infoJustice

A recent paper proposed a series of private-law-centered solutions to overcome data lockout in situations where digital platforms are using contract law to prevent the use of data for research purposes. Although companies generally lack IP rights over the data that’s hosted on their digital platforms, they control its use via digital locks and contractual limitations. This discourages researchers from using the wealth of data available on digital platforms, since it may create legal risks in the form of breach-of-contract lawsuits.

The authors suggest the following private-law-based solutions to this problem: 

1. Researchers who wish to access and use platform data without explicit permission should be able to contest breach-of-contract claims made against them by claiming copyright preemption. 
2. Courts should facilitate platform data research by narrowly interpreting boilerplate contractual bans on data access.
3. Nuisance law may support platform data research by empowering researchers to demand the removal of technological barriers that hinder access to public, non-proprietary data.

Although private law solutions do not grant researchers an affirmative right to research, this paper also concludes that combining private law solutions with regulatory intervention that creates a right to research would offer the most effective means of conducting research on platform data.