Who Owns Your Emails, Blog Posts, or FaceBook Pages? How About You?

quill_penDan Solove’s recent post about David Lat and Facebook and Bruce Boyden’s post about the possible destruction of Nabokov’s unpublished novel raise some questions. Who owns your emails, blog entries, FaceBook pages, and so on? What about when you die? Does your family get the material? What if you wanted it destroyed? What if one of your email accounts was one that you did not want your family to see? In general is there a theoretical explanation for whatever position one may take on these questions?
Of course there is (this blog is run by law professors after all).

My forthcoming article Property, Persona, and Preservation examines these questions and argues that the nature of the attention economy in conjunction with labor-based and persona-based property theories support the position that in life a creator has strong claims for control over her intangible creations. But given the way in which such material is infrastructure and can produce spillovers for further creation, control after death has less theoretical support.

Here is the abstract:

The intellectual property system has fostered many debates including recent ones regarding how the system affects access to knowledge. Yet, before one can access, one must preserve. Two interconnected problems posed by the growth of online creation illustrate the problem. First, unlike analog creations, important digital creations such as emails and word processed documents are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such. Service providers and software makers terminate or deny access to people’s digital property all the time. In addition, when one dies, some service providers refuse to grant heirs access to this property. The uneven and unclear management of these creations means that society will lose access to perhaps the greatest chronicling of human experience ever. Accordingly, this paper investigates and sets forth the theoretical foundations to explain why and how society should preserve this property. In so doing the Paper finds that a second problem, which can be understood as one of control, arises.

This Paper is the first in a series of works aimed at investigating the nature and extent of control one may have and/or exert over a work. As such this Paper begins the project by examining the normative theories behind creators’, heirs’ and society’s interests in the works. All three groups have interests in preservation, but the basis for the claims differs. In addition, an examination of the theoretical basis for these claims shows that the nature of the attention economy in conjunction with labor-based and persona-based property theories support the position that in life a creator has strong claims for control over her intangible creations. Yet, the paper finds that historical and literary theory combined with recent economic theory as advanced by Professors Brett Frischmann and Mark Lemley regarding spillovers and the positive externalities generated by access to ideas and information reveal two points. First, these views support the need for better preservation of digital, intellectual property insofar as they are infrastructure and have the potential for spillover effects. Second, although the creator may be best placed to manage and exert control of the works at issue, once the creator dies literary, historical, and economic theory show that the claims for control diminish if not vanish. The explication and implications of this second point are explored elsewhere. This Paper lays the groundwork for seeing that creators may need and have powerful claims for access and control over their works but that these same claims are necessarily limited by an understanding of the nature of creation and creative systems. The dividing line falls between life and death. The life and death distinction that this Paper offers seeks to balance creators’ interests in control over a work and society’s interests in fostering later expressions and creations of new works. This Paper examines the life side of the line.

Cross posted at Concurring Opinons

2 thoughts on “Who Owns Your Emails, Blog Posts, or FaceBook Pages? How About You?

  1. Deven,

    I began reading your paper after downloading it from ssrn, but when I reached the legend proclaiming “DRAFT – DO NOT CITE OR CIRCULATE WITHOUT PERMISSION” I decided to stop. It was, I concluded, better to remain ignorant than to risk obtaining knowledge that I could not even cite too in my own scholarship.

    These legends are the academic equivalent of the Major League Baseball warnings – and they make about as much sense.

    If I had been able to read you article I might now observe some irony between your general theme and the application of the odious “DRAFT – DO NOT CITE OR CIRCULATE WITHOUT PERMISSION”. However, as I feared such an observation might amount to a citation, I decided to merely assume the contents of your paper and write this comment without the benefit of having read it.

    Please feel free to cite and circulate this comment.

    Matthew Sag

  2. Matt

    Good to hear from you even in snark master mode. Still you make a fine point. That was a remnant from the working paper status where I think it makes sense. I will update the version on there.

    One thing some folks have been discussing is when does SSRN work well for working papers. Put differently, is SSRN becoming a place where only fully finished pieces are circulated?

    Deven

Comments are closed.