Re-Reifying Data

Abstract:     
There's a war on between those who view digital technology as a reason to expand intellectual property law and those who oppose this expansion. One front in the war is technological: the pro-expansionists enclose their products in restrictive code, which the anti-expansionists circumvent and hack. A second is legislative: the pro-expansionists seek extended copyright duration, favorable changes to contract law, and other new legal entitlements, while the anti-expansionists lobby for the opposite. And a third front is a combination of the first two: it is technolegical. On this battlefield, the pro-expansionists use the law to fortify their technological protections. But here the anti-expansionists merely play defense - resisting, but offering few affirmative technolegical measures of their own. This article gives the anti-expansionists a new technolegical weapon for their arsenal. Using the battle over database rights as a case study, it first explains how the architecture of digital technology, if left unregulated, can obviate legal entitlements in the market for databases and other information goods. It then explores how legal regulation can counteract this effect and ensure that the public ordering of intellectual property law continues to have meaning. Finally, it settles on one regulatory mechanism: requiring information producers to fashion a technologically unfettered (re-reified) version of their goods, which the public then holds hostage against overly restrictive architectural constraints.

Keywords: intellectual property, database, copyright, technology

JEL Classifications: K19, K30, O33, O34, O38

Accepted Paper Series