Thursday, July 14, 2011

Copyright Erodes Property℠

Copyrights and patents differ from tangible property in fundamental ways. Economically speaking, copyrights and patents are not rivalrous in consumption; whereas all the world can sing the same beautiful song, for instance, only one person can swallow a cool gulp of iced tea. Legally speaking, copyrights and patents exist only thanks to the express terms of the U.S. Constitution and various statutory enactments. In contrast, we enjoy tangible property thanks to common law, customary practices, and nature itself. Even birds recognize property rights in nests. They do not, however, copyright their songs.

Those represent but some of the reasons I have argued that we should call copyright an intellectual privilege, reserving property for things that deserve the label. Another, related reason: Calling copyright property risks eroding that valuable service mark.

Property as a service mark, like FedEx or Hooters? Yes. Thanks to long use, property has come to represent a distinct set of legal relations, including hard and fast rules relating to exclusion, use, alienation, and so forth. Copyright embodies those characteristics imperfectly, if at all. To call it intellectual property risks confusing consumers of legal services—citizens, attorneys, academics, judges, and lawmakers—about the nature of copyright. Worse yet, it confuses them about the nature of property. The property service mark suffers not merely dilution from copyright's infringing use, but tarnishment, too.

As proof of how copyright threatens to erode property, consider Ben Depooter, Fair Trespass, 111 Col. L. Rev. 1090 (2011). From the abstract:
Trespass law is commonly presented as a relatively straightforward doctrine that protects landowners against intrusions by opportunistic trespassers. . . . This Essay . . . develops a new doctrinal framework for determining the limits of a property owner’s right to exclude. Adopting the doctrine of fair use from copyright law, the Essay introduces the concept of “fair trespass” to property law doctrine. When deciding trespass disputes, courts should evaluate the following factors: (1) the nature and character of the trespass; (2) the nature of the protected property; (3) the amount and substantiality of the trespass; and (4) the impact of the trespass on the owner’s property interest. . . . [T]his novel doctrine more carefully weighs the interests of society in access against the interests of property owners in exclusion.

Although I do not agree with every aspect of Prof. Depooter’s doctrinal analysis, he correctly observes that trespass law includes some fuzzy bits. Nor do I complain about his overall form of argument. It is not a tack I would take, but it was near-inevitable that some legal scholar would eventually argue back from copyright to claim that real property, too, should fall prey to a multi-factor, fact-intensive “fair use” defense. I merely take this opportunity to remind fellow friends of liberty that they can expect more of the same—and more erosion of the property service mark—if they fail to recognize copyrights and patents as no more than intellectual privileges.

[Crossposted at Agoraphilia, Technology Liberation Front, and Intellectual Privilege.]


Stephan Kinsella said...

Great post. At least the founders, as you have helped to demonstrate, themselves regarded patent and copyright as a special legal privilege, not as a natural right. So they kept the distinction straight. Modern IP advocates have not. In fact use of the word "property" is just a propaganda ploy, as observed by Fritz Machlup and Edith Penrose in two seminal studies:

"Those who started using the word property in connection with inventions had a very definite purpose in mind: they wanted to substitute a word with a respectable connotation, "property", for a word that had an unpleasant ring, "privilege".

[Fritz Machlup & Edith Penrose, “The Patent Controversy in the Nineteenth Century,” Journal of Economic History 10 (1950), p. 1, 16]

While some economists before 1873 were anxious to deny that patents conferred “monopolies”--and, indeed, had talked of "property in inventions" chiefly in order to avoid using the unpopular word “monopoly”--most of this squeamishness has disappeared. But most writers want to make it understood that these are not “odious” monopolies but rather “social monopolies”, “general welfare monopolies”, or "socially earned" monopolies. Most writers also point out with great emphasis that the monopoly grant is limited and conditional.

[Fritz Machlup, U.S. Senate Subcommittee On Patents, Trademarks & Copyrights, An Economic Review of the Patent System, 85th Cong., 2nd Session, 1958, Study No. 15]"

Glen Whitman said...

It seems to me that tangible property boundaries are already subject to the kind of incursions and cost-benefit-based determinations that Depooter (heh heh) advocates. The "necessity cases" establish that in exigent circumstances (read: very-high-benefit cases) the property rule against trespass becomes more like a tort rule: the trespasser must merely pay damages for whatever harm his trespass may have caused. And in the law of nuisance (which, granted, lies at the cusp of property and tort) bright-line rules like the coming-to-the-nuisance doctrine have largely been displaced by cost-benefit analysis based on multiple factors and a reasonable man test. But maybe Depooter (heh heh) is trying to generalize these exceptions into a new overall doctrine of property.

Peter McCluskey said...

Depoorter's reasoning doesn't seem like much of a threat to property - parts have been codified into useful rules (such as a right to camp anywhere as long as one does not disturb the owner) in other countries and in early U.S. history without obvious damage to the property service mark.

See The Right to Roam.

The only new danger I see is that the fuzziness of intellectual privilege law will be applied to property. That doesn't seem as serious as the well established way in which intellectual privilege limits my ability to arrange bits in my computer the way I want them.

Michael E. Marotta said...

When owned by two or more persons, a stock certificate may declare them to have “rights of survivorship and not tenants in common,” or to be “joint tenants.” Both of those are phrases directly from real estate law. In some ways, jurisprudence has not yet caught up with the first industrial revolution.

We Americans all, left and right, venerate the Constitution, even as we acknowledge its problems. It was a great work in its time and place; but mythologies aside, the framers were not Olympians. Just as we amended the date of the Inauguration, and abolished slavery, and extended the franchise, so, too, do we need to revisit Art. I Sec. 8. "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

And a "limited time" might be all right, but now it is limited to lifetime of Mickey Mouse.