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This Essay expounds on the outsized role of private law in governing ownership of new technologies and data. As scholars lament gaps between law and technology, and the need for government regulation in these various spaces, private law has quietly intervened to essentially regulate key features related to ownership, control, and access. Whether such intervention is welcome, efficient, or effective probably depends on the context and is subject to debate. Nevertheless, this Essay provides an excellent illustration of the organic development of private ordering to occupy spaces left open by public law, and posits that the significance of this phenomenon, whether for better or worse, cannot be lost in the weeds.

More specifically, the way in which contract law and intellectual property law have coalesced to define and control data ownership is striking. As a threshold matter, it is property ownership that allocates control of and access to data resources and ultimately enables monetization and value in the marketplace. This control extends to both the public and private spheres, and the attendant implications are far reaching.

Building on my recent work, this Essay will provide three exemplar contexts in which ‘private law creep’ has occurred, especially with respect to trade secrecy—the area of intellectual property law most likely to govern data transactions. By scrutinizing implantable medical devices, facial recognition technology, and algorithmic models in the criminal justice system, one observation remains salient and pervasive: contracts rule. Despite the strong public interests that are implicated in these domains, none of them are regulated on a federal level. Instead, rights of access and ownership are governed by private law.

Synchronization (sync) licenses are required for works in which music is synchronized to video and generally have high transaction costs because they must be individually negotiated. Traditionally, sync licenses were obtained by sophisticated parties for movies, television, commercials, and the like. But digital platforms like TikTok have brought sync licenses from obscurity into the hands of every person with a smartphone.

This transformative innovation has created new issues for copyright law. First, user- generated content (UGC) created by individuals and shared on the internet via social media platforms or websites may require sync licenses that are cumbersome to negotiate and overinclusive. Private agreements between platforms like TikTok and record labels and publishers usually fill the gap, allowing most users to play music with their videos free from concern about copyright infringement. However, these licenses do not account for copyright’s fundamental balance between access and exclusivity because they are overinclusive: Some content on TikTok may be covered by the doctrine of fair use, in which case no license is required. Fair use is an affirmative defense to copyright infringement that permits the defendant to use the copyrighted work without paying the rightsholder.

Second, TikTok’s agreements with labels and publishers could be eroding fair use. The ex-post nature of fair use means that risk-averse parties, when confronted by a situation in which the viability of their claim is unclear, are likely to obtain a license not required by law. This in turn can narrow the scope of fair use because the existence of an active licensing market makes it less likely that a court will find a use is fair. Future parties then become less likely to rely on an increasingly dubious fair use defense. In the TikTok context, doctrine about fair use and sync is especially uncertain. The scant precedent in UGC fair use cases appears to be highly fact-dependent, there are few cases that specifically deal with sync rights, and none of those have decided fair use as applied to sync.

This Note proposes a blanket, compulsory license for noncommercial UGC sync as an imperfect solution to help correct the balance of copyright in the digital platform era. The compulsory license would return review of public copyright law back to Congress and courts and prevent private ordering from curtailing fair use. Further, valuable creativity would be protected because rightsholders would not be able to withhold permission for use of copyrighted material.

Data is not monolithic. Nonetheless, the word is frequently used indiscriminately—in reference to a number of distinct concepts. It may refer to information writ large, or specifically to personally identifiable information, discrete digital files, trade secrets, and even to sets of AI-generated content. Yet each of these types of “data” requires different governance regimes in commerce, in life, and in law. Despite this diversity, the singular concept of data trusts is promulgated as a solution to our collective data governance problems. Data trusts—meant to cover all of these types of data—are said to promote personal privacy, increase corporate transparency, facilitate the sharing of data, and even pave the way for the next generation of artificial intelligence. These anticipated benefits, however, require the body and flexibility of equitable trust law and its inherent fiduciary relationships for their fruition. Unfortunately, American trust law does not allow for the existence of such general data trusts. If anything, the judicial, academic, and legislative confusion regarding data rights—or data’s status as property—demonstrates that discussions of data trusts may be ignoring a key element. Without first determining whether (or what kind of) data can be recognized as a trust res (i.e., as trust property) under existing law, it may be premature to accept data trusts as the private law solution to data governance. If, on the other hand, the implementation of data trusts requires legislative intervention, its purported benefits must be analyzed in contrast to the myriad other new and evolving data governance frameworks that would similarly require legislation. By analyzing existing trust law and the difficulties of defining data rights, this essay highlights the urgent need to pursue doctrinally, legislatively, and technologically viable data governance strategies.

Photography has exploded into the most accessible mode of creative production of
our time: Over one trillion photographs will be taken this year. Yet despite the
medium’s dramatic expansion, catalyzed by advances in technology, the copyright-
ability of photography remains controlled by a Supreme Court precedent that is
over one hundred years old, Burrow-Giles Lithographic Co. v. Sarony. The long-
standing interpretation of Burrow-Giles in the lower courts has rendered nearly
every litigated photograph copyrightable, even though the factual foundation of
Burrow-Giles is remarkably inconsistent with how most photography is produced
today. With protracted, low-value, and often frivolous copyright litigation over
photographs increasingly clogging up federal courts’ dockets, it is high time to
reconsider photography’s copyright.

This Note argues that a revitalization of copyright’s merger doctrine—long ignored
or dismissed in the realm of photography’s copyright—could be the vehicle for this
reassessment. Theorizing photographs as mergeable does not render the medium
per se uncopyrightable, but captures the spirit of the Supreme Court’s now 150-
year-old instruction to permit photography’s copyright, while correcting for
changes in photographic technology to better uphold the Court’s simultaneous
mandate that “ordinary” photographs should not receive copyright protection.

When Congress passed the Copyright Act of 1976, it enacted Section 203, which allows authors to terminate transfers of the copyright in their works thirty-five years after the transfer. Congress intended this to be the author’s “second chance” after having made a disadvantageous first deal, either due to a lack of bargaining power or an inability to predict the work’s future value. Within the music industry, the impact of Section 203 has been contested, with some arguing that it will fundamentally shift the balance of power between recording artists and songwriters (the authors) and record labels and music publishers (the transferees), and others expecting that the provision will provoke contentious litigation of Section 203’s statutory exceptions. Because the first works reached termination eligibility in 2013, the effects of Section 203 remain unclear. In this Note, I argue that, even if an author circumvents the statutory exceptions, Section 203 is largely ineffective because several factors prevent a clean severance of the relationship between the author and transferee. Complications related to jointly authored works, the jurisdictional limitation to the United States, and contract provisions that survive post-termination create a situation where the author may regain his or her U.S. copyrights but will remain tethered to the transferee. Although an author could theoretically self- administer his or her U.S. copyrights or transfer these rights to a new transferee, the economically rational option is to retransfer the copyrights to the original transferee. This result precludes any significant impact on the music industry’s power dynamics, despite Congress’s (and the authors’) initial hopes that Section 203 would be a tool for change.

In an effort to protect innovation and increase trade secret enforcement, Congress passed the Defend Trade Secrets Act in 2016. The law contains an ex parte seizure provision that provides for the seizure of property in order to prevent the theft or transmission of a trade secret. This Note is the first to argue that the ex parte seizure provision raises serious constitutional due process concerns. It proceeds by framing the seizure provision within its historical and legislative context, identifying infirmities in the provision through the lens of due process, and addressing larger practical and policy implications. The potentially widespread and lasting effects of the seizure provision on employee mobility, innovation, and competition underscore the importance of eliminating the provision or severely limiting its scope.

A recent decision of the Federal Circuit, Madey v. Duke University, highlights the extremely limited protection granted to universities conducting noncommercial research from claims of patent infringement. The proper scope of the experimental use exception has been hotly debated among legal scholars, with many asserting that a broad defense is necessary to allow universities to freely conduct valuable experimental science and basic research. This Note examines the structure of university research in an effort to explain why, despite any significant legal protection, it is often in the interest of patent holders to allow infringing noncommercial research to continue unchallenged. Specifically, the commercial ties that exist between universities and for-profit entities serve to protect academic noncommercial research. While providing universities with less protection than a strengthened common law or statutory defense, this nonlegal “informal” research exception performs much the same function as a recognized experimental use exception.

Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.

Copyright law itself creates strong incentives for copyfraud. The Copyright Act provides for no civil penalty for falsely claiming ownership of public domain materials. There is also no remedy under the Act for individuals who wrongly refrain from legal copying or who make payment for permission to copy something they are in fact entitled to use for free. While falsely claiming copyright is technically a criminal offense under the Act, prosecutions are extremely rare. These circumstances have produced fraud on an untold scale, with millions of works in the public domain deemed copyrighted, and countless dollars paid out every year in licensing fees to make copies that could be made for free. Copyfraud stifles valid forms of reproduction and undermines free speech.

Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims. Courts should extend the availability of the copyright misuse defense to prevent copyright owners from enforcing an otherwise valid copyright if they have engaged in past copyfraud. In addition, Congress should further protect the public domain by creating a national registry listing public domain works and a symbol to designate those works. Failing a congressional response, there may exist remedies under state law and through the efforts of private parties to achieve these ends.

Virtual worlds are increasing in commercial importance. As the economic value of computer-generated spaces soars, questions of how to apply our tax law to transactions within them will inevitably arise. In this Article, Professor Leandra Lederman argues for federal income tax treatment that reflects the differences between “game worlds” and “unscripted worlds,” arguing that the former should receive more favorable tax treatment than the latter. Specifically, she argues that transactions in game worlds such as World of Warcraft should not be taxed unless the player engages in a real-market sale or exchange. By contrast, in intentionally commodified virtual worlds such as Second Life, federal income tax law and policy counsel that in-world sales of virtual items be taxed regardless of whether the participant ever cashes out.

New technologies such as the VCR and Google Book Search can change the way copyrighted works are used, thereby making their innovators rich. Copyright owners are aware of these riches and often strategically sue the technology companies with the aim of gaining a share of the money. This dynamic—an innovator investing to create a new technology and a creator of a copyrighted work then suing for her share of the profits—creates an investment incentive problem. The dual goal of promoting the efficient creation of both new copyrighted works and new technologies that augment those works requires us to choose a legal rule that divides the gains from these new technologies between authors and innovators. The fair use doctrine—the statutory rule that allows some types of copyright infringement—is the legal rule that is used to do this dividing. However, economic theories of copyright law do not contain an analysis of investment incentives. This Note analyzes the effects fair use has on the incentives to create copyrighted works and to invest in technologies that affect those works.