"Information Tangibility"

Michigan Law Authors
Publish Date
Economics, Law and Intellectual Property: Seeking Strategies for Research and Teaching in a Developing Field
Publication Type
Book Chapter

Information is being assimilated to the physical world. Digital information is a physical state of a hard drive; genetic information is a chemical molecule. This assimilation of information to the physical world is proving useful for those who want to expand the scope of information property. One expedient is just to find that more things count as tangible objects in which information can be fixed; e.g., determining that when information exists in RAM it is a “copy” for purposes of copyright. A second expedient is getting people to accept real estate analogies, with their connotations (at least to lay people) of absolute control. A prime example here is “cybersquatting”; another is the prevalent analogy (inscribed in the DMCA legislative history) between using information without permission and stealing a physical object. Finally, the latest expedient is simply to redescribe the information as a physical object, or to collapse the distinction between information and physical object. This expedient is seen in a range of cases, described in this paper, including the patenting of computer programs, the patenting of genes and DNA fragments, and the use of trespass to chattels doctrine to protect databases. Information propertization has traditionally been considered a matter of balancing: determining the right amount of monopolization, with the understanding that there is always a necessarily uncontrolled public domain. The strategy of assimilating information to the realm of physical objects and to physical property enables proponents of prop-ertization to bypass this traditional balancing rhetoric and to expand the scope of propertization without having to argue explicitly about the benefits of control on the one hand versus the benefits of free competition and flow of information on the other.

The collapse of the distinction between information and physical objects is also having an effect on contract. Traditionally a contract has been conceived of as a text about a transaction in goods or services, where the goods or services are a separate entity from the text. In the networked environment, the terms under which goods or services are distributed are becoming indistinguishable from the goods or services themselves, and the distinction between goods and services is itself collapsing. Terms are part of the product/service, not a text about it. Terms propagate along a chain of distribution and the proponent of the terms intends them to bind everyone who comes into possession of the product/service. Moreover, terms become technological, rather than textual, constraints when digital rights management systems are implemented. These developments are further problematizing the traditional conception of contract as based on voluntary agreement on textual terms.

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