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Episode 224 of 235

What Exactly Do You Get When You Buy an NFT? Three Lawyers Discuss - Ep.224

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Duration: 01:05:58
Olta Andoni, fintech and IP Attorney at Zlatkin Wong and adjunct professor at Chicago Kent College of Law, Tonya Evans, visiting Full Professor of Law at Penn State Dickinson Law School and host of the podcast Tech Intersect, and Stuart Levi, co-head of the Intellectual Property and Technology pract
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Olta Andoni, fintech and IP Attorney at Zlatkin Wong and adjunct professor at Chicago Kent College of Law, Tonya Evans, visiting Full Professor of Law at Penn State Dickinson Law School and host of the podcast Tech Intersect, and Stuart Levi, co-head of the Intellectual Property and Technology practice at Skadden Arps and coordinator of the firm's Blockchain and Digital Asset practice, break down the legal issues surrounding NFTs. In this episode, they discuss: how the law looks at non-fungible tokens (1:25) why owning an NFT is different from owning the rights to the underlying asset making up the NFT (3:12) problems that blockchain solves for creators  (5:09) how corporations (aka content intermediaries) are handling NFTs (6:53) what rights the purchase of an NFT gives a buyer (11:51) derivative artwork, the fair use copyright law, moral rights, and how U.S. law views NFTs (15:53) how to determine the jurisdiction of an NFT (25:00) what type of legal recourse is available to artists whose art has been stolen and redistributed as an NFT (32:37) the differences in the terms of services between NFT marketplaces  (36:26) why the first sale doctrine may not apply to digital assets (43:16) what a buyer is getting when purchasing a blockchain license (46:12) how NFT creators should protect their work (51:43) whether a fractionalized NFT is a security (55:25) how NFTs will change the business of content creation (58:44)   Thank you to our sponsors!  Download the Crypto.com app and get $25 with the code “Laura”: https://crypto.onelink.me/J9Lg/unchainedcardearnfeb2    Indexed Finance: https://indexed.finance/    Episode Links   People Tonya Evans Twitter: https://twitter.com/IPProfEvans Penn State Dickinson Law: https://dickinsonlaw.psu.edu/tonya-m-evans  Relevant content: https://podcasts.apple.com/us/podcast/tech-intersect-59-ping-prof-2-non-fungible-tokens-nfts/id1493143898?i=1000512485580 https://clarivate.com/darts-ip/blog/copyright-blockchain/  https://clarivate.com/darts-ip/blog/intro-to-ip-and-blockchain/  Olta Andoni Twitter: https://twitter.com/AndoniOlta?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor Zlatkin Wong: https://zlatkinwong.com/en/  Relevant content: https://www.coindesk.com/stop-tokenizing-art-you-dont-own  Stuart Levi LinkedIn: https://www.linkedin.com/in/stuartlevi/ Skadden: https://www.skadden.com/  Relevant content:  https://www.mondaq.com/unitedstates/fin-tech/799182/emerging-discovery-issues-in-blockchain-litigation    Legal Links Fair Use Doctrine: ht
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let's start with the basics and since there's multiple speakers, I'll just actually call on one person to begin so we can get acquainted with their voices also. What would you say? N. F. T. S actually are in a legal sense? I think that's a great question. And um and it's hard I think to get a straight definition about N. F. D. S in a legal sense. But first of all, what do they digitally mean? And for myself, I think despite the fact that there are many definitions out there to me, they represent just a digital asset in a serial form. And the way how uh that serial number kind of addresses that digital assets and what is included in that code. That kind of raises a lot of more legal questions that probably we're going to uh to talk about in this podcast and Tanya or Stewart. Do you want to add anything to that? Well, sure, definitely. I I certainly agree. And when I think of N. F. T. S. They are a way to prove ownership of an underlying asset and it is a record that points to the underlying asset as well. And so it's helpful for people to understand that the N. F. T. In addition to evidencing ownership also points to where the content is at the time that the N. F. T. Was created. Yeah, I think those are totally agree. Those are great points. And I think, you know, sometimes conceptualizing it the way we might ask if I had a piece of paper that indicated some sort of ownership rights in some sort of work, um you know, what is what is the legal piece of paper mean? Um is a good way to look at N. F. T. S as well, even though obviously there's some some clear differences in terms of what uh rights they're attached to. And so actually I did want to ask Tanya about that, you know this ownership idea. So because I did see online that someone was saying this was on the Techno Lama blog and they were saying that there's a misperception that an N. F. T. Is a digital title to be original like that then that's an actual claim of property. But this person was saying that actually an entity is more like a receipt, the U. N. Assigned version but maybe not the actual thing itself. Is that what you meant? I guess it depends. I hate to give you a lawyerly answer. So you know by default when I think and it also in some sense depends on what the underlying asset is. So I absolutely understand the uh emphasis or the nuance in ensuring that um that it's not an ownership of some original thing but it it truly does depend. And you know when I think of an analog compliment today and I think with you know, physical art or I've heard other um rough analogies to Stuart's point some evidence of, let's say real estate that my deed is not the property, but it is my ability to exercise control and to exploit. Not an exploitative way, but to actually transact with that physical property the same way I think of some type of title of ownership to a physical piece um that I might have in my home to that specific physical asset. So not, and we'll certainly get to this later about the underlying intellectual property, the intangible aspects of ownership, but literally the representation of that unique file, that unique digital asset, that unique physical assets. So that's in the way that I understand it. So I don't know if it's necessarily contrary point of view, but a bit of a nuance. And so before we dive into the meat of today's discussion, I actually also wanted to ask you Tania, can you briefly describe what problems exist for creators in the internet age that NF TSR Blockchain technology can resolve because I notice you've written about this before. Yes, there are a host. I'm really excited about so many different ways where when we think of the end of the last century and the run up when I think of peer to peer technology and napster and grokster and all of the challenges too, um copyright intensive industries that relied on some type of ability to say if I have a copyrighted asset that someone can't duplicate it and what Satoshi did? Whoever he she or they are um you know, this idea of um solving for the double spend in the Cryptocurrency space is the same idea of protecting uh the ability of someone to not only have a perfect digital copy of something, but then to allow 100 or 1000 of their closest are not so closest friends to actually copy it as well. And interestingly, the same technology that was a great challenge in copyright intensive industries now, because of the nature of Blockchain technology, The persistence of that information and a quote unquote immutable form, that might be a way for creators to actually protect with the very same technology in a different form that they weren't able to do at the end of the 20th century. And the ramp up of the 21st
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