Data Property, James Grimmelmann '05, Professor of Digital and Information Law at Cornell Tech and Cornell Law School.

In this, the Information Age, people and businesses depend on data. From your family photos to Google’s search index, data has become one of society’s most important resources. But there is a gaping hole in the law’s treatment of data. If someone destroys your car, that is the tort of conversion and the law gives a remedy. But if someone deletes your data, it is far from clear that they have done you a legally actionable wrong. If you are lucky, and the data was stored on your own computer, you may be able to sue them for trespass to a tangible chattel. But property law does not recognize the intangible data itself as a thing that can be impaired or converted, even though it is the data that you care about, and not the medium on which it is stored. It's time to fix that.

This Article proposes, explains, and defends a system of property rights in data. On our theory, a person has possession of data when they control at least one copy of the data. A person who interferes with that possession can be liable, just as they can be liable for interference with possession of real property and tangible personal property. This treatment of data as an intangible thing that is instantiated in tangible copies coheres with the law’s treatment of information protected by intellectual property law. But importantly, it does not constitute an expansive new intellectual property right of the sort that scholars have warned against. Instead, a regime of data property fits comfortably into existing personal-property law, restoring a balanced and even treatment of the different kinds of things that matter for people’s lives and livelihoods.

James Grimmelmann is the Tessler Family Professor of Digital and Information Law at Cornell Tech and Cornell Law School. He studies how laws regulating software affect freedom, wealth, and power. He helps lawyers and technologists understand each other, applying ideas from computer science to problems in law and vice versa. He is the author of the casebook Internet Law: Cases and Problems and of over fifty scholarly articles and essays on digital copyright, content moderation, search engine regulation, online governance, privacy on social networks,, and other topics in computer and Internet law. He holds a J.D. from Yale Law School and an A.B. in computer science from Harvard College.