The title is a good summary. Our most valuable stuff increasingly isn’t ours (“[w]e are at risk of digital homelessness”), because of the licensing of the software that runs it, and our stuff—including our vibrators—also spies on us. These not-property items don’t build equity in the same way; our Kindle libraries can’t be resold. The dream (nightmare) of perfect price discrimination, so that sellers get all the consumer surplus there is in every transaction, seems increasingly closer to realization.

There might be no difference between “owning” a smart house and renting in everyday practice—except that we have extensive landlord-tenant regulations developed from centuries of experience about what can go wrong. Plus, there are privacy implications; while some people say they have nothing to hide, “I don’t accept that argument from anyone wearing clothes.” Fairfield proposes that the law should grant to “owners” of digital products the key rights of property: “the right to modify, the right to sell, the right to use, and the right to exclude others.” In particular, we should be able to modify our devices to stop them “leaking” data to outsiders, including the entity that sold the device to us. We should have the right to transfer and sell our content, so that we aren’t locked into particular platforms. We should have the right to run code of our choice on our devices. And we should have the right to exclude data collectors from our property. (It’s not clear to me how well this will work if others are allowed to bribe us to give up those rights.)

Fairfield argues that intellectual property rushed in to fill a void in the law because traditional property law had trouble dealing with intangible property, even though intellectual property isn’t the right model for all “intangible” property. Antitrust law isn’t enough to solve problems of user lock-in to specific technologies, for a variety of reasons, but traditional property law might be; traditional property law does recognize that some rights can’t be created by agreement (e.g., future interests violating the rule against perpetuities). On that model, merely agreeing with the seller that you didn’t really “buy” something wouldn’t be enough to prevent you from exercising an owner’s rights. Fairfield’s point that property is about imagination—when we believe ourselves owners, we behave differently—is an important one, but it’s also one that cuts somewhat against his claims about the corrosive effect of digital feudalism; if we, in Freudian fashion, “know” that we aren’t really owners, but behave as if we are all the same, then we may not be as harmed or chilled in our behavior than the theory would predict. He’s also very optimistic about the use of digital recording to track copies of, e.g., music, without really thinking through how that relates to his opposition to many kinds of DRM (digital rights management) technologies—he seems to envision a blockchain system that checks ownership but otherwise preserves privacy/chunks ownership rights.

Digital Feudalism

The essence of Joshua Fairfield’s Owned is that igadgets have managed to secure their position as still belonging to the seller after the sale. Sellers maintain control, and sue their customers when they try to use their property as they see fit. This goes against hundreds of years of property and privacy law. The sellers have convinced regulators, lawmakers and the courts to judge them under copyright laws, which favor them, and which are inappropriate, unfair, and a completely wrong application of law.

The founding principle here seems to be the RAM test. The very fact that igadgets work by taking a program and copying it into RAM when you turn it on means you have made an illegal copy and are subject to a $150,000 fine under the DMCA - should the seller/overlord see fit to prosecute. From this flow all kinds of counterintuitive rights for sellers, and fatal restrictions for buyers.

So, like feudal peasants, we bow to the feudal overlord and master in order to have any use of our expensive igadgets at all. We allow them to use up half the memory with bloatware we cannot remove. We allow them to track us, to send all our personal and private data, from our every keystroke to all our unsaved documents, to their private clouds for storage and resale to other companies. And all without our knowledge or consent, let alone compensation. And we have no right or ability to stop any of it. We need 21st century laws.

To no one’s surprise, the law seeks to reinforce old ways rather than encourage innovation. Downloading a program means you don’t own it, while purchasing a box with a CD inside (of the same program) means you do own it - is where old law meets new technology.

In making his case, Fairfield examines it all from a multiple perspectives. For centuries, property and privacy were linked. What was yours was inviolable. We have lost that connection, allowing companies into our homes unbidden. And they run amok. We would not allow anyone to do this given a choice, but with igadgets, the sellers have arranged for no choice. You agree in advance, or the igadget doesn’t function.

Property rights are information, Fairfield says. They are the set of standards, rules and regulations surrounding a thing that make it private property. He says a thing is a thing when it is designed to appear that way to a human .Thingness is perception. igadgets are things, not licensed services. The 40 page end user license agreements of igadgets don’t fit that model.

Fairfield has a four part solution:
-restore ownership rights to the individual property owners
-limit the reach of contracts
-enable owners to alter smart property and stop limits on judicial redress
-implement decentralized property systems

He goes into exquisite detail to make and prove his points. It is all very readable, and intuitively correct. Clearly, the sellers have other ideas, but Fairfield is confident, for some reason, that logic and proportion will win out. I wish I shared his optimism.

David Wineberg