1 Waldman suggests that “case-by-case litigation is uniquely suited to the task” (p. 74). One reservation here is that litigation is often unaffordable for ordinary users, especially given that large data companies have very deep pockets and a strong interest in preventing tougher privacy norms from developing. Litigation will thus tend to be a long-term strategy aimed at changing the behavior of data intermediaries; that strategy will need to be supported not just by successful, high-profile litigation but by things like generous class certification or even statutory reform enabling and incentivizing regulatory agencies to act on the behalf of consumers.
2 Zacchini v. Scripps-Howard Broadcasting Company, 433 U.S. 562, 573 (1977).
3 For the critique of incentives, see, for example, Tushnet, Rebecca, “Economies of Desire: Fair Use and Marketplace Assumptions,” William & Mary Law Review 51, no. 2 (November 2009); and Kwall, Roberta Rosenthal, “Inspiration and Innovation: The Intrinsic Dimension of the Artistic Soul,” Notre Dame Law Review 81 (May 2006). My own contribution to this discussion appears in my book The Biopolitics of Intellectual Property: Regulating Innovation and Personhood in the Information Age (Cambridge, U.K.: Cambridge University Press, 2020, pp. 64–70), which revises my argument in the book chapter “Copyright between Economic and Cultural Models of Creativity” (in Joseph C. Pitt and Ashley Shew, eds., Spaces for the Future: A Companion to Philosophy of Technology [New York: Routledge, 2018]).
4 That is, entitlements generate positive externalities, a condition that might go away if property owners were allowed to try to internalize the full value of their assets. See Frischmann, Brett M. and Lemley, Mark A., “Spillovers,” Columbia Law Review 100, no. 2 (2006). The flowers example is from Lessig, Lawrence, Code and Other Laws of Cyberspace, Version 2.0 (New York: Basic Books, 2006).
5 On this, see, for example, Sunder, Madhavi, “IP3,” Stanford Law Review 59, no. 2 (November 2006), pp. 257–332; Cohen, Julie E., “Creativity and Culture in Copyright Theory,” UC Davis Law Review 40, no. 3 (March 2007), pp. 1151–1205; Tehranian, John, “Towards a Critical IP Theory: Copyright, Consecration & Control,” Brigham Young University Law Review (2012); and Boyle, James, The Public Domain: Enclosing the Commons of the Mind (New Haven, Conn.: Yale University Press, 2008). The idea that property rights are about internalization is most famously developed by Harold Demsetz. See, for example, Demsetz, Harold, “Toward a Theory of Property Rights,” American Economic Review 57, no. 2 (May 1967), pp. 347–59. The move to internalization in IP is criticized in such texts as Frischmann, Brett M., “Evaluating the Demsetzian Trend in Copyright Law,” in Review of Law & Economics 3, no. 3 (2007), pp. 649–77; and Frischmann and Lemley, “Spillovers.”
6 Radin, Margaret Jane, Contested Commodities: The Trouble with Trade in Sex, Children, Body Parts, and Other Things (Cambridge, Mass.: Harvard University Press, 1996).
7 Hull, Gordon, “Successful Failure: What Foucault Can Teach Us about Privacy Self-Management in a World of Facebook and Big Data,” Ethics and Information Technology 17, no. 2 (June 2015), pp. 89–101.
8 There is a robust literature on manipulation of users online by advertisers (quite apart from that on fake news and so forth). See, for example, Yeung, Karen, “‘Hypernudge’: Big Data as a Mode of Regulation by Design,” Information, Communication & Society 20, no. 1 (2016), pp. 118–36.
9 Fallon, Richard H. Jr., “Two Senses of Autonomy,” Stanford Law Review 46, no. 4 (April 1994), pp. 875–905.
10 Becker, Gary S., “The Economic Approach to Human Behavior,” in Febrero, Ramón and Schwartz, Pedro S., eds., The Essence of Becker (Stanford, Calif.: Stanford University Press, 1995), p. 13.