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Ben on the Why of Property

By William Patry, Esq

Your knowledge of the history of copyright far exceeds mine. But I think you build up "property" into a bit of a straw man, just so you can thwack it down. You mock the alleged pretense of the "property" metaphor:

You formulate attacks that allegedly "beat[] in the heart of every copyright industry lawyer and executive:

And you invent supposed arguments by copyright owners that I've simply never heard made:

Maybe there are indeed "copyright industry lawyer[s] and executive[s]" and executives out there who believe these things; I can't prove the negative. But I don't.

Nonetheless, I do believe in the "property" metaphor. Intellectual property -- a term that's been in use since the mid-19th Century -- is not the same as real or personal property (another common straw man of copyright critics). But it does share many of the same attributes: it can be bought, sold, and rented, and it gives the owner the right to exclude. Your post suggests that we can't consider copyright property, because then copyright owners will be imbued with absolute dominion over their works. But that simply doesn't follow. Ownership of real property is subject to myriad limitations: zoning laws, nuisance, environmental regulations, etc. So too with copyright. A copyright owner's exclusive rights are limited, and they are set forth in the statute. And the statute (not to mention the case law) provides numerous exceptions, limitations, and exclusions: fair use, first sale, educational and religious exemptions, copyright misuse, etc. Reasonable people can, and certainly do, disagree over the proper scope of copyright, and its exceptions. But I fail to see how labeling copyright as "property" resolves any of these debates in one direction over the other. When the dust settles from such debates, we might end up with a strong, broad property right, or a weak, narrow one -- but in either case, it's still a property right.

Nor does recognizing copyright as a form of property in any way diminish the conception of copyright as a system whose primary purpose is, in the words of what has become a constitutional cliché, to "promote the progress of science and useful arts." The primary (a word I'll return to in a moment) purpose of copyright is to provide incentives for the creation of literary and similar works. The means by which our society has chosen to provide such incentives is the recognition of property rights in such works. I simply don't see any contradiction between the "incentive" theory of copyright and the "property" theory; they are simply two sides of the same coin.

Which brings me back to "primary." I frequently hear critics of the current copyright laws insist that the only possible justification for copyright is the utilitarian, "incentive" one. They dismiss out of hand any possible role for natural or moral rights in the system. Again, I don't dispute that the primary purpose is the utilitarian one. But I do find it notable that the Supreme Court has several times stated that the "primary" purpose of copyright, as opposed to the "only" purpose, is to stoke the fires of creativity. See, e.g., Feist Pubs., Inc. v. Rural Tel. Serv., 499 U.S. 340, 349 ("The primary goal of copyright is not to reward authors, but to promote the Progress of Science and useful Arts."); Fox Film Corp. v. Doyal, 286 U.S. 123, 127 ("[T]he primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors."). I'm curious what you make of the Court's use of "primary" rather than "only." Does it suggest that the natural and moral rights view of copyright plays some role (albeit a secondary or tertiary one)? Or is "primary" just a hedge, a way for cautious justices to avoid saying anything truly definitive?

Full post as published by Moral Panics and the Copyright Wars on August 19, 2009 (boomark / email).