This post is a little in the weeds - as in it is highly detailed and you do not need to understand this article. It's posted here to continue to provoke a discussion about some of the issues involved in the ideas underlying Digital Estates.
The idea that the res digital is a new form of property is related to the current blooming of all things crypto and the emergence of Non-fungible tokens (NFTs), but is quite separate from it.
The idea that a digital artifact, a certain pattern of bits, along with some meta-data (or provenance) giving it context for interpretation, can be actual property is not up for dispute. People are buying and selling such things for all manner of prices.
But the idea of res digital, a piece of property that has only meaning within the digital realm, (as in there is no physical manifestation of the property like a painting or a piece of jewelry, or a house and its land) - it exists only in a true digital form, and any physical manifestation of it is merely a copy and not the original.
Res Digital is always, first and foremost, something which was created in a digital form, using a digital tool of some kind, and kept, in it’s original setting as a digital record on some kind of electronic storage.
Over the centuries, the law has been used to manage different forms of ownership, from real estate to personal property. The last time a new form of property emerged it was the book. The book, a document created by a human, “published” with the intention that many copies will be made of it, and subsequently sold to other people, people who “owned the book” but not really. No, when you buy the book, you buy a copy of it, but you can do a bunch of things with it. You can read it. You can let it get washed over by a wave at the beach. You can destroy it. You can even sell it to someone else. But only your copy of the book, the bound bundle of dead tree pages with various marks of ink on the pages.
When you buy a book, you don’t actually acquire the book in its entirety. The author and or the publisher retain all sorts of rights to the book itself; the ability sell it in different forms; sell the rights to make a movie from it; or even to place it into a “literary estate”. So yes, all this was thought out about 500 years ago by lawyers who realized the book was a different form of property than a cow, a necklace, or even loaf of bread.
And then from the 1960’s onward, software caused a bit of kerfuffle. Lawyers quickly realized that software didn’t work like the book. They decided to just issue and sell licenses to software. You didn’t buy the software, you purchased a right to run the software, but otherwise you couldn’t really mess with it. (well, you could try, but you couldn’t resell, lease, etc this stuff.) And selling it in. yard sale? the operating system software of a computer (with or without a computer that could run the software)? Yeah, wink wink, nudge nudge, that was probably okay, but no one ever really looked too closely, because at that point, it was kind of like a book, right? One could still not buy second hand software, and start making copies and selling those… that was a violation of the original purchase terms, and if you looked closely, you probably didn't have the right to sell it second hand if you were the first license purchaser.
(which brings up the whole notion of these legal agreements we just “click” on because we just want to use the thing being licensed. few, if any one, actually reads such things, and if they do they are probably an intellectual property lawyer, a not real user(!) But these “legal clicktracts” are like the gate at a parking lot, just open dammit, I got things to do)
And then something happened. Maybe for you it was the first time you used MacDraw or MacPaint. Or maybe it Microsoft Paint. You started to create things that were really only digital, through and through. A quick sketch in MacPaint, when saved to the disk, becomes a piece of digital property. It is an artifact, a real res digital. It has no other more pure, more original form that the bit pattern saved on the disk. If you print it, that is only a copy on paper. If you email it to me, it is a copy, I don’t own it, it’s yours, right? Right?
If I send it on to someone else, it’s still yours right? Even if I claim I made it.
I gotta quit. my wrist hurts.