Over at Ars, I have a new piece up that draws a (somewhat provocative, perhaps) parallel between today’s copyright debates and the property rights debates of the 18th and 19th centuries:
The American property system is based on the British common law system, but colonists quickly discovered that British property law was inadequate to the realities of the New World. In England, land was scarce and titles were well established. The American colonies, in contrast, had an abundance of land but poorly-defined boundaries and inadequate record-keeping. As a result, squatting became extremely common. Landless Americans would move to the frontier, clear some land, and begin building on it without first securing a property title.
This was illegal, and governments worked hard to prevent it. The resulting conflicts made today’s battles over file sharing look tame. In 1786, when Massachusetts tried to eject squatters in Maine (a Massachusetts territory at the time) the result was what one historian describes as “something like open warfare.” Squatters refused to pay for their land or vacate it, and the government tried to forcibly evict them. One sheriff was killed trying to evict a squatter, and juries refused to convict the accused murderer.
Copyright maximalists love to draw parallels between property rights and copyrights. But if we take that analogy seriously, I think it actually leads in some places that they aren’t going to like. Our property rights system was not created by Congressional (or state legislative) fiat. Property rights in land is an organic, bottom up exercize. The job of government isn’t to dictate what the property system should look like, but to formalize and reinforce the property arrangements people naturally agree to among themselves.
The fact that our current copyright system is widely ignored and evaded is a sign, I think, that Congress has done a poor job of aligning the copyright system with ordinary individuals’ sense of right and wrong. Just as squatters 200 years ago didn’t think it was right that they be booted off land they cleared and brought under cultivation in favor of an absentee landowner who had written a check to a distant federal government, so a lot of people feel it’s unfair to fine a woman hundreds of thousands of dollars to share a couple of CDs’ worth of music. You might believe (as do I) that file sharing is unethical, just as many people believed that squatting was unethical. But at some point, Congress has no choice but to recognize the realities on the ground, just as it did with real property in the 19th century.
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