September 14, 2017 Last Updated 2:52 pm

Joshua A.T. Fairfield’s ‘Owned’ examines the ‘feudal system’ of digital property rights

Fairfield, a professor of law at Washington and Lee University, argues that there is a crisis of digital ownership where consumers ‘risk becoming digital peasants, owned by software and advertising companies’

The issue of digital property ownership recently, and surprisingly, came to the forefront during Hurricane Irma. Select Florida Tesla car owners received a notice that there was a software update available for their vehicles. The update, once applied, suddenly allowed gave their vehicles about a 30 mile increase in range. The idea was to help Floridians get out of harm’s way. But what it really did was remind the Tesla owners just who owns the software in their cars. It turns out that the only thing that had separated out two different models of Tesla — one that offered more range between charges, and one that didn’t — was the software in the vehicle, something that Tesla could change at any time.

OwnedIn a way, this is the issue at the heart of Joshua A.T. Fairfield’s book Owned: Property, Privacy, and the New Digital Serfdom, from Cambridge University Press.

Fairfield is a Professor of Law at Washington and Lee University, and a frequent writer on digital property and electronic contract issues.

“We own and control fewer and fewer of the products that we must use to function in modern society,” Fairfield writes. “Many computing devices (iPads, for instance) run only those programs approved by the device seller. We cannot even tell our devices not to reveal our personal data.”

“This is an untenable position in an information-age society,” Fairfield believes, and so he urges readers to promote changes in the laws governing such things, believing that right now we are living in a digital rights environment closer to feudalism than freedom.

Fairfield says that two things have created our current situation: the rise of internet technologies and changing revenue models, something publishers should be very much familiar with.

“First, internet technologies created an unprecedented ability to copy intellectual property — file sharing services spread pirated music like wildfire and fueled the music industry’s fears for its own future — before they created the ability to track and verify individual copies of electronic information,” Fairfield writes.

Then, the rise of free content created a situation were “software providers needed a revenue model that circumvented internet users’ refusal to pay for content that they could obtain — usually illegally, but with some degree of safety — for nothing. So software providers monetized information about their customers by surreptitiously monitoring everything their users typed, clicked or did, and selling that information to advertisers who could use it to extract more and often costlier deals from their customers.”

Fairfield’s observations are somewhat self-evident, we see examples of them every day, but the author gives the readers the background information, the cause and effect, and then lays out what needs to be done about, best summed up in the line “ordinary property ownership should apply to digital and smart property.”

Joshua A.T. FairfieldAt the heart of the problem is that the high tech products we buy today are about both hardware and software, where you may own the hardware, but may discover, sometimes at the worst times, that you do not own the software. An example of that may well be that Tesla situation, where the company can limit your driving range simply through software, and extend it (or limit it again) when they wish.

Fairfield’s premise is easily explained early in the book, then he proceeds to deal with issues such as property and the internet of things, before concluding with his recommendations for solutions.

Owned is a well researched book, as you might imagine from a professor of the law, with plenty of often fun and entertaining — and scary — examples of what companies can do today, and how by simply, and often mindlessly, clicking “I Agree,” we surrender the rights to many of the things we think we “own”.

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