FOREWARD (by Douglas DePeppe, Esq.): Law Student Intern Samuel Mercaldo wrote this excellent article about the attributes of owning data, against the backdrop of the current strike in Hollywood and the threats of AI. His thoughtful analysis asserts that decentralized ownership control over one's digital identity could solve the unfair displacement and job loss risks of generative AI. I concur in Sam's assessment, and greatly admire and appreciate his research and advocacy of data ownership solutions.
By Samuel Mercaldo
The latest Hollywood strike is less about money and more about data rights. More specifically, it is about the non-consensual use of an actor's likeness, data transparency and the future use of AI within the industry. In addition to complaints about streaming, the strikers are forming a picket line to protest the rise of AI in the industry. The studios want to use AI to write films and TV shows and effectively cut out the writers from the creative process. Additionally, the studios have put forward several proposals regarding AI and the use of the actors' likeness. One proposal put forth is that the studios be allowed to scan the facial features and body of background actors, thereby allowing the studios to reproduce their likeness and use AI to populate the background of scenes during postproduction. And the background actors would only receive compensation for the day they were scanned.
This move was described as straight out of an episode of Black Mirror by the Screen Actor's Guild's chief negotiator Duncan Crabtree-Ireland. Further, the President of the Screen Actors Guild, Fran Drescher, declared during the union's press conference on July 13th, "all actors and performers deserve contract language that protects them from having their identity and talent exploited without consent and pay."
This latest strike is representative of the current societal discussion regarding technology. Namely, as to where data fits within the current legal framework. Currently, data rights management operates under a privacy framework. However, while this framework has its attraction, there is a strong argument that data should be placed within a property rights framework. The next evolution of the world wide web – Web3 technology (aka blockchain) – with its decentralized architecture and features for individual control over data rights management, is well-suited for data ownership and enforcement under a property framework. Indeed, Gavin Wood, who coined the term "web3" in 2014, said about Web3, "[C]omponents like hardware wallets... will represent a person's assets and identity online, allowing us to pay for something, or prove who we are..."
Decentralized, incontrovertible control of one's data is a step toward full data ownership, which is a central feature of the property framework. The historic big three of property law are real estate, personal and intellectual property. Real property is tangible, immoveable land and natural resource-based property; whereas personal property is tangible but moveable property; and intellectual property refers to intangible ideas born of the mind and the result of human creativity and ingenuity. However, data doesn't fit neatly into any of the three.
Data is intangible at least so far as it lacks a physicality for touch. However, data isn't necessarily an idea. Data can contain ideas insofar as it is a medium for films, TV shows, and music. However, unlike paper or other mediums, the data itself (that is the 1s and 0s) has worth beyond simply being a medium to communicate and showcase a creative piece or invention. Perhaps what sets data apart from a traditional medium for information, such as paper, is that it is a medium that is itself intangible. However, even this intangibility differs from the intangibleness of intellectual property. An idea for a novel or an invention exists in the etheric platonic realm of forms. It has no proper physical form beyond what imitation can be formed from crude matter. Conversely, data does have a physical component. At least insofar as one includes electricity and magnetism in that department, and one doesn't exactly touch electricity. Further, it cannot be understood without the translation by an electronic device.
In its common use, it is more like a photograph in that it can contain personal and even sentimental information. Like personal property, it is moveable and transferable between computers, servers, and other devices. Further, data can be commingled, and metadata can be embedded within other data objects, creating new information. But what data can do that physical and personal property cannot readily do, is that certain data can be inextricably intertwined with and define an identity, such as in the case of a credit score.
The point here is that data can be inherently associated with one's identity, and yet data also possesses traits of property. Why should a digital photograph be treated any differently than a framed photograph under the law? The Screen Actors Guild, for one, should be advocating for likeness rights protections under property law. Fran Drescher should look up Gavin Wood and Web3.
Wood is one of the original leaders of the decentralized web. The current iteration of the web (i.e., Web2.0) is based on interactivity and social media, and most importantly, the centralization of data. It is the Internet of Google, Napster, Myspace, and Facebook, and of censorship and centralization. Wood has elaborated that among the many improvements that Web3 will bring is the decentralization and democratization of the web.
In a 2018 medium post, Gavin Wood wrote that, "centralization is not socially tenable long-term, and government is too clumsy to fix things" and that Web3 will be "an executable Magna Carta." And that Web3 would become "the foundation of the freedom of the individual against the arbitrary authority of the despot." Wood further predicted that Web3 would provide new methods to safeguard personal assets and identity. These new developments, says Wood will lead to a new global economy, new forms of business models and markets, and bring about a whole new meaning to the phrase "the Digital Age."
So why is decentralization so important, especially in the context of data ownership? Web3's decentralization means that its new architecture will enable artists, athletes, and all of us, to control usage of one's own data, including our digital identity. With usage control comes rights and decisions about what to keep, sell, license, restrict, and so on. Those are the bundled rights of ownership under property law. Further, Web3 decentralization will provide new methods for advertising and marketing as well as a means for the person to receive fair compensation. This means that writers and actors on strike in Hollywood will have a mechanism to protect their creation and likeness. In effect, what Web3 enables is a suite of new self-help remedies to give the user and consumer control over their data. This control and ownership will create a new legal framework to enforce data ownership rights.
The writer and actors' strike in Hollywood is symbolic of the overarching societal controversy regarding data, particularly with the advent of AI. Currently, data is strapped into the privacy framework. Despite certain aspirational attributes of this framework, a privacy framework cannot protect us from the rampant data misuse risks posed by generative AI. Conversely, placing data within a property framework would begin to garner the sort of adequate protections and safeguards that will offer the remedies called for in Hollywood, and across society.
It isn't the victors who write history, rather it is the literate. Hollywood studios shouldn't be picking a fight with society's artists by empowering AI technology in ways that steal a person's digital identity. The laws of property, and owning data, which are inextricably linked with Web3 technology, will toss digital identity theft into the dust bin of history.
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