LAW 6306
Digital Property
James Grimmelmann
Cornell Tech
Spring 2024
Overview
This is an elective course on how property law is adapting to the digital world. Types of property to be considered will include:
- Blockchain-based assets like NFTs and cryptocurrencies
- Online resources like domain names and social-media accounts
- Files in cloud storage
- Health records and other personal data
- Anti-hacking laws and computer systems as property
- Digital registries for real estate, corporate shares, and other traditional property
- Digital downloads and streams of copyrighted works
We will discuss how these types of property are defined, the rights of their owners, and the kinds of transactions that are possible in them. The focus will be on United States law, with some comparative discussion of different approaches taken by other jurisdictions.
Course Outcomes
Students who complete this course will be able to:
- Identify types of digital resources that are and are not subject to property rights
- Distinguish among different types of property regimes and know which kinds of resources they apply to
- Explain when property rights in digital resources come into existence
- Identify violations of those property rights and the remedies for those violations
- Understand how to make transactions involving these property rights effective
This is a new course, but for more information about other courses I have previously taught, including syllabi and final exams, consult my courses webpage.
Who is This Course For?
This course is intended primarily for law students. Although there are no formal prerequisites, you should be familiar with the property law of at least one jurisdiction. The course will begin with an accelerated review of some essential concepts of United States property law.
Non-law students with a particular interest in the subject matter and willingness to do substantial extra work are welcome to take the course with the permission of the instructor. I am happy to refer you to resources that can give you a grounding in property law, but you will need to do outside readings to fill yourself in on the relevant background.
Policies
Please see the course policies document for information about COVID-19 safety; inclusion; names, titles and pronouns; the history of the site where the course takes place; academic integrity; unauthorized collaboration policy; accessibility and accommodations for disabilities; class recordings; and professionalism.
Logistics
This syllabus is at http://james.grimmelmann.net/courses/digitalproperty2024S.
Email: james.grimmelmann@cornell.edu
Huddle: Bloomberg 370
Desk: Bloomberg 3 NW, near the bookshelves
My office hours are whenever I’m free during the workday. You can sign up for a slot at https://jtlg.me/meet. When I’m on campus, we can meet in person in my huddle; when I’m not, there’s a Zoom link on Canvas. If none of the available times work for you, send me an email or DM me on the Cornell Tech Slack.
It’s also always fine just to swing by to see if I’m free. If I have headphones on, just catch my eye. If my huddle door is open, come on in. If it’s closed, it’s closed for a reason (usually a call or a meeting) – send me an email!
Required and Recommended Materials
The required readings will mostly be taken from cases and articles posted to Canvas. A few books will make regular appearances:
- Stephen Clowney, James Grimmelmann (ahem), Michael Grynberg, Jeremy Sheff, and Rebecca Tushnet, Open Source Property is a free online casebook, divided into a selection of independent “modules” on standard topics in a first-year Property course.
- James Grimmelmann (ahem), Internet Law: Cases and Problems is a pay-what-you-want PDF casebook. We will be using small portions, so it is perfectly fine with me for you to pay nothing. (Reusing the book saves me the work of re-editing the cases.)
- Barlow Burke, Personal Property in a Nutshell (4th ed. 2018) is available digitally through the Cornell library website.
The following are not required but you may find them useful:
- John G. Sprankling, Understanding Property Law (5th ed. 2022) is available online through the Cornell library. It is a thorough and accessible overview of United States property law, although it dwells very little on the issues we will discuss.
- Michael Bridge, Personal Property Law (2d ed. 1996) and Alison Clarke, Property Law: Commentary and Materials are two U.K. textbooks available digitally through the Cornell library website. For historical reasons, American courses on property law focus almost exclusively on land. As a result, U.K. textbooks often contain more extensive and clearer explanations of other types of property.
- I have a collection of good Property casebooks in ink-on-paper form. Come talk to me for recommendations and to borrow them.
Class
Our class sessions will be devoted almost entirely to discussing the assigned cases and articles. Even more so than in a standard law-school class, it is essential to work through the ideas yourself. Some of what the readings say will be unintuitive; some of it will be wrong.
Attendance in class is required. Especially in view of the other significant demands on your time, I will be understanding about conflicts and flexible in working with you to make alternative arrangements as needed. That said, consistent unexcused absences are not okay, and may lead to a reduced grade or exclusion from the course (after reasonable written warning).
Please arrive promptly. I promise that we will end on time, but that means we must start on time. Bring the readings with you, either on your computer or in hard copy.
This is a hybrid course. If you are joining by Zoom, please remember to turn on your camera and to mute your microphone except when you are speaking. It is possible that due to weather or childcare problems I may sometimes need to switch the entire class to Zoom for a day; I will do my best to give you as much advance notice as I can when this is the case.
Questions are always welcome, even when we are discussing something else. Occasionally I will ask you to hold a question because we are about to answer it in a few minutes when discussing another case, but otherwise I will do my best to answer all questions immediately. If something is unclear to you, it is probably unclear to your classmates – and sometimes it is unclear to me, too.
Assignments
Your work for this class will consist of the following:
First, do the assigned readings and participate in class discussions.
There will be a short take-home midterm, which will will be available starting on March 6 and due by 11:59 PM on March 13 .
Finally, there will be a take-home final examination, which will be available starting on May 6 and due by 11:59 PM on May 13. It will be like the midterm, except that I will give you two questions rather than one, and the questions may range over the entire course.
All written work will be blind-graded; I will provide instructions to ensure appropriate anonymity.
Grading
Your grades will be determined as follows:
- Midterm: 1/3
- Final examination: 2/3
I may adjust grades up or down by one third of a grade (e.g. B+ to A-) for consistently good or poor class participation. I consider good class participation to be anything that helps your fellow students learn, and poor participation to be anything that obstructs their learning.
The final course grades will conform to Cornell Law School’s grading curve, which require that all courses be curved to a mean grade of 3.35., i.e. very close to B+.
Schedule
The course will meet in a hybrid format. We will meet in person in room 81 in the Bloomberg Center at Cornell Tech and by Zoom for the Ithaca section. If you are in the Cornell Tech section and are quarantining or traveling or have another good reason to join remotely and have confirmed with me in advance, it is okay to join the Zoom directly.
We will usually meet Mondays 1:15 to 3:15 PM. We will take a ten-minute break in the middle of each session.
Please note that we follow the university calendar, not the law-school calendar.
The following is a tentative schedule of readings. Classes with dates are locked. Everything else may change by the time we get there.
January 22: A Property Primer
- James Grimmelmann, Real + Imaginary = Complex: Toward a Better Property Course, 66 Journal of Legal Education 930 (2017). This is me putting my cards on the table to explain where this course is coming from. We’ll spend a lot of time in this first class discussing the different types of property: what makes them factually different, and how the legal treatment of them is different.
- Open Source Property: Property Torts and Crimes
January 29: Computer Misuse
- Intel Corp. v. Hamidi, 1 Cal. Rptr. 3d 32 (2003). It is fine to read only the excerpts in Internet Law, plus Part II (“Proposed Extension of California Tort Law”).
- Maureen E. Brady, Property and Projection, 133 Harvard Law Review 1143 (2020). Skim the introduction and read Part I.
- HiQ v. LinkedIn, 938 F.3d 985 (9th Cir. 2019). It is fine to read only the excerpts in Internet Law. Then read Part IV.A.1 of the opinion on remand to see how LinkedIn won on its contract claim even though it lost on the CFAA claim.
- Meta Platforms Inc. v. Bright Data Ltd., No. 3:23-cv-00077-EMC (N.D. Cal. Jan. 23, 2024). This is a long opinion. Kieran McCarthy and Eric Goldman have a good and/but opinionated summary that is a good starting point.
February 5: Domain Names
- Background: Open Source Property: Bailments and Liens. Consult if you are not already familiar with the concepts of bailments and security interests in personal property, or if you need a refresher.
- Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003). This is the canonical case on property in domain names, and highly influential on property in other types of intangibles.
- Stern v. Islamic Republic of Iran, 73 F. Supp. 3d 46, (D.D.C. 2014). This case asks us to consider how far the Kremen principle extends.
- Weinstein v. Islamic Republic of Iran, 831 F. 3d 470 (D.C. Cir. 2016). This is the same case on appeal. The relevant portion is II.D. (“Protection of Third Party Interests …”)
- ICANN, Uniform Domain-Name Dispute-Resolution Policy. Now, trademark law enters the picture. In addition to asking what the rules are, consider how it is that ICANN, a California non-profit organization, has the power to impose them.
- Travelers Indemnity Co. v. Travellers.com, No. 10-cv-448 (LO/JFA) (E.D. Va. Nov. 28, 2011). This case raises the question of the relationship between trademark law and property law.
- Optional: Milton L. Mueller and Farzaneh Badiei, Governing Internet Territory: ICANN, Sovereignty Claims, Property Rights, and Country-Code Top-Level Domains, 18 Columbia Science and Technology Law Review 435 (2017) has an in-depth history of ccTLDs (in parts 2 and 3) and a counterpoint to Stern (in parts 4 and 5).
- Optional: Nicholas Nugent, Masters of Their Own Domains: Property Rights as a Bulwark Against DNS Censorship. The whole article is relevant, but in particular if you want an accessible but more detailed explanation of how the DNS systems works, there is a useful technical overview in Part I.
February 12: Accounts
- JLM Couture v. Gutman. The relevant portions are I.A (“Factual Background”) and II.C.1.a (“Ownership Analysis”). There are two questions here. First, are social-media accounts property under the Kremen test? Second, if so, who actually owns an account?
- Mishiyev v. Alphabet, Inc., 444 F. Supp. 3d 1154 (N.D. Cal. 2020). Now, let’s introduce the company that runs the service providing the account. Can it terminate a user’s account at will? And if so, does that mean users don’t have property rights in accounts?
- MacKinnon v. IMVU, Inc., No. H039236 (Cal. Ct. App. Oct. 30, 2014). Here’s a case going the other way. Don’t get bogged down in the details; just try to get a sense of the legal rationale the court gives for siding with the user. Are the plaintiffs here asking for the account? Or for something else?
- Matter of Scandalios 2019, NY Slip Op 30113 (Surrogate’s Ct.). A nice succinct case introducing the treatment of accounts at death. Are the plaintiffs here asking for the account? Or for something else?
- E.U. Data Act. This new legislation has been officially enacted, but hasn’t yet taken effect. It implements a “data portability” requirement in the E.U. The whole thing is typically European (abstract and wordy), but the parts we care about are in Chapter VI, and you can get the gist from Article 23. What does this have to say about property in an account? About property in anything else? How would it affect any of the other cases we’ve read for today?
February 19: Transactions
- Open Source Property: Gifts (pages 1-11 only), Good-Faith Purchasers, Land Transactions (pages 1-16 only). This is foundational material on when transactions are effective and what their consequences are. The essential concepts are formalities, fungible vs. identifiable property (Wetherbee), void vs. voidable title (UCC § 2-403 and Kotis), good faith purchase for value (Kotis), negotiability (Note on Negotiability), statutes of frauds (Indiana Code §§ 3-21-1-1, -13), forgery (Harding), property descriptions (Walters), and delivery (Loughran).
- Dean Witter Reynolds Inc. v. Variable Annuity Life Insurance Company, 373 F.3d 1100 (10th Cir. 2024). This is a beautiful case on the property fundamentals of banking and payments law.
- Beau Townsend Ford Lincoln, Inc. v. Don Hinds Ford, Inc., 759 Fed. Appx. 348 (6th Cir. 2018). This case is a good summary of wire transfers and has a good discussion of another botched payment.
- Experi-Metal Inc. v. Comerica Bank, No. 09-14890 (E.D. Mich. July 8, 2010). Another case on how digital transfers can go wrong; this time the problem is an unauthorized transfer rather than an authorized one sent to the wrong recipient.
March 4: Registries
March 11: Blockchains I
March 18: Blockchains II
March 25: First Sale
- Vernor v. Autodesk, 621 F.3d 1102 (9th Cir. 2010). This is a dense case, and it requires close reading. There is an edited version available at page 462 of my Internet Law casebook (available under “Files” on Canvas), and you may find questions 1–5 following the case useful in thinking through it.
- Capitol Records, LLC v. ReDigi Inc., 934 F. Supp. 2d 640 (S.D.N.Y. 2013)
- Aaron Perzanowski and Jason Schultz, The End of Ownership (2016), chapters 2, 3, and 4.
April 1: NO CLASS
Enjoy spring break!
April 8: NFTs
April 15: NO CLASS
I will be participating in the Evaluating Generative AI Systems workshop.
April 22: Data I
- J.H. Reichman and Pamela Samuelson, Intellectual Property Rights in Data?, 50 Vanderbilt Law Review 51 (1997). This is a doorstop. Read pages 58–95. This is a good historical overview of (1) how copyright does not cover facts, (2) why some observers think this rule is problematic on the Internet, and (3) how the Database Directive attempts to respond to this perceived failure. Note that the United States does not have a similar legal regime; opponents of one (like Reichman and Samuelson) succeeded in stopping the push for one.
- Paul M. Schwartz, Property, Privacy, and Personal Data, 117 Harvard Law Review 2056 (2004)
- Own Your Own Data Act, S. 806 (116th Cong. 2019). Does OYODA create property in data?
- E.U. General Data Protection Regulation (2018). Focus on chapters 2 and 3. Does the GDPR create property in data?
- Optional: E.U. Database Directive (1996). This is the “E.C. Directive” that Reichman and Samuelson discuss.
- Optional: Jorge L. Contreras, The False Promise of Health Data Ownership, 94 New York University Law Review 624 (2019). This is a modern response to Schwartz’s argument.
April 29: Data II
May 6: Generative AI