Abstract
Information is being assimilated to the physical world. Digital information is a physical state of a hard drive; genetic information is a chemical molecule. This assimilation of information to the physical world is proving useful for those who want to expand the scope of information property. One expedient is just to find that more things count as tangible objects in which information can be fixed; e.g., determining that when information exists in RAM it is a “copy” for purposes of copyright. A second expedient is getting people to accept real estate analogies, with their connotations (at least to lay people) of absolute control. A prime example here is “cybersquatting”; another is the prevalent analogy (inscribed in the DMCA legislative history) between using information without permission and stealing a physical object. Finally, the latest expedient is simply to redescribe the information as a physical object, or to collapse the distinction between information and physical object. This expedient is seen in a range of cases, described in this paper, including the patenting of computer programs, the patenting of genes and DNA fragments, and the use of trespass to chattels doctrine to protect databases. Information propertization has traditionally been considered a matter of balancing: determining the right amount of monopolization, with the understanding that there is always a necessarily uncontrolled public domain. The strategy of assimilating information to the realm of physical objects and to physical property enables proponents of prop-ertization to bypass this traditional balancing rhetoric and to expand the scope of propertization without having to argue explicitly about the benefits of control on the one hand versus the benefits of free competition and flow of information on the other.
The collapse of the distinction between information and physical objects is also having an effect on contract. Traditionally a contract has been conceived of as a text about a transaction in goods or services, where the goods or services are a separate entity from the text. In the networked environment, the terms under which goods or services are distributed are becoming indistinguishable from the goods or services themselves, and the distinction between goods and services is itself collapsing. Terms are part of the product/service, not a text about it. Terms propagate along a chain of distribution and the proponent of the terms intends them to bind everyone who comes into possession of the product/service. Moreover, terms become technological, rather than textual, constraints when digital rights management systems are implemented. These developments are further problematizing the traditional conception of contract as based on voluntary agreement on textual terms.
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Refernces
Testimony of Jack Valenti, President of the Motion Picture Association of America, at a Congressional hearing entitled “Home Recording of Copyrighted Works” before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary of the House of Representatives dated April 12–14, June 24, August 11, September 22–23, 1982
Richard Rorty, Philosophy and the Mirror of Nature (Princeton University Press, 1981).
See Margaret Jane Radin, Reinterpreting Property (University of Chicago Press 1994);
Margaret Jane Radin, Contested Commodities (Harvard University Press 1996).
Abraham Drassinower, “Labour and Intersubjectivity: Notes on the Natural Law of Copyright”, available at http://papers.ssrn.com/sol3/papers.cfs?abstract_id=275470.
See Reich, “The New Property”, 73 Yale L.J. 733 (1964).
See National Socialist Party v. Skokie, 434 U.S. 1327 (1977); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
See generally Ove Granstrand, The Economics and Management of Intellectual Property, Edward Elgar Publishing Ltd. (1999) (describing the “dispossession impossibility” feature of information that importantly distinguishes knowledge from physical property, therefore limiting the application of traditional property concepts to possession of knowledge).
See William W. Fisher III, “The Growth of Intellectual Property: A History of Ownership of Ideas in the United States”, in Eigentum im Internationalen Vergleich (Vandenhoeck and Ruprecht, 1999), 265–91.
Section-By-Section Analysis of H.R. 2281, House Committee on the Judiciary, 105th Congress (Comm. Print 1998)
See, e.g., Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316 (9th Cir. 1998). The result is that speculation in domain names corresponding to words in trademarks makes you a criminal, but speculation in domain names that cannot be trademarks because they are generic (e.g., cars.com) makes you an entrepreneur. See, e.g., www.greatdomains.com.
Eldred v. Ashcroft, pending, case documents available at http://eldred.cc/.
South Central Bell Telephone C. v. Barthelemy, 643 So.2d 1240 (La. 1994).
Perhaps the court was adhering to some interesting “precedent”. Legend has it that when a politician inquired as to the usefulness of 19th-century scientist Michael Faraday’s pioneering findings on electricity and magnetism, Faraday responded: “Why sir, there is the probability that you will soon he able to tax it!” Unfortunately, the remark is probably apocryphal. See “Who Said That?”, Physics World (2002), at .
See South Central Bell, supra note 12, at 1246–1247.
Feist Publications v. Rural Telephone Service, Co., 499 U.S. 340 (1991).
See Yochai Benkler, “Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information”, 15 Berkeley Tech. L.J. 535 (2000).
See eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (2000); v. Verio, Inc., 126 F. Supp. 2d 238 (2000).
Though the court did not specifically adopt this analogy, eBay claimed the virtual trespass was equivalent to sending “an army of 100,000 robots a day to check the prices in a competitor’s store”. See eBay, supra note 17.
Id. Although the tort of trespass to chattels requires physical harm to the chattel, the court in this case thought it sufficed for eBay to claim that if Bidder’s Edge could get away with its crawling, other firms would follow suit, and if that happened, “eBay would suffer irreparable harm from reduced system performance, system unavailability, or data losses”. Id. at 1066.
See generally Dan L. Burk, “The Trouble With Trespass”, 3 J. Small & Emerging Bus. L. 1 (1998), available at http://www.isc.umn.edu/research/papers/trespass-ed2.pdf
See eBay, supra note 17, at 1073.
See Feist, supra note 15.
17 U.S.C. §102(a). (“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device”.)
See, e.g., MAI Sys. Corp. v. Peak Computer, 991 F.2d 511 (9th Cir. 1993); Jane C. Gins-burg, “Putting Cars on the ‘Information Superhighway’: Authors, Exploiters, and Copyright in Cyberspace”, 95 Colum. L. Rev. 1466, 1476 (1995); U.S. Copyright Office, Digital Millenium Copyright Act, Section 104 report (2001), available at http://www.loc.gov/copyright/reports/studies/dmca/sec-104-report-vol-1.pdf.
See Neil Netanel and Niva Elkin-Koren, Commodification of Information, Kluwer Information Law Series (2002).
See Brandir Int’l, Inc. v. Cascade Pacific Lumber Co., 834 F.2d 1142 (2d Cir. 1987) (bike rack held not copyrighted).
See, e.g., Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1249 (3d Cir. 1983) (quoting the definition of literary work in 17 U.S.C. § 101—which includes expression comprised of ‘numbers, or other ... numerical symbols or indicia’—and holding object and source code to be literary works).
In re Alappat, 33 F.3d 1526, 1566–67 (Fed. Cir. 1994) (Archer, C.J., concurring and dissenting).
See, e.g., Patent and Trademark Office, United States Department of Commerce, Examination Guidelines for Computer-Related Inventions: Final Version, available at http://www.uspto.gov/web/offices/pac/dapp/oppd/pdf/ciig.pdf (distinguishing between sometimes patentable “functional descriptive” subject matter and categorically unpatentable “nonfunctional descriptive” subject matter).
See, e.g., Computer Assocs. Int’l, Inc. v. Altai, Inc., 1992 U.S. App. LEXIS 14305 (1992).
See Universal City Studios, Inc. v. Corky, 273 F.3d 429, 445–448 (2d Cir. 2001) (“Communication does not lose constitutional protection as “speech” simply because it is expressed in the language of computer code”.).
Sometimes commercial free speech wins against claimed individual property rights: see U.S. West v. Federal Communications Commission, 182 F.3d 1224 (10th Cir. 1999); but often propertization wins against claimed individual free-speech rights: see Corley, supra note 31.
It has been argued that the two systems (freedom of information, information propertization) are harmonized by copyright’s fair use doctrine, or by copyright’s idea/expression dichotomy. I don’t think these doctrines solve the conflict, but I will not argue about them right now. A lot of further thought is needed in this area.
Diamond v. Diehr, 450 U.S. 175 (1981).
See In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994).
State Street Bank & Trust, Co. v. Signature Financial Group, 149 F.3d 1368 (Fed. Cir. 1998); AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999).
Examination Guidelines for Computer-Related Inventions, 61 F.R. 7478.
See, e.g., Amgen, Inc. v. Chugai Pharm. Co., 927 F.2d 1200, 1200 (Fed. Cir. 1991) (“A gene is a chemical compound, albeit a complex one”.).
Rebecca Eisenberg, “Re-Examining The Role Of Patents In Appropriating The Value Of DNA Sequences”, 49 Emory L.J. 783, 784–85 (2000)
Margaret Jane Radin, “Humans, Computers, and Binding Commitment”, 75 Ind. L.J. 1125 (2000).
This will work for many run-of-the-mill transactions. Sometimes, however, human intervention will be needed, and it may be difficult to program computers to “know” when to call in a human. See id.
In light of the blurring of the distinction between products and services online, I will use the term product to cover both.
Protecting DRMSs is the purpose of the Digital Millennium Copyright Act, and it is this grant of protection beyond copyright that is engendering a lot of complaint by law professors. See Pamela Samuelson, “Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised”, 14 Berkeley Tech. L. J. 519 (1999).
See Jane K. Winn, “Making XML Pay: Revising Existing Electronic Payments Law to Accommodate Innovation”, 53 SMU L. Rev., 1477 1480–81 (2000).
There are pressures that I think will lead to greater standardization; but greater customization is also possible. See Margaret Jane Radin, “Online Standardization and the Integration of Text and Machine”, 70 Fordham L. Rev. 1125 (2002).
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Radin, M.J. (2003). Information Tangibility. In: Granstrand, O. (eds) Economics, Law and Intellectual Property. Springer, Boston, MA. https://doi.org/10.1007/978-1-4757-3750-9_18
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