Intellectual Property Law

Book Review: Property Outlaws

By fred

I've just recently finished reading Property Outlaws: How Squatters, Pirates and Protesters Improve the Law of Ownership, by Eduardo Moisés Peñalver and Sonia Katyal. Written by two legal scholars, one an expert in real property law, the other in intellectual property law, the book is a thoughtful rebuttal to the notion that property is absolute and trespassers are always "thieves."

The book starts with a hypothetical question:

Imagine that scientists invented a machine capable of costlessly detecting every crime, no matter how trivial, and identifying its perpetrator.... Let us assume that our hypothetical law-enforcement machine is only capable of detecting violations of property rights. The question we hope to address at length in this book is whether it would be wise for a government to purchase it and turn it on.

The authors then go on to remind us of the many ways that property disobedience can actually be healthy for the development of property law, reviewing historical examples. It's in the telling of these historical examples that the book really comes to life.

For example, the book describes the squatter's movement in the American West during the 19th century (Chapter 3), the civil rights "sit-ins" at segregated lunch counters (Chapter 4), the resistance to patents on HIV/AIDS treatments in South Africa in the late 1990s (Chapter 6), and the online copyright disobedience that sprang up when Diebold Election Systems tried to suppress leaked internal documents (Chapter 7).

The authors argue that a "leaky" property system is a healthy property system in the long run, both for real property and intellectual property. Here's the basic pitch, boiled down and expressed in the language of the legal academy:

When property disobedience overcomes a market failure and transfers property entitlements to those who value it more highly, it generates redistributive value. And when property disobedience produces information that is valuable to economic and political actors, it generates informational value. Even some self-interested acquisitive free riding can serve as a valuable tool for producing both of these sorts of value.

Next on my reading list is Adrian Johns' Piracy: The Intellectual Property Wars from Gutenberg to Gates, a magnum opus history of the concept of intellectual property piracy.

Full post as published by Electronic Freedom Foundation - Deep Links on March 22, 2010 (boomark / email).