Cleveland State Law Review
Intellectual property, Propertization, Internet
This Symposium focuses in part on the ideas of Margaret Radin as a point of departure for the various contributions. A key part of the analysis includes the process she calls propertization in the context of intellectual property rules and the Internet. The approach taken in this introductory essay is twofold. The first part presents some key points raised by the Symposium contributors. Of course, that overview is necessarily incomplete, because the contributions represent a rich group of analyses about vital concerns relating to how our legal system should respond to the challenge of the Internet and information systems through the application and development of doctrines relating to areas of property and contract.
The general themes found in these contributions relate to the effects of what we are experiencing. This includes issues such as the impact on traditional legal doctrines of the new power of information acquisition, data-mining, privacy invasion and protection. A core question is who should be allowed to generate or possess access to information about people who never authorized its collection and use. As Radin and other contributors suggest, resolving such questions in the context of law requires careful thinking about the application of doctrinal areas involving property, contract, the rules of competitive behavior, and constitutional law.
Following the descriptive overview of contributors' analyses, I offer some thoughts about the context of what is being produced as a result of the emergence of the Internet and associated information capabilities. This is done through a consideration of the economic and social dynamics of the "event" we are experiencing, one I describe as a Kondratiev Wave whereby a society undergoes a shift in the basic nature of its economic system in ways so fundamental that the social and political context is also transformed. Also discussed are the impacts of information capabilities on government, business and individuals, and the role of the judiciary in responding to the rapidly changing environment. That judicial role is argued to be one that should seek to preserve the best qualities of the existing legal order and avoid the use of ill-considered and unnecessary doctrines to what are seen as new contexts.
Throughout the Symposium can be found the attempt to answer key questions. These include considering why we should care about the Internet and intellectual property and about what is allowed to be propertized. Part of the discourse raises concerns about where the lines should be drawn as to how economic and governmental activities are conducted as a result of exponentially expanded information capabilities and which behaviors should be recognized as valid or invalid.
David R. Barnhizer, Propertization, Contract, Competition, and Communication: Law's Struggle to Adapt to the Transformative Powers of the Internet, 54 Cleveland State Law Review 1 (2006)