Bitproperty

Property is the law of lists and ledgers. County land records, stock certificate entries, mortgage registries, UCC filings on personal property, United States Copyright and Patent registries of interests in intellectual property, bank accounts, domain name systems, and consumers’ Kindle eBook collections in the cloud — all are merely entries in a list, determining who owns what.Each such list has suffered under a traditional limitation. To prevent falsification or duplication, a single entity must maintain the list, and users must trust (and pay) that entity. As a result, transactions must proceed at significant expense and delay. Yet zero or near-zero expense is the fuel of internet scalability. Until technologies get cheap and fast enough, they cannot benefit from the full power of the internet. Property transactions have not yet truly seen an internet revolution because they are constrained by the cost of creating centralized trusted authorities.This article retheorizes the contours of digital property if that central constraint were removed. There is every reason to believe it can be. A spate of interest in cryptocurrencies has driven the development of a series of technologies for creating public, cryptographically secure ledgers of property interests that do not rely on trust in a specific entity to curate the list. Previously, the digital objects that users could buy and sell online were not rivalrous in the same way as offline physical objects, unless some centralized entity such as a social network, digital currency issuer, or game company served the function of trusted list curator. Trustless public ledgers change this dynamic. Counterparties can hand one another digital, rivalrous objects in the same way that they used to hand each other gold bars or dollar bills. No intermediary or curator is needed.Trustless public ledgers can help to reshape property law online. They offer the kind of near-zero transaction costs that have provoked radical disruptive innovation across the internet. With near-zero transaction costs, online property transactions can finally benefit from the huge scaling effects of internet technologies.In addition, the advent of this disruptive technology provides an opportunity to more deeply theorize property interests in information environments. Property online is anemic. Consumers control few online resources and own even less. This is in no small part due to antiquated notions of property as the law of physical, tangible resources. With the advent of new technology that can create digital, scarce, and rival intangible assets, these basic assumptions should be reexamined, discarded, and replaced with a theory of property as an information communication and storage system. That is the project of this piece

Avatar Experimentation: Human Subjects Research in Virtual Worlds

Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within virtual worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds. Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world because the experience of the virtual world is “real” to them. The very characteristics that make virtual worlds attractive to researchers complicate ethical and lawful research design. The same principles govern research in virtual worlds and the physical world. However, the change in context can cause researchers to lose sight of the fact that virtual world research subjects may suffer very real harm to property, reputation, or community as the result of flawed experimental design. Virtual world research methodologies that fail to consider the validity of users’ experiences risk harm to research subjects. This Article argues that researchers who put subjects’ interests in danger run the risk of violating basic human subjects research principles. Although hundreds of articles and studies examine virtual worlds, none have addressed the interplay between the law and best practices of human subjects research in those worlds. This Article fills that gap. Virtual worlds are valuable research environments precisely because the relationships and responses of users are measurably real. This Article concludes that human subjects researchers must protect the very real interests of virtual worlds inhabitants in their property, community, privacy, and reputations

To Err is Human: The Judicial Conundrum of Curing Apprendi Error

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ERISA Preemption and the Case for a Federal Common Law of Agency Governing Employer-Administrators

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Avatar Experimentation: Human Subjects Research in Virtual Worlds

Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within virtual worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds. Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world because the experience of the virtual world is “real” to them. The very characteristics that make virtual worlds attractive to researchers complicate ethical and lawful research design. The same principles govern research in virtual worlds and the physical world. However, the change in context can cause researchers to lose sight of the fact that virtual world research subjects may suffer very real harm to property, reputation, or community as the result of flawed experimental design. Virtual world research methodologies that fail to consider the validity of users’ experiences risk harm to research subjects. This Article argues that researchers who put subjects’ interests in danger run the risk of violating basic human subjects research principles. Although hundreds of articles and studies examine virtual worlds, none have addressed the interplay between the law and best practices of human subjects research in those worlds. This Article fills that gap. Virtual worlds are valuable research environments precisely because the relationships and responses of users are measurably real. This Article concludes that human subjects researchers must protect the very real interests of virtual worlds inhabitants in their property, community, privacy, and reputations

Castles in the Air: F. Gregory Lastowka\u27s Virtual Justice

This Article argues that informed consent to contract terms is not a good to be maximized, but an information cost that courts should minimize. As a result, courts ought to minimize the cost sum of information costs and contractual surprise. The Article applies information-cost theory to show that information-forcing rules are often inefficient at both the micro- and macroeconomic levels. Such rules also impose greater costs on third parties than the benefits they create for the contracting parties. When one consumer creates an idiosyncratic deal, the information-savings benefits of standardization are reduced for all other potential consumers. The Article demonstrates that in some cases courts are already abandoning a rigid view of contractual consent when consent is too costly; but that under other doctrines, courts insist on an inefficient level of informed contractual consent

The Search Interest in Contract

Parties often do not negotiate for contract terms. Instead, parties search for the products, terms, and contractual counterparties they desire. The traditional negotiation centered view of contract continues to lead courts to try to construe the meaning of the parties where no meaning was negotiated, and to waste time determining the benefits of bargains that were never struck. Further, while courts have ample tools to validate specifically negotiated contract terms, courts lack the tools to respond to searched-for terms. Although the law and literature have long recognized that there is a disconnect between the legal fictions of negotiation and the reality of contracting practice, no theory has emerged to replace fictional negotiation. Therefore, this article develops a new search-oriented theory of contract, and shows that search theory can explain contracting behavior where the fictions of negotiation fail. The article then applies this theory to the common law of contract, the Uniform Commercial Code, and the growing world of internet searches and electronic contracting

Nexus Crystals: Crystallizing Limits on Constractual Control of Virtual Worlds

Can a video game developer or publisher successfully sue a video game player for copyright infringement for not “playing a game nicely,” “cheating,” or “buying software from a third party”? This article suggests a new reason why it cannot. The founding social contract of the new millennium is the End User License Agreement (EULA), not the U.S. Constitution. Website terms of use (TOU) and software EULAs now have an enormous impact on how citizens must act and how their rights and redresses are defined. EULAs contain not only traditional intellectual property licensing conditions but complicated directives regarding what members of online communities can say, how they must act, what they can do, with whom they can transact business, and whether they can own the fruits of their own labor. The question that has been before academics for a long time, and before courts for a shorter time, is how far these contracts can go in controlling the property and dignitary interests of contractual communities. The consequences of this legal debate are immediate and personal, although the law governing these rules is always in flux and sometimes incoherent. You may “jailbreak” your iPhone or “root” your droid without implicating copyright issues no matter what your license says. But if you “mod” your PlayStation 3 (PS3) in violation of your software license agreement (or, worse, show others how to do so), then you risk a major lawsuit. The only way to understand this area of law is to identify the legal questions at the center of the debate because, while the answers courts give to these questions are not stable, the questions themselves have been. The center of the debate is the interaction between the grant of exclusive rights in the core provisions of the Copyright Act and the later additions by the Digital Millennium Copyright Act (DMCA) — the statute that protects technological locks against technological circumvention. The connection between contracts and technological measures is direct but not immediately clear. Contracts that restrict access to software are legally enforceable documents, but also technological protective measures that control access to copyrighted material. This creates a catch-22 for the end user: either the end user clicks through the EULA and gives up a panoply of rights, often including fair use, or the end user circumvents the contract and is liable for that circumvention under the DMCA. The question is whether corporations can use EULAs to control consumer behavior that has little or nothing to do with copyright. It is clear that a copyright license that restricts a licensee from making copies makes use of a power that Congress intended to give to copyright holders. It is less clear that Congress intended to permit companies to turn actions such as “being rude while playing a video game,” “criticizing the game company while commenting on game message boards,” or “cheating while playing a game” into copyright infringements. Companies can, of course, contract with users to use the software in certain ways, but it is not at all certain that any resulting breach of contract claims should be transformed into copyright infringements and/or DMCA violations. A number of courts have therefore held that there must be a “nexus” between a license restriction that a corporation seeks to enforce on penalty of DMCA violation and some right granted by the Copyright Act. The Ninth Circuit has held otherwise: a clause unconnected to any core right granted by the Act would be enforceable as a copyright infringement if the user violated the EULA and as a DMCA violation if the user either circumvented the EULA or sought to avoid surveillance programs, such as Blizzard’s Warden, intended to enforce these contractual clauses. Yet the Ninth Circuit has now recently recognized the dissonance caused by permitting corporations to turn every breach of contract into a claim for copyright infringement, an infringement of the DMCA, or even a criminal hacking claim. In a recent case, MDY Industries, LLC v. Blizzard Entertainment, Inc., the Ninth Circuit adopted a novel approach to contractual construction that may serve to separate “play nice” contract clauses from “don’t illegally copy” core copyright license terms. This article argues that such an approach might serve as a “nexus crystal”; a doctrinal catalyst around which doctrines that take seriously these important issues of consumer control could crystallize. MDY does not adopt a nexus test for DMCA claims in the Ninth Circuit. But it nevertheless succeeds in separating social control from copyright licensing through a closer examination of the contractual clauses themselves; it does so by arguing that a mere rule of social control (“play nice”) is a contractual condition and not a condition of the intellectual property license. This article proceeds in three parts. The first part discusses some pertinent legal literature and case law concerning the contractual control of online communities. The second part discusses case law that I believe describes coalescing limits on contractual control. One limit is familiar: some circuits require a nexus between a DMCA-protected technological lock and the exercise of some right granted by the Copyright Act to the copyright holder with respect to the locked-up material. But a second limit is potentially significantly more far-reaching: a contractual construction that limits the kinds of social control a copyright holder can exercise via mass-market consumer contracts of adhesion. Simply put, can software providers require their mass-market consumers to not criticize the company on public forums or to not do business with an aftermarket software provider, as conditions of the intellectual property license? This article argues that they cannot and that the MDY decision is one of the first cases to confront this issue head-on and resolve it correctly. The third part examines the district and appellate decisions in MDY v. Blizzard and discusses how the court navigates the labyrinth between copyright holders’ rights and their ability to dictate patterns of social behavior to online communities under threat of copyright infringement. I then offer some conclusions

The Search Interest in Contract

Parties often do not negotiate for contract terms. Instead, parties search for the products, terms, and contractual counterparties they desire. The traditional negotiation centered view of contract continues to lead courts to try to construe the meaning of the parties where no meaning was negotiated, and to waste time determining the benefits of bargains that were never struck. Further, while courts have ample tools to validate specifically negotiated contract terms, courts lack the tools to respond to searched-for terms. Although the law and literature have long recognized that there is a disconnect between the legal fictions of negotiation and the reality of contracting practice, no theory has emerged to replace fictional negotiation. Therefore, this article develops a new search-oriented theory of contract, and shows that search theory can explain contracting behavior where the fictions of negotiation fail. The article then applies this theory to the common law of contract, the Uniform Commercial Code, and the growing world of internet searches and electronic contracting

“You Keep Using That Word”: Why Privacy Doesn’t Mean What Lawyers Think

This article explores how the need to define privacy has impeded our ability to protect it in law. The meaning of “privacy” is notoriously hard to pin down. This article contends that the problem is not with the word “privacy,” but with the act of trying to pin it down. The problem lies with the act of definition itself and is particularly acute when the words in question have deep-seated and longstanding common-language meanings, such as liberty, freedom, dignity, and certainly privacy. If one wishes to determine what words like these actually mean to people, definition is the wrong tool to use. The exact wrong way to go about understanding privacy is by supplying one’s own definition; that is unscientific. Since words in a living language mean many things (e.g., what does “cool” mean?), the act of definition reduces the multiple meanings of the defined word to a specified meaning. Each increase in precision comes with a corresponding separation from some set of meanings that would have applied to the living, undefined version of the word. The resulting defined word may be more precise but is often crippled, isolated, and bereft of the connections and connotations that made it part of a rich and living language. Like Procrustes, who strapped his victims to a bed and then either lopped off their feet if they stuck out or stretched the person on a rack if they were too short, lawyers are specifically trained to stretch and cut words. Tools of definition are badly suited to determine what people mean when they say “privacy.” For example, the actual meaning of “privacy” might better be explored through the tools of linguistics or cultural anthropology than through the tool of legal definition. This article therefore recommends that lawyers should set aside the flawed tool of definition and pick up the tool of analogy when they ask what words like privacy mean. This article asks why privacy has been uniquely pressed by concerns about supposed imprecision. For example, we do not stop our search for “security” because of a supposed lack of definition of the word. If privacy must have a definition to be operationalized, it will remain be conveniently narrow. moribund. And if privacy requires narrowing to be operationalized, any operationalization will be conveniently narrow