The Ninth Circuit’s Broad (and Wrong) Standards for Conversion–Taylor v. Google

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Publish Date:
March 14, 2024
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Technology & Marketing Law Blog
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Summary

Lots of intangible items have value and are bought and sold, but they aren’t traditionally treated as property under the law.

For example, consultants and lawyers charge for their time. And they value and sell it through contracts. Does that make a lawyer’s time property? Not according to our current legal understanding of property rights. And that’s almost certainly a good thing.

If we define property as expansively as the Ninth Circuit has here, lots of things that we don’t think of as property can be labeled as property subject to conversion. And that’s almost certainly a bad thing.

Many online legal domains blur the line between property and contract. We don’t need another.

Mark Lemley observed this nearly twenty years ago, but if you allow private parties to define property rights through contracts, it takes the job of defining property out of the hands of the law and subject to the whims of the preferences of private parties. And since most contracts these days are contracts of adhesion with no room for negotiation, with token forms of notice and consent, that can lead to a parade of horrible second-order negative effects.

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