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What Property Isn’t

October 27th, 2002 · No Comments

I seem to be making disagreeing with fellow libertarian Sonia Arrison something of a full-time job. In a recent TechCentralStation piece, she takes to task libertarians in the “IP abolitionist” camp for showing undue deference to property. Well, I don’t know that I’m quite in the “abolitionist” camp (yet), but I’m probably a good deal closer to, say, Larry Lessig than to Arrison on the proper scope of IP. I hold this position, not because I lack a strong respect for property, but because patents and copyrights, however socially useful they may otherwise be, are not genuine property.

Arrison begins by rejecting the argument that IP is unlike tangible property, an argument which rests on the fact that copying someone’s work does not deprive the creator of its use, whereas if I take your car or move into your bedroom, you haven’t got it (or the unencumbered use of it) anymore. She writes:

“[W]hile the original creator might always have a copy of his work, he is robbed of the profit that he would have made by selling the goods he created with his labor.”

Yes, and I might make more profit writing if other people were forbidden to compete with me by writing on the same topics. The right to one’s labor has never implied a right to limit the actions of others in any way whatever that might increase my own ability to induce others to compensate me for that labor. I think Arrison has gotten the core of property precisely wrong. The right to exclude is ancillary; it is part of property to the extent that exclusion rights are necessary for direct enjoyment. A crossing of property boundaries which is inherently non-interfering — letting photons from your lightbulb fall on my lawn, for example — has never been held to be excludable, even though I might make a few bucks charging you for the right to turn on your lamp. In short, the core of property — which is in the first instance property in labor — is the right to enjoy the direct benefits of that labor. It is emphatically not the right to prevent anyone else from enjoying the positive externalities of that labor, or indeed, to socialize the costs of internalizing those benefits.

Libertarian thinkers such as Robert Nozick have frequently used the thought-experiment of a non-interaction baseline to help draw the boundaries of our rights. So, for example, in rejecting the redistributive impulses of John Rawls, Nozick uses the example of two societies on separate islands. If one is prosperous, and the other is not, he argues, it makes very little sense to say that the prosperous group has done the other an “injustice.” The second group is no worse off than they would have been in the absence of the first, and may indeed be made better off by the potential for exchange. By the same token, I am made no worse off if some third party hears a song I’ve written, and plays it for her own enjoyment. Arrison’s extension of the idea of “interference” to include interference with possible transactions makes a nonsense of the non-interaction baseline, because there will be any number of restrictions on third party rights which will increase my ability to benefit through interaction. That nebulous, expanded non-baseline makes State of Nature theory, in the parlance of the decision theorists, a game without a core.

Arrison moves on to discuss the constitutional basis of intellectual “property.” (That term, by the way, appears nowhere in the Constitution, which speaks only of “exclusive rights”). She says:

“[The instrumental justification for copyright] ignores the moral argument that a person’s labor should be rewarded with property, and often the “proof” for this statement is given in instrumental terms: “people won’t have any incentive to produce creative goods if they aren’t rewarded.” The founders focused on the instrumental aspect, but it doesn’t mean they didn’t agree with the moral.

Well, quite a few of them, Jefferson at the least, rather clearly didn’t. But in any event, the relevant question is not what secret feelings some number of the founders might have harbored, but what’s written in the Constitution. I’m sure the founders had a fascinating variety of opinions about what rights we do and don’t have, but those opinions are not the law of the land; the text of Article 1, Section 8 is. And there’s a very clear contrast between the kind of “right” described in that Section’s Copyright Clause — a legislative grant of power for a specific purpose — and those found in other Articles and Amendments, typically cast as preexisting rights of the people, which Congress may not infringe. It’s possible that, deep down, some of the founders thought that the right to profit from creative works was on a par with the right to worship or speech, but they certainly seem to have gone out of their way to distinguish the former from the latter. Arrison continues:

“The spirit of copyright and patent laws means to reward labor rather than simply promote the useful arts. For example, one can hold a patent without ever using it and register a literary work for copy protection without ever publishing it. This suggests that there is an underlying understanding that IP is rewarded because it should be, not simply to make sure that there is more of it around for the public good.”

This might be a compelling argument if it weren’t so totally at variance with the history of copyright law. If we look, for example, to Brenner v. Manson, we find that the Court has typically recognized that there is indeed a “utility requirement” in both the relevant copyright statutes and in the Clause itself. I’ll let the eloquent Justice Abe Fortas speak for himself on this one:

“[Patent] creates a monopoly of knowledge which should be granted only if clearly commanded by the statute. Until the process claim has been reduced to production of a product shown to be useful, the metes and bounds of that monopoly are not capable of precise delineation. It may engross a vast, unknown, and perhaps unknowable area. Such a patent may confer power to block off whole areas of scientific development, without compensating benefit to the public. The basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility.

Notice how far the Court’s interpretation here is from Arrison’s. They see the founders as having considered the granting of copyrights a “quid pro quo,” in contrast to the rights we have in tangible property, which are not contingent upon any explicit legislative action (indeed, which are protected from legislative interference to a certain extent by the Fifth Amendment) and which don’t rely on any such quid pro quo. Though it has recently taken to doing so through abuse of the eminent domain power in some cases, Congress and the states are not supposed to be able to hand over my stuff to another private entity if it seems like someone else could make a more publicly beneficial use of it. If the “spirit” of the Constitution really were such that IP and tangible property were to be treated the same, the Fifth Amendment and the Copyright Clause would stand in stark conflict to each other. The legislative power (not duty, but power) to grant exclusive rights implies a correlate discretion not to grant those rights. Yet surely the Fifth Amendment would make no sense if Congress could simply opt not to recognize or grant property titles. Moreover, that power is itself limited by a requirement that grants of exclusive rights in IP be for limited times. Constitutionally, the Congress may not take my physical property, except for public use, and then only with the payment of compensation. Constitutionally, the Congress must eventually take back my intellectual property, making it available for public and private uses alike. The notion, then, that the Constitution treats these two sorts of rights in anything approaching the same way is just bizarre.

It may well be desirable for the government to grant monopoly rights to creative works. Insofar as innovation is a public good, patent and copyright are admirably market-like ways of encouraging the provision of that good. But then let’s be honest, and talk, not about “property,” but about monopoly grants. Just as we diminish genuine rights when we manufacture a welfare “right” to everything that seems socially desirable, we diminish the concept of property when we attempt to extend it beyond its rightful sphere.

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