Redefinition or Clarification?

James DeLong has a good post on the copyright issues raised by Google Print. He highlights past cases in which property rights have been changed to reflect changing technological and institutional realities:

The controversy highlights one of the most important dimensions of property rights, in both theory and practice, which is that property rights regimes are not cast in stone. They are established under a particular set of technological and institutional conditions, and as these change some rethinking and evolution is required and inevitable.

Such change is tricky business, because any concession that property rights are malleable turns into a handy excuse for massive rent-seeking. One road to riches is to persuade governments to redefine property rights so as to take what other people had and give it to you, pleading the need for adaptation to new circumstances.

I actually think there’s a fairly clear distinction to be drawn between changes to property rights on the one hand, and clarifications on the other hand. He talks about the case of airplanes. In theory, property law said that a property owner owned all the air above his land, but with the advent of commercial aviation, that doctrine quickly fell by the sayside. Here’s DeLong’s take:

So, obviously, there was a massive transfer of property rights in the heavenly sphere away from landowners to the nascent aviation industry. You can say that property rights were simply redefined so as to recognize the reality that you do not really own all the way to the sky, or you can say that pre-existing rights were indeed taken, a la eminent domain, and that compensation was due, but that the value of the right to the landowner was zero, so the compensation due was zero. But there is still a redefinition involved because, obviously, the right to extract ransom from airplanes, once they have been invented, is not zero.

I think there’s a third way to think about it: property rights were neither re-defined or transferred. Rather, an ambiguity in the existing rules was resolved. The common law property rights doctrines that existed at the time of the Wright Brothers flight had been developed over centuries by judges who had never seen, and probably couldn’t have imagined, commercial airflight. So while the official doctrine was that you owned the air above your land, it wasn’t clear what that meant. No one had ever been able to fly, so what exactly constitutes tresspass wasn’t well-defined. You could make a plausible argument that flying over someone’s land at 10,000 feet was so fleeting a presence on any particular landowner’s land (indeed, it might be difficult to determine exactly whose land a particular airplane passed over) that it didn’t merit being called tresspass.

There are lots of other examples like that. Is it trespass for me to transmit a radio signal through your land? What about emitting (non-toxic) particles from my factory? What about painting my house an ugly color, spilling ugly photons on your land?

What happened after the invention of the airplane wasn’t so much that property rights were transferred or re-defined. Rather, what happened is that a boundary that had previously been fuzzy was made clearer.

This doesn’t just happen in property law. The courts have repeatedly struggled with what constitutes an “unreasonable search” under the Fourth Amendment. Does wire-tapping count? What about infrared scanning? Any time technology gives us the ability to do something we couldn’t do before, it exposes ambiguities in the law that hadn’t previously been apparent. When the Supreme Court decides an issue like this, it isn’t re-defining a search so much as applying the concept to a subject where it hadn’t previously been considered.

The same is occurring now with Google Print. The “copies” of books stored on Google’s servers are not copies in any sense that the Founding Fathers would have recognized. Even in 1976, when the last major revision of copyright law occurred, Google Print would have seemed like science fiction to members of Congress. Unlike the copies traditionally restricted by copyright law, no human being will ever see the “copies” on Google’s servers. And, viewed in their raw form, they don’t look anything like a book. They’re a string of 1’s and 0’s encoded magnetically on a hard disk platter. I don’t think it’s crazy to argue that those aren’t copies at all under the meaning of copyright.

Whether that’s the position the court will take is obviously up for questioning. But the point is I don’t think you can say that one verdict would uphold the status quo, while the other would re-define property rights. There is no status quo, and so either answer the court might give is a plausible extrapolation of our current body of law. What we should be debating is more consistent with our copyright traditions, and which is more conducive to economic progress and technological innovation.

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