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The quarter century since Barlow’s writing allows us to assess his prophecy. The economy moved in the very direction that Barlow anticipated—from an economy focused on the ownership of things to an economy based on services and experiences. In high-income countries, services now account for three-quarters of the gross domestic product.

But intellectual property proved more resilient and adaptable than Barlow predicted. Intellectual property law both offered exceptions where necessary, while simultaneously expanding to cover new forms of creativity and activities. In this short essay, we argue that, for good or ill, intellectual property has reconfigured itself for an economy driven by information and experience.

But the evolution is hardly complete. New forms of expression keep testing the limits of intellectual property. Consider the blockbuster game Fortnite. Epic Games offers Fortnite game play for free—but users pay for virtual clothing or various “emotes”—dances that allow users to express themselves online during in-game play. Indeed, Fortnite players paid some $2.4 billion in 2018 for the right to engage in such expressions—literally, to “emote.” Internet entrepreneurs have figured out a way to commodify dancing itself. Barlow believed that the internet would liberate us from the commodifying forces of intellectual property—but rather, the internet brought commodification into previously intimate, sacred spaces. This essay considers IP in expressions of joy and shared meaning online in the form of emotes, GIFS, and memes: the stuff of which dreams are made. These aesthetic experiences bring playfulness and humanity to the internet. Are they the proper subject of intellectual property? Are such forms of cultural innovation and appropriation better addressed by ethics or law?

Publication Citation

Duke Law & Technology Review, Vol. 18, Special Symposium Issue, 143-161.