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In this Essay I argue that the basic case for property is still a very strong one. Individual control over individual assets still makes sense. I defend property rights in digital creations in the face of two general scholarly critiques: The first is what I call digital determinism -- the idea that the central driving force behind IP policy should be the technological imperatives of digital creation and distribution. I argue that the inherent logic of digital technology should not drive IP policy. Second, I discuss the idea that the distinctive feature of digital technology, and therefore the thing that policy should most seek to encourage, is collective creativity. I argue that individual creators are still crucial, and that IP law does not interfere with widely dispersed collective works such as Wikis. Finally, I push for recognition that IP policy should not be blinded by the promise of massive amounts of amateur content; solicitude for what I call "creative professionals" -- people who make a living creating high-quality content -- has been and must continue to be an important part of IP law.

Property rights and contract law are two of our most basic legal categories. Many legal scholars describe what makes them different; this Essay describes how they work together to promote economic exchange. Incorporating the insights of both “transaction cost” and “new property rights” economics, it identifies two crucial contributions that property rights make to real-world contracting: (1) precontractual liability, or protection for disclosure of sensitive information in the period leading up to contract formation; and (2) enforcement flexibility after a contract is executed, in the form of many subtle but important advantages that accrue to a contracting party who also holds a property right. This Essay argues that property’s “transactional” role is growing in importance, as the “new economy” ushers in a more transaction-intensive industrial structure featuring greater numbers of smaller, more specialized firms.

This brief Comment was prepared as part of a conference on Intellectual Property and Social Justice at U.C. Davis Law School in March, 2006. I argue here against a broad legal right to "remix" digital content -- to freely alter or modify pre-existing copyrighted works. I first note that remix culture is flourishing under our current legal regime, partly as a result of high enforcement costs on the part of copyright owners, and partly due to voluntary waivers of copyrights by content owners who see a market opportunity in encouraging remixing. Next, I argue that despite widespread de facto remixing, remixers should not be given a legal right to remix any and all content. I contest the assertion by some theorists that remixing is necessary for the self-actualization of people living in a media-saturated world. I note that themes of rebellion and resistance dominate the narrative of the pro-remix literature, and introduce a counter-narrative: the struggling content creator, trying to make a living creating and selling digital content. Because these creators have a dignity interest in what they create, and because intellectual property rights can help them make a living at what they do, the interests of remixers ought not automatically trump creators' claims.

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