Data Property

53 Pages Posted: 21 Oct 2022

See all articles by James Grimmelmann

James Grimmelmann

Cornell Law School; Cornell Tech

Christina Mulligan

Brooklyn Law School

Date Written: October 18, 2022

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, that is 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. On 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.

Keywords: property, digital property

JEL Classification: K00

Suggested Citation

Grimmelmann, James and Grimmelmann, James and Mulligan, Christina, Data Property (October 18, 2022). American University Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4251825 or http://dx.doi.org/10.2139/ssrn.4251825

James Grimmelmann (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Cornell Tech ( email )

2 West Loop Road
New York, NY 10044
United States

Christina Mulligan

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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