Vol 7 No 1 - Roger Williams University School of Law

the subject. Demographic information is constantlycollected on all consumers by marketers, mail-ordercatalogues and retailers. However, we are unaware ofany court that has held the value of this collectedinformation constitutes damage to consumers or unjustenrichment to collectors.339While the court was apprehensive about recognising this personalclaim for the value of the private data, some academics have goneas far as suggesting that people should be recognised in law aspossessing a property (intellectual property?) right in theirpersonal information.340 This would allow people to protect suchinformation through law and to charge for it in the market place.Samuelson has cautioned against such an approach, arguing thatit would distort the rationale for having property rights ininformation, which could lead to higher transaction costs and aworsened situation for the data subject.341 She prefers a form oflicensing that licenses private information along the same lines astrade secret licensing, where one contractually structures theusage rights of the information before disclosure.342It can be seen from this brief analysis that the growing law onprivacy or data protection, especially in the private sector, willhave a significant impact upon the shape and content of digitalproperty rights.IV. CONTRACTUALLY DEFINED DIGITAL PROPERTYThe contract, an agreement between two or more parties, isthe foundation of many privately ordered relationships and isincreasingly being used to regulate informational propertyentitlements in the digital environment.A. Contractually Created Informational Property RightsContractual rights can be used to extend public or legislativerights to informational value, especially in the area of data339. In re DoubleClick, 154 F. Supp. 2d at 525 (footnotes and citations omitted); seealso Weld v. CVS Pharmacy Inc., 10 Mass. L. Rptr. 217 (Mass. Super. 1999).340. See Cohen, supra note 321; see also Jessica Litman, InformationPrivacy/Information Property, 52 Stan. L. Rev. 1283 (2000).341. See Pamela Samuelson, Privacy as Intellectual Property, 52 Stan. L. Rev. 1125(2000).342. See id.