Who Owns Your Emails, Blog Posts, or FaceBook Pages? How About You?
posted by Deven Desai
Dan’s recent post about David Lat and Facebook and Bruce Boyden’s post about the possible destruction of Nabokov’s unpublished novel raise some questions. Who owns your emails, blog entries, FaceBook pages, and so on? What about when you die? Does your family get the material? What if you wanted it destroyed? What if one of your email accounts was one that you did not want your family to see? In general is there a theoretical explanation for whatever position one may take on these questions?
Of course there is (this blog is run by law professors after all).
My forthcoming article Property, Persona, and Preservation examines these questions and argues that the nature of the attention economy in conjunction with labor-based and persona-based property theories support the position that in life a creator has strong claims for control over her intangible creations. But given the way in which such material is infrastructure and can produce spillovers for further creation, control after death has less theoretical support.
Here is part of the abstract:
The intellectual property system has fostered many debates including recent ones regarding how the system affects access to knowledge. Yet, before one can access, one must preserve. Two interconnected problems posed by the growth of online creation illustrate the problem. First, unlike analog creations, important digital creations such as emails and word processed documents are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such. Service providers and software makers terminate or deny access to people’s digital property all the time. In addition, when one dies, some service providers refuse to grant heirs access to this property. The uneven and unclear management of these creations means that society will lose access to perhaps the greatest chronicling of human experience ever. Accordingly, this paper investigates and sets forth the theoretical foundations to explain why and how society should preserve this property. In so doing the Paper finds that a second problem, which can be understood as one of control, arises.
This Paper is the first in a series of works aimed at investigating the nature and extent of control one may have and/or exert over a work. As such this Paper begins the project by examining the normative theories behind creators’, heirs’ and society’s interests in the works. All three groups have interests in preservation, but the basis for the claims differs. In addition, an examination of the theoretical basis for these claims shows that the nature of the attention economy in conjunction with labor-based and persona-based property theories support the position that in life a creator has strong claims for control over her intangible creations. Yet, the paper finds that historical and literary theory combined with recent economic theory as advanced by Professors Brett Frischmann and Mark Lemley regarding spillovers and the positive externalities generated by access to ideas and information reveal two points. First, these views support the need for better preservation of digital, intellectual property insofar as they are infrastructure and have the potential for spillover effects. Second, although the creator may be best placed to manage and exert control of the works at issue, once the creator dies literary, historical, and economic theory show that the claims for control diminish if not vanish. The explication and implications of this second point are explored elsewhere. This Paper lays the groundwork for seeing that creators may need and have powerful claims for access and control over their works but that these same claims are necessarily limited by an understanding of the nature of creation and creative systems. The dividing line falls between life and death. The life and death distinction that this Paper offers seeks to balance creators’ interests in control over a work and society’s interests in fostering later expressions and creations of new works. This Paper examines the life side of the line.
Image: WikiCommons
License: Public Domain
Cross-posted at Madisonian
March 7, 2008 at 12:00 pm
Posted in: Intellectual Property
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Responses (4)
Eric Goldman - March 7, 2008 at 2:05 pm
This issue also arises in the context of virtual worlds. Of course, the term “ownership” is squirrely here because it brings a set of assumptions and norms, not all of which may be intended. The real challenge here is that even if the heirs own the copyrights in digital assets created by the decedent, they may not be able to get access to the actual bits. But does access to the “chattel” necessarily need to follow from ownership of the intangibles stored therein? Eric.
Deven - March 7, 2008 at 2:27 pm
Eric
Deadly accurate observations. The paper explicitly carves out some of the virtual world issues though those are implicated. Ownership has the problems you note. Part of the goal is to look at the property arguments try to sort out a reasonable way to limit the interests in intangibles. I think you are getting at one of the key questions in the paper regarding heirs’ access. Take a read as I would love to know what you think about my approach. But it seems that the author should be able to choose whether to preserve or destroy the thing (I came at as preservation but Lior Strahilevitz’s Right to Destroy is almost a mirror argument from the other view, and I show that in the paper). If the author wants to thing to go to the heirs, so be it. The system as it is does not seem to allow for that type of control. That is an error in my view.
Matthew Sag - March 9, 2008 at 9:29 am
Deven,
I began reading your paper after downloading it from ssrn, but when I reached the legend proclaiming “DRAFT – DO NOT CITE OR CIRCULATE WITHOUT PERMISSION” I decided to stop. It was, I concluded, better to remain ignorant than to risk obtaining knowledge that I could not even cite too in my own scholarship.
These legends are the academic equivalent of the Major League Baseball warnings – and they make about as much sense.
If I had been able to read you article I might now observe some irony between your general theme and the application of the odious “DRAFT – DO NOT CITE OR CIRCULATE WITHOUT PERMISSION”. However, as I feared such an observation might amount to a citation, I decided to merely assume the contents of your paper and write this comment without the benefit of having read the paper.
Please feel free to cite and circulate this comment.
Matthew Sag
Deven - March 9, 2008 at 2:07 pm
Matt
Good to hear from you even in snark master mode. Still you make a fine point. That was a remnant from the working paper status where I think it makes sense. I will update the version on there.
One thing some folks have been discussing is when does SSRN work well for working papers. Put differently, is SSRN becoming a place where only fully finished pieces are circulated?
Deven
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