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The Why of Property-Talk in the Copyright Wars

By William Patry, Esq

There have been a number of efforts to trace the origins of the terms ?property? in connection with copyright, as well as ?intellectual property.? These efforts provide a ready source of law review articles for those in the business of academia, and some of the articles are of some interest. But as with most historical inquiries, the purpose is less to simply unearth the past and more to influence the present and the future. To me, the relevant question is why is property-talk used in the Copyright Wars? The question is hardly new and neither is the answer. Augustine Birrell, a wonderful Victorian man of letters, member of Parliament, gave a series of lectures in 1898 on copyright. Seven of these lectures were later selected for publication. (Some day I will do real research and get the other 6 lectures from his papers). His book, which I heartily recommend, is available here. On the question of why copyright owners insist on describing their government created and granted right as a property right, Mr. Birrell wrote:

The reason[] th[is] question[] was asked . . . was this?Certain rights over things amounting in the aggregate to a more or less complete exclusion of others than the owner from participating, save by consent, in their enjoyment had in the Western World become recognised as property. . . . The origin of property, of exclusive ownership, is one of the subjects about which our predecessors in title loved to discourse at large after a fashion more ingenious than historical.

Occupancy and Labour are the mythical parents of Property, but we shall be less wrong in assuming that the pedigree was invented to account for the fact of possession than in attributing the fact of possession to the virtues of the pedigree.

But whatever its origin, the Western World has throughout its long history shown an ever increasing disposition to recognise the right of individuals to the exclusive possession of certain things, and these rights it has clustered together, recognised, venerated, worshipped, under the word property.

To be allowed to enter this sacrosanct circle is a great thing. None but the oldest families need apply. . . . Once inside this circle your rights were supposed in some romantic way to be outside the chill region of positive law?they were based upon natural rights, existing previously to the social contract, and without which Society was deemed impossible.

Neither were these romantic conceptions mere jeux d?esprit. Consequences flowed from them. If your right to turn your neighbor off your premises, to keep your things to yourself?was property, and therefore ex hypothesi founded on natural justice, he who sought to
interfere with your complete dominion was a thief or a trespasser.

This one passage (discussed on pages 106 and 113 of my book) is worth the price ($20) of buying Birrell?s public domain lectures. Birrell wittily points out the fallacy of the ?virtue of the pedigree,? in which we are to assume that copyright owners have the rights they have due to being, simply, copyright owners. One need not inquire further: to be a copyright owner is to have been vested with an ancient pedigree; one is a property owner and that by itself is all the justification that is needed.

But there are real consequences too: to mess with property owners is to be a thief or a trespasser, terms we are well familiar with 111 years after Birrell noted the connection between the pedigree of property-talk and its consequences. The power of the property as ownership metaphor is that regulation of property is regarded as unprincipled, as government denying personal liberties, as taking away what rightly belongs to you and reallocating it to those who do not own the property, and who therefore do not deserve to share in its enjoyment. It is reaping what you haven?t sown, thievery, and trespass. Use of the property ownership metaphor is meant to persuade us that owners of the property are supposed to have no obligations to others, precisely because to be an owner of something means you have an obligation only to yourself.

The purpose of advocating something as a property right is to take it outside of the need for any empirical, social justification. As a property right we do not ask about incentives, and we do not ask whether the property interest benefits the public. Property simply is and need not be justified. Those who own property rights are entitled to hunt down unauthorized users as free-riders, as criminals, as a threat to polite society just as surely as who break into our homes or steal our cars. Once something is deemed property, it is irrelevant that an unauthorized use does not negatively impact the copyright owner, or even that the unauthorized use may be of great societal benefit. It is enough that property is involved and that it has been ?taken.?

We know though that in common law countries like the U.S., federal copyright is purely a governmentally created privilege: Congress need not provide copyright if it chooses not to; copyright is not a natural right even though the belief that it is beats in the heart of every copyright industry lawyer and executive. Copyright is a set of social relations (see chapter 5 and 6 of the book), created to promote the progress of science. As a set of social relations, no side has a leg up; instead, we mediate disputes within the system of social relations. That?s why I dislike the term ?limitations and exceptions? the term assumes that the natural state of affairs is unfettered rights, which is false. Regarding copyright as a set of social relations avoids the demonization we see in the Copyright Wars: it is not us versus them, but all of us.

Full post as published by Moral Panics and the Copyright Wars on August 18, 2009 (boomark / email).