay add depth and perspective to further enhance the potential subjects of discussion. For the considerations on power, there is a takeaway lesson about understanding and recognizing the inorganic structures and organic cultures that produce certain types of power, and realizing the direction that power wants to go. Whether it’s telecommunications, biotechnology, energy management, or sports and entertainment, these points are relevant and recognizable. Future outcomes will depend on how we make our systems and culture, and how we allow our creations to shape us.

Employer Facebook Checks: How the Law Struggles with Culture and Ignores Metaphysics

Question of privacy in cyberspace cover a vast range of applications. One that I find interesting is the use of social media as a tool by potential employers to research prospective employees. This is interesting because it is at an intersection of cultural, technology, law, and metaphysics.

It is increasingly common for employers to check on a prospective employee’s Facebook page (or other social media). I like to use the case study of Stacy Snyder in this NYTonline article:

The issue is that a student-teacher was dismissed over a photo on her MySpace (that dates the example a bit, eh?) that was captioned “Drunken Pirate.” This situation becomes the image of concern: an employer delving into your personal (yet published) photo album to look for objectionable material.

Let me divide up the issues:

1) The legal and/or cultural claim to privacy. Before Facebook or MySpace, it would be extraordinary for an employer to ask to see photos from your latest party as part of the application process (barring government security clearance checks). Although social media has allowed us to share such personal material with a wider range of friends, we are not culturally comfortable simply surrendering previously private/personal material to the entire public sphere.

2) Context is everything. Bill Waterson’s iconic character, the rascally 2nd-grader Calvin, once explained that people are wrong to assert that “photos never lie,” for, in fact, all they do is lie. To illustrate, Calvin clears one area of his room and puts on a tie to have himself photographed as a clean, tidy young boy (he is normally dressed in a t-shirt and has a notoriously messy bedroom). So it may be argued with Facebook photos, Tweets, etc: Can a single snapshot, sentence, or post represent an individual- even partially? Can it be completely incorrect? Without further explanation, how badly can it be misinterpreted? This claim speaks not only to the protection of the poster, but also raises the question of whether investigating an applicant’s social media is truly helpful in obtaining accurate data about the applicant. A related issue here is the notion of Performance Identity online (see: Life on the Screen by Sherry Turkle). Many posts and photos may be uploaded not as a reflection of actual identity, but as an effort to entertain or amuse a particular audience.

3) The Metaphysical puzzles of being and identity over time. One of the core points of the NYTonline article linked above is that the internet makes possible the storage of everything we say or do- FOREVER. One question is whether applicants ought to be judged by high school or college photos or posts. Indeed, the question is founded on an ancient metaphysical quandary: what is the relationship with one’s self over time? We have a cultural concept of “not being the same person” at age 15 as at age 30. Yet right now, many 30 year old job applicants could be in the position to defend the digital traces left by their 15 year old selves.

The final point to note here is that Facebook was not designed to be a massive social media platform through which employers scouted and screened applicants. It was a way for college (and later high school) students to communicate and make limited broadcasts to a select audience. It was a kid’s toy, really. To me, it still is- I think that’s why my generation sometimes feels weird that our parents have Facebook profiles. The platform was never made for “grown-ups” or “grown-up things.” That was an accident, and treating it otherwise is a mistake.