Private Law Theory

ABSTRACT
Information permeates every aspect of modern life. It is the price we pay for access to online services and the form in which we embody creative works. Law and policymaking tend to focus on first-order uses and transactions; information for access serves as the paradigmatic example. But information enjoys a robust second life – one that constitutes the true value and power that drives firms’ decisionmaking – as assets. Once aggregated and assetized, the power and risk associated with information increases exponentially.

To explore the implications of information’s second life, this Article introduces the concept of ‘untethered information’. Assetization depends on severing the connections between the subjects of information and the control, use, and monetization of information. This Article explores three examples of assetization to develop the concept of untethered information: personal information privacy, music streaming services, and generative AI development. In each of these industries, disparate areas of law enable firms to untether information and leverage it as they see fit. Understanding the role of untethered information in these contexts provides a useful framework for analyzing related policy issues and potential legal reforms.

This Article contributes to literatures in privacy and copyright law. First, it highlights the increasing prevalence of assetization across information industries. Second, it demonstrates that existing law and policy in the industries of data brokerage, creative works, and AI function as de facto public subsidies in favor of a relative handful of private firms. Third, it deploys the concept of untethered information to consider, and critique proposed legal reforms and associated theories of privacy and copyright law. This analysis casts doubt on the utility of both existing and proposed frameworks of privacy protection, as well as on the economic incentive theory of copyright protection that has dominated policymaking for centuries. Finally, it contributes to evolving debates about both the legality and normative desirability of generative AI models.

Haley, Thomas, The Second Life of Information (July 1, 2025), 77 Florida Law Review 1607 (2025).