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70 Hastings L.J. 1 (2018-2019)

handle is hein.journals/hastlj70 and id is 1 raw text is: Articles No One Owns Data LOTHAR DETERMANN Businesses, policy makers, and scholars are calling for property rights in data. They currently focus on the vast amounts of data generated by connected cars, industrial machines, artificial intelligence, toys and other devices on the Internet of Things (IoT). This data is personal to numerous parties who are associated with the connected device, and there are many others are also interested in this data. Various parties are actively staking their claims to data, as they are mining the fuel of the digital economy. Stakeholders in digital markets often frame claims, negotiations and controversies regarding data access as one of ownership. Businesses regularly assert and demand that they own data. Individual data subjects also assume that they own data about themselves. Policy makers and scholars focus on how to redistribute ownership rights to data. Yet, upon closer review, it is very questionable whether data is or should be subject to any property rights. This Article unambiguously answers the question in the negative, both with respect to existing law andfuture lawmaking in the United States and the European Union, jurisdictions with notably divergent attitudes to privacy, property and individualfreedoms. Data as such, that is, the content of information, exists conceptually separatefrom works of authorship and databases (which can be subject to intellectual property rights), physical embodiments of information (data on a computer chip, which can be subject to personal property rights) and physical objects or intangible items to which information relates (a dangerous malfunctioning vehicle to which the warnings on road markings or a computer chip relate). Lawmakers have granted property rights to different persons regarding works of authorship, databases, land, and chattels to incentivize investments and improvements in such items. However, this purpose does not exist with respect to data. Individual persons, businesses, governments and the public at large have different interests in data and access restrictions. These interests are protected by an intricate net of existing laws, which deliberately refrain from granting property rights in data. Indeed, new property rights in data are not suited to promote better privacy or more innovation or technological advances, but would more likely suffocate free speech, information freedom, science and technological progress. The rationales for propertizing data are thus not compelling and are outweighed by the rationales for keeping the data open. No new property rights need to be createdfor data. Lothar Determann teaches computer, internet and data privacy law at Freie Universitat Berlin, University of California, Berkeley School of Law, and Hastings College of the Law, San Francisco, and he practices technology law as a partner at Baker McKenzie LLP in Palo Alto. Opinions expressed in this article are those of the Author, and not of his firm, clients or others. The Author is grateful for valuable input, research and edits by Yoon Chae, Thomas Blickwedel, Paloma Pietsch and Shenura Jeevaratnam, as well as additional suggestions from Prof Eric Goldman, Santa Clara University School of Law, and Tony Bedel.

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