RFID and Other Embedded Technologies: Who Owns the Data?

Santa Clara Computer and High Technology Law Journal 695 (May, 2006).

Lars S. Smith

Abstract by Robyn R. Smith

This article focuses on an often-overlooked aspect of radio-frequency identification (RFID) technology – ownership of the harvested data.  Professor Lars S. Smith[1] of the University of Louisville’s Brandeis School of Law explores the statutory and common-law sources of data ownership to determine: 1) who enjoys legal ownership of the data collected and transmitted by RFID tags; and 2) whether access to the data can be controlled.

Retailers are currently able to use RFID technology to track goods through the supply chain.  Small RFID tags embedded in goods and packaging currently transmit signals that convey location information, but more sophisticated tags are being developed that can gather and transmit more complex information.  This infant technology is poised to revolutionize inventory and distribution systems, but it will also change the way firms gather information about their consumers.  When RFID technology evolves to the stage at which it actively gathers and transmits information about the buyers of goods, can the gatherers of the information claim to own it?  Can the owners of the goods – those who create the information – claim to own it?  Currently, the law provides no clear guidance for determining the ownership of RFID data, so Professor Smith seeks to reconcile existing data-ownership law with this new technology.

In many instances, resolving legal principles with RFID issues is like trying to fit the proverbial square peg[2] in a round hole; statutes’ drafters and judges simply have not imagined the legal difficulty in determining this sort of ownership.  This article presents many theories of ownership, such as trade secrets and copyright protection, applying legal precedents and codified law to the unique features of RFID technology.   The article explains the difference between ownership of the RFID hardware and ownership of the data it transmits, distinguishing the legal rights associated with each.  Professor Smith also explores the ability to control access to the transmitted data, especially when the data itself is not “owned” by the party seeking to limit access.

Professor Lars S. Smith is a Professor of Intellectual Property Law at the University of Louisville: Louis D. Brandeis School of Law.
Reviewer Robyn R. Smith is a student at The Brandeis School of Law, J.D. Candidate 2008, and worked as a research assistant for Professor Smith on the article, which is the subject of this abstract.

[1] Also known as “Waldo” to his research assistants.
[2] Sarah Jessica Parker was not harmed in the creation of the article or this abstract.