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Ben: Its Deja Vu all over again

By William Patry, Esq

I think we have pretty well flushed out our respective positions on copyright as property. I was noodling over what to say next when I came across this recent draft of a forthcoming article by Professor Justin Hughes of Yeshiva University, titled Notes on the Origin of Intellectual Property: Revised Conclusions and New Sources. Hughestraces the use of the phrase "intellectual property" back through several centuries, in English, French, Spanish, and Italian. What I was most struck by is that, viewed against the backdrop of history, our debates of the last several weeks are (and I'm a bit embarrassed to admit it) utterly unoriginal. It's truly uncanny. For example, you've argued that labeling copyright as "property" suggests a sort of fee simple in literary and artistic works, owned absolutely and in perpetuity. I, on the other hand, countered that calling copyright "property" doesn't mean that the rights in that property are absolute. As Hughes points out, people were having precisely this debate over 150 years ago (and earlier):

In this long property-or-not debate, a large group has accepted copyright as a form of property but separated that status from any implications concerning natural rights, perpetual protection, or necessary 'contours' to the property right. Those in this school of thought accept copyright as "property" while emphasizing [a] its special qualities and [b] that ?property? must sometimes give way to greater social interests. In 1847, drawing on the analogy of copyright to real property, an editorial in the Saturday Evening Post got the argument correctly:

Now, granting that an author has as much and the same right to his book, as the farmer has to the products of his orchard or his field, it does not follow from this, that his right is absolute and without limitation. As the rights of property in the latter, may justly upon occasion be made to yield to the strong demands of bodily hunger, or national necessity; so may the right of an author in his works, be made to yield before the mental hunger of the masses of society.

This echoed a widespread recognition in 19th century America that although copyright was property, it was a special form of property. An 1830 U.S. House of Representatives report states that ?[t]hough the nature of literary property is peculiar, it is not the less real and valuable?; a 1838 U.S. Senate report ? expressly saying it was getting into the natural rights issues -- described copyright as ?property of a peculiar character, not absolute but special, subject to conditions and limitations.?

Id. at 35-36 (footnotes omitted). It is always a bit comforting to be described as a member of a "large group," rather than a lone nut...

I'm not sure whether Hughes agrees with me on the normative question whether copyright is indeed "property" (though he certainly agrees that it has long been described as such, by figures ranging from Jack Valenti to Professor Lessig, who said in "Free Culture, "[A]lthough copyright is a property right of a very special sort, it is a property right.?). But I think at a high level, Hughes' work supports my view. One theme I take from your posts, often left implicit, is that there was once a Golden Age of Copyright, when things were properly balanced, and use of terms like "property" and "piracy" didn't distort the discourse in favor of copyright owners. But, so the story goes, recently, rapacious and overreaching copyright owners have twisted the debate in their favor through sneaky use of language, to achieve bad results. It's a nice story, but I simply don't think history bears that out. Reading Hughes' recent draft, as well as his earlier work on the etymology and history of copyright, it seems clear to me that there never was such a "Golden Age"; people at various points on the copyright spectrum have been arguing over language, and scope, and term length, for centuries. And while I agree with you that the level of vitriol is way too high these days (and not just about copyright) I'm sure that copyright partisans have always thought that those who disagreed with them were seriously misguided.

I'm not sure whether this is cause for optimism or pessimism, but I suspect that two copyright lawyers will be having a very similar debate in 2109, in some as-yet-uninvented medium that, like this one, is used both to enlighten and to infringe.

Full post as published by Moral Panics and the Copyright Wars on August 26, 2009 (boomark / email).