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Tuesday, January 12, 2016

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Chanson de Roland

A law professor of mine, a professor of property, remarked one day in class that the common law and the later statutory means of determining rights in property work pretty well, once the origin of property rights had been established, but that the common law and statutory law often don't effectively determine the origin of rights in property, that is, they don't often don't provide an answer to how property rights originally arose in a person.

However, the law isn't always so inept at deciding who originally gets property rights. In one area of the law of intangible property, intellectual property (IP), the law does have principles for how property rights arise and are determine in a person, which is why my brothers at Taylor Wessing could have said more about how consumers not having rights in their personal data is a radical deviation from the principles of how IP rights arise in a person. In the law of IP, generally speaking, it is the author or inventor who holds the rights in the intellectual property that he creates. All of the personal data that the Editor, Mr. Jenkins, has reported on, supra, which our smart devices collect about us, is personal data that each of us authors or invents or creates with the acts of our lives. Neither the smart devices or their makers or those who collect, store, and distribute our personal data from those devices create or author or invent even the slightest bit of our personal data, so under traditional principles of IP, our respective personal data should belong solely to each of us, as its authors. Or we should at least have some controlling property interest in it that allows us to determine its use, disposition, and control.

Yet somehow what should be our property rights in our very valuable personal data ends up being solely and exclusively the property, not of each of us, its respective authors, but is deemed to be the sole property of those who collect it through our smart devices. How did that happen? How did the law make such a radical departure from traditional principles of IP so that our valuable and intimate personal data belongs to someone else, to the collectors rather than the authors? Well, the answer to that is simple: Because of the great wealth involved in collecting our personal information, the origin of property rights in our personal data were determined by a sort of political conquest, where our courts and our legislatures abetted the new Conquistadors, the data collectors, such as Google, Facebook, the data aggregators, device makers, app makers, etc. in cashing-out by conquering us and seizing our property rights in our personal data, much like we seized America from Native Americans. But this time, we are the Indians.

Now, I don't mean to compare the legalized theft of our personal property to the deprivations and enormities suffered by Native Americans, for it is not even close. Yet, in a very real sense, we are all on the reservation, while the Conquistadors, the Googles and Facebooks, et al., enjoy the rich wealth of our personal data, based on nothing more than the legal equivalent of a kind of Manifest Destiny, as engineered by our federal government, which is suppose to represent us and not them, but which in reality represent them and not us.

Today, this nearly ubiquitous expropriation of our personal data merely costs each of us a large sum of money and our privacy, exposing the intimate details of our lives to strangers, the collectors of our personal data, for their profits. But if there ever comes the easily imagined day when our government descends into despotism, the pervasive, indeed ubiquitous, collection of our personal data will costs us our liberty as well as our money and our privacy.

Gorge Orwell, notwithstanding his wisdom and foresight in 1984, hadn’t even a clue.

George

Roland:

Thanks for your comprehensive and insightful comments. I agree. It doesn't have to be this way. It shouldn't be this way. At a minimum, consumers should be compensated for the use of their personal property. And, there must be effective product and service alternatives, and not the current take-it-or-leave situation where consumers give up all control of their personal data.

I've had enough conversations on Twitter to know that I am not the only one concerned. Others are equally concerned.

George
Editor
http://ivebeenmugged.typepad.com

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