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Non-fungible Tokens and Intellectual Property Law

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Non-fungible Tokens and Intellectual Property Law ( non-fungible-tokens-and-intellectual-property-law )

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It is equally important for practitioners to also understand what an NFT is not. NFTs are not: • The underlying asset itself. Think of an NFT like a record of a deed for real property, not the real property itself. The recorded deed shows the world who owns the real property (ownership), the chain of title for the real property (transfer history), and can include additional language such as restrictions, easements, and future conveyances (akin to smart contract language). But the recorded deed is not the real property itself, just like an NFT is not the underlying asset itself. • Limited in number. While NFTs are non-fungible, they are not limited in number like some cryptocurrencies, such as bitcoin. The only limits on NFT creation are the creativity of individuals and the computational limitations of a chosen blockchain. • Representative of a unique asset. Each NFT itself may be unique but the underlying asset an NFT represents may not be unique. For instance, outside the technical limitations of a chosen blockchain, there is nothing to prevent an artist from creating one million NFTs representing one million copies of the same piece of art. NFT Marketplaces and How They Function Because it would be extremely inefficient for users to find buyers and sellers of NFTs on an ad hoc basis, NFT marketplaces have become the overwhelming choice for transacting NFTs. Marketplaces are almost as diverse as NFTs themselves. They: • Exist on different blockchains • Can specialize in specific types of assets or be generalized • Charge different types and amounts of fees • Can restrict access or be open • Have different use agreements, licenses, and rules Marketplaces may or may not require users to create accounts to utilize the marketplace. They will, however, require a user to link his or her “blockchain wallet,” which has the effect of linking the user’s “blockchain account” to the marketplace. These terms are briefly discussed below, along with some examples of common NFT marketplaces. Blockchain Accounts A blockchain account is essentially an address on the blockchain. It allows the blockchain ledger to associate a specific token—such as cryptocurrency, an NFT, or another type of crypto token—with a specific user. Blockchain accounts are anonymous. For instance, an Ethereum account number starts with the prefix “0x,” which is followed by a 40-digit alphanumeric code; there is no personally identifying information. Users can, however, choose to publicly associate themselves with their blockchain accounts, thereby removing anonymity. Blockchain Wallets Because the blockchain is a ledger containing millions of entries (Ethereum currently processes over one million transactions daily) between 40-digit account numbers, it is practically impossible for a user to read the blockchain. Blockchain wallets are computer code and programs that read the blockchain and display for the user the assets listed as owned by the user’s blockchain account. The wallet also allows the user to conduct transactions. Blockchain wallets do not hold any crypto tokens. Rather, if a blockchain account is like a bank account (a number on a ledger), a blockchain wallet is like a bank’s application on a smartphone (giving the user access to see what is in the account). Common NFT Marketplaces Some common NFT marketplaces are: • OpenSea. The largest NFT marketplace. It is considered a “catch all” marketplace, as it does not focus on any specific class of underlying asset. • Rarible. Issues the RARI token—conveying a form of “ownership” in the platform—to active users of the platform, allowing those users to vote on certain issues. Rarible does not require a user account to utilize the marketplace. It also connects to OpenSea to broaden its reach. • NiftyGateway. Markets itself as a platform for artists to sell digital works via timed “drops” that allow the creator to collect a royalty on subsequent resales of the original work. • NBA TopShot. Offers officially licensed collectibles in the form of video clips, or “moments,” of NBA players. • Digital Trading Cards. Curates listings from OpenSea for NFTs in the collectibles and trading card spaces. Types of Works Being Minted into NFTs When creating ERC-721 in 2018, the standard’s creators stated that NFTs are “also known as deeds,” that their rationale for creating the standard was “tracking distinguishable assets,” and that future uses “include

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