June 5, 2012

Last week we defined property as anything both valuable and transferable, the latter being understood in the most abstract way as a change in the values held by the owner and the other party concerned through an action by at least one party involving the property. It was a short and obvious step from there to show that our personal data is indeed a kind of proper property.

To be useful though, this approach must tackle practical issues as well as the principle. Take ownership. Property cannot be transferable unless it belongs to an owner to beginning with. Even in the simplest of cases, the person in physical possession of some tangible goods which can be carried away is not always the owner. Ownership cannot exist outside of some legal framework, including the rudimentary level of might makes right.

Indeed forceful conquest created many a land right in the Agricultural Age. But, each time history witnesses new forms of property, the law has to determine how to start and document the chain of ownership. The Industrial Age has seen the rise of intellectual property. Our incipient Information Age must now account for personal data. It is a question of economic efficiency and husbandry, which goes back to the definition of property.

What is free is of no value to its owner by default. Having nothing to lose, it is only natural he abuses it. Facebook is my witless witness. Taking ownership of its users' preferences for granted even when made in jest, Facebook sells them to advertisers as endorsements of their products.

Certainly Nick Bergus may like "a 55-gallon barrel of ... personal lubricant" he spotted on Amazon.com and be made to put his face on the product (*). But does it create sustainable value? According to Somini Sengupta, he was aware of the risks. "I know the costs of using Facebook. It does not cost me money. It uses lots of my personal information". Unfortunately, aware or not, serfs are not very productive, are they?

Christopher Caldwell carries this argument one step further. "Facebook is an exciting business because it promises to put a price on something that has heretofore been priceless: friendship and social life" (**). But doing so in a legal vacuum depresses the stock price by creating a "political risk", even if pronaocratic forces makes it a sure bet against our natural right to own our own life. This is definitely not the way to grow the economy.

Again, assuming laws recognize personal ownership of personal data, we must not ignore further difficulties arising from our abstract definition of property. The best way to proceed though is to look again at issues from a general perspective or at least at intellectual property and ownership.

Remember a property transfer may be no more than a change in the values held by the parties concerned. Suppose then a party owns a patent on making physical keyboards more durable for data entry. If another party now implements virtual keyboards for tablet use, it is likely the latter enjoys an increase in value while the former experiences a decrease. Is this enough to say a property transfer has occurred?

In practical terms, the answer is negative. For all its abstraction, our definition requires some concrete action tied to the property. There is none in the example. The first party plays a purely passive role and the new inventor's activity is outside of the claims which define the original property.

Suppose now the first party has patented a particular keyboard layout which promotes faster typing. If the second party's virtual keyboard follows this layout, this will satisfy our definition for a property transfer but certainly not the first inventor, if the two parties had reached no agreement.

Once we tie property with its owner, we cannot escape from two logical consequences. First of all, no transfer of property should happen absent the owner's consent. Second, the owner should have the right to discriminate among the parties asking for a transfer.

We have made a point to redefine property, link it to ownership and show these are legal constructs. Prudence and modesty suggest we consult a dictionary or two. Knowing the relevant patents have long expired, is it useful to reinvent the wheel?

In the Webster's New Collegiate Dictionary, property is "the exclusive right to possess, enjoy, and dispose of a thing". In the Petit Robert, it is "the right to use, enjoy and dispose of a thing in an exclusive and absolute manner under the restrictions set by the law" (1).

Notice that our approach emphasizes one aspect of property, transferability, which figures in both dictionaries as the way to "dispose" of it. This is natural as property disputes normally evolve out of the disagreement between the two parties to a transfer.

Notice too the glaring addition in the French dictionary about the power of the law to restrict property rights. One can only speculate on the reason the American dictionary skips this important phrase. Lack of space? Sensitivity to an American phobia against big government in general and their Federal State in particular?

This difference is cosmetic. Property may be a natural right of Man and the Citizen. We have seen nevertheless it cannot exist outside of a legal framework and what the law defines, the law can restrict.

Recall our last week's quote from the Decalogue. Nobody today would publicly admit "[his] wife, [or] his male or female slave" to be his property. If some do so in private, they are committing a crime and they know it. Most restrictions however do not eliminate, rather they regulate property, witness for instance the laws forbidding landlords from discriminating against prospective tenants.

The key issue I have with these definitions is their use of the word "exclusive", compounded in the French dictionary by the word "absolute". It is simply a relic from the past. The Information Age must recognize the ownership of data, including our personal data. But it cannot ignore that information is made to be shared.

Forget abstraction. The real issue with property today is the conflict between the right to exclusivity and the demands for sharing. Next fillip's topic.

Philippe Coueignoux

• (*) ... So Much for Sharing His 'Like', by Somini Sengupta (New York Times) - June 1, 2012
• (**) . Into the cloud and away with our property rights, by Christopher Caldwell (Financial Times) - June 2, 2012
• (1) the French original states: "droit d'user, de jouir et de disposer d'une chose d'une manière exclusive et absolue sous les restrictions établies par la loi".