72 Am. U. L. Rev. 829 (2023).

Download PDF Here!

Abstract

In this, the Information Age, people and businesses depend on data. From your family photos to Google’s search index, data has become one of society’s most important resources. But there is a gaping hole in the law’s treatment of data. If someone destroys your car, they have committed the tort of conversion, and the law gives a remedy. But if someone deletes your data, it is far from clear that they have done you a legally actionable wrong. If you are lucky, and the data was stored on your own computer, you may be able to sue them for trespass to a tangible chattel. But property law does not recognize the intangible data itself as a thing that can be impaired or converted, even though it is the data that you care about, and not the medium on which it is stored. It’s time to fix that.

This Article proposes, explains, and defends a system of property rights in data. Under our theory, a person has possession of data when they control at least one copy of the data. A person who interferes with that possession can be liable, just as they can be liable for interference with possession of real property and tangible personal property. This treatment of data as an intangible thing that is instantiated in tangible copies coheres with the law’s treatment of information protected by intellectual property law. But importantly, it does not constitute an expansive, new intellectual property right of the sort that scholars have warned against. Instead, a regime of data property fits comfortably into existing personal-property law, restoring a balanced and even treatment of the different kinds of things that matter for people’s lives and livelihoods.

* Tessler Family Professor of Digital and Information Law, Cornell Law School and Cornell Tech.

** Professor of Law, Brooklyn Law School. The authors served as Advisors to the joint American Law Institute / European Law Institute project on Principles for a Data Economy. While this Article emerged from our conversations about the conceptual issues involved, it reflects our opinions only, and not necessarily the views of the ALI, the ELI, the reporters, or the other participants. We presented earlier versions of this Article to the Nebrooklyn Law and Technology Workshop, the Private Law Workshop at Harvard Law School, the Intellectual Property Scholars Conference, the NYU Engelberg Tri-State Region IP Workshop, the Seton Hall Colloquium on Law and the Technologies of Life, and the Information Society Project at Yale Law School, and to faculty workshops at Brooklyn Law School, the University of Colorado Boulder School of Law, the South Texas College of Law, and the University of Minnesota Law School. Our thanks to the organizers and participants, and to Aislinn Black, John Goldberg, Jordan Khorshad, Frank Pasquale, James Penner, Henry Smith, Lawrence Solum, and Bryttni Yi. This Article may be freely reused under the terms of the Creative Commons Attribution 4.0 International License, https://creativecommons.org/licenses/by/4.0 [https://perma.cc/4Q4T-3SHM].