Dispersing the Cloud: Reaffirming the Right to Destroy in a New Era of Digital Property [Dagger]

By Martin, Daniel | Washington and Lee Law Review, January 1, 2017 | Go to article overview

Dispersing the Cloud: Reaffirming the Right to Destroy in a New Era of Digital Property [Dagger]


Martin, Daniel, Washington and Lee Law Review


Table of Contents

I. Introduction.......468

II. The Origin and Development of the Right to Destroy.........474

A. Ancient Roots........474

B. At Common Law.........476

C. Limitations of the Right............479

1. Caselaw Exceptions..........479

2. Scholarly Disapproval.................481

D. The Right Today.........484

III. Understanding the Cloud..............485

A. The Digital Property Question..............485

B. The Rise of Cloud Computing..............490

C. An Overview of Cloud Storage............492

IV. Property Rights Lost in the Cloud............496

A. The Control Problem.....496

B. The Peace of Mind Problem.....501

C. The Need for a Solution.....505

V. Reclaiming the Right to Destroy.506

A. Why We Should.....506

1. Waste and Data.......506

2. The Value of Deleting......510

B. How We Can.......514

1. Securing the Right.....514

2. Enforcing the Right........519

C. One Caveat: The Trouble with Terms.......522

VI. Conclusion........524

I. Introduction

Since October 30, 2006, blender manufacturer and seller Blendtec has advertised its products on the internet by positing a largely rhetorical question: Will It Blend?1 The premise is ingeniously (and humorously) simple: Blendtec founder and CEO Tom Dickson shows firsthand the power of his company's blenders by blending unconventional items, from toy cars2 to cans of soup.3 In a 2014 episode, the featured item was a brand new iPhone 6 Plus.4 The video proved popular,5 but reactions, unsurprisingly, were mixed. Some skeptics remained unconvinced that the blended iPhone was real,6 some appreciated the humor,7 and some expressed, with varying degrees of clarity, outrage at the sight of Mr. Dickson quite literally reducing a piece of technology worth hundreds of dollars to dust.8 Of course, these responses were largely visceral. They are, however, fairly representative of the intellectual climate surrounding the property right underlying Blendtec's attempt to promote its products: the much-maligned right to destroy.9

Though traditionally recognized as a fundamental property right,10 the right to destroy has in recent decades come under attack.11 Congress has restricted the right with respect to artistic creations,12 courts have carved out several public policy exceptions to the exercise of the right,13 and some commentators have called for either its partial or total abrogation, primarily on the basis of waste.14 The right has few defenders; to the extent it is not challenged the right to destroy has been largely forgotten, sparsely receiving scholarly attention.15 Even Black's Law Dictionary has seemingly swept the right to destroy under the rug.16

This treatment might make some sense within the realm of tangible property, especially real property, the context in which the right is usually challenged.17 After all, why should we, as a society of finite resources, tolerate the destruction of some of these resources at the whim of their owners? But property evolves. What was once physical can now be digital.18 And digital property, though once primarily stored on local memory drives, is now often stored on "the cloud"-that is, on servers maintained by third-parties-meaning that they can be accessed through any device with internet connectivity.19 When it comes to such property, the problem is not ensuring preservation but confirming destruction.20

Storing our files-videos, songs, games, and documents-on the cloud offers unprecedented convenience.21 Convenience, however, has its costs. The rapid adoption of cloud-based storage services threatens two related but distinct aspects of property ownership: control and peace of mind.22 The right to destroy once arguably served to protect these interests: it (1) allowed the property owner to have exclusive say in the ultimate fate of her property and (2) gave the property owner complete certainty that no other would, or could, use the property. …

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