Big Data is Not Big Oil: The Role of Analogy in the Law of New Technologies
Georgetown Law Journal Online, Forthcoming
20 Pages Posted: 15 Oct 2018 Last revised: 27 Nov 2018
Date Written: September 20, 2018
Many commentators on the information economy have casually and uncritically compared big data to big oil. Admittedly, data, like oil, is valuable, and both power the modern economy. But to extend the analogy any further as a matter of law and policy is unwise.
This Essay has two theses:
(1) Data as the oil of the information economy is a bad analogy as a matter of logic, and
(2) data as oil is a misleading and dangerous analogy as applied to law and policy, because it obscures key features of the underling resource and its function in the economy.
Unlike oil, the source of data can be traced to individual people, a fact which demands moral and legal consideration. The Essay goes on to describe and evaluate analogies between big data and intellectual property, personhood, and salvage. This illustrates the promise and potential of alternate analogical approaches to big data.
Keywords: analogy, rhetoric, big data, privacy, private law, norms
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