Copyright Erodes Property℠

by on July 14, 2011 · 10 comments

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.]

  • Jayel Aheram

    Stephan Kinsella has been arguing this point, especially in his book “Against Intellectual Property.” 


    Cyber-libertarians ought to realize that copyrights are in direct conflict with private property rights, which in turn affect other rights derived from it (free speech, first-sale rights, et cetera).

  • Mike Moceri

    Great article Tom. I would also add that there is no clear epistemological method of identifying exactly what IP law intends to protect. Does it protect written information? Yes. Does it protect digital recordings of written information? Yes. Does it protect the written information as encoded in the neurons of your brain? No. Why not? The entire IP system is arbitrarily set-up to protect entertainment monopolies. That’s why.

  • Jim Harper

    I think the concern that you’re writing about here is entirely valid, Tom, but I think it’s better attributed to malformation in intellectual property laws, not in the concept of intellectual property.

    Envision a world in which there is no copyright law, and an author who has written many poems but not shared them with anyone bequeaths them to an heir. How do you speak abstractly about what has happened? He did not bequeath his intellectual privilege because there isn’t one. He bequeathed his intellectual property. If the heir likewise holds the poems out of view of others, they are her intellectual property. If she shares them with the world on purpose or by failing to restrict access, they’re everyone’s intellectual property.

    I’ve asked friends over the years: If you don’t want to use the phrase “intellectual property,” what is the word or phrase you would use to describe these cognitive and volitional products that we create, trade, buy, sell, keep to ourselves, and (most of the time) abandon to the world? I think “intellectual property” describes them pretty well.

  • Paul Lockett

    Copyrights and patents are state granted privileges, but then, so are land titles, which should also be viewed separately from genuine tangible property.

  • Jim Harper

    Reading more carefully and slowly (oops!), I note that you don’t actually say “don’t use the term ‘intellectual property,” so maybe I’m not responding to what you do say. Maybe you agree that there’s a terminological problem when people talk about the law around a thing as though it were the thing.

    Would you agree that people could call a poem “an item of intellectual property,” while referring to one’s right to charge others a fee for copying it an “intellectual privilege”?

  • Timothy Lee

    Envision a world in which there is no copyright law, and an author who has written many poems but not shared them with anyone bequeaths them to an heir. How do you speak abstractly about what has happened? He did not bequeath his intellectual privilege because there isn’t one.
    “Poem” seems like a perfectly reasonable term in this context, but if you want abstract how about “creative work?” Or “writings?”

  • Timothy Lee

    Great post.

  • Jim Harper

    Alright, let’s say he bequeaths his house in the city, his house in the country, and some undeveloped land in the next state over; he bequeaths his car, his couch, and a bottle of wine; and he bequeaths the poems, (previously unshared) plans for an invention, and a national restaurant chain that has a trademarked name.

    How do you complete this sentence in a readable way: “He bequeathed her his real property, some tangible property, and ____________________.”

    I suspect you’ll do some pretzels to avoid using the adjective “intellectual” to modify “property,” though intangibles like these are created from common intellectual property (circular, yes), hoarded, bought, sold, and given away just like other items we recognize as property.

  • Tom W. Bell

    Jim Harper:  I don’t have any problem saying “other assets” in the blank you offer.  I do not think it would be at all helpful to say “intellectual property” in cases where copyright does not exist; indeed, it would confuse matters even more than using the term when copyright does exist.

    Paul Lockett: To be sure, a land title is not itself a natural right.  That the state provides certain administrative services pertaining to real property should not, however, derogate from the status of real and chattel property.

    Mike & Tim:  Thanks for your kind words, and also for your cogent comments.

  • Ryan Radia

    how about “expressive works?”

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