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This paper will first describe some of the unique features of blockchain technology and ‘smart contracts’ used in NFTs. Next, we discuss four ways in which the economic and social potential of NFTs can be derailed, leading to ‘digital enclosures’ whereby large institutional copyright holders reap most of these benefits for themselves through illegitimate – and sometimes unlawful – rent-seeking, as well as the very real potential for fraudulent activities by malicious actors. Finally, we offer some initial suggestions on how to regulate NFTs and blockchain technology to prevent these illegitimate forms of rent-seeking and the ‘digital enclosures’ to which they give rise. Future governance in this area should be directed toward protecting individual artists, content creators, and small businesses over large institutional copyright holders, as do many current laws and regulations.

NFTs and the enclosure of the digital realm