: Code 2.0

The Limits on the Protection of Property

The Limits on the Protection of Property

The realists in American legal history (circa 18901930) were scholars who (in part) emphasized the role of the state in what was called private law.[20] At the time they wrote, it was the private in private law that got all the emphasis. Forgotten was the law, as if property and contract existed independent of the state.

The realists aim was to undermine this view. Contract and property law, they argued, gave private parties power[21]. If you breach a contract with me, I can have the court order the sheriff to force you to pay; the contract gives me access to the state power of the sheriff. If your contract with your employer says that it may dismiss you for being late, then the police can be called in to eject you if you refuse to leave. If your lease forbids you to have cats, then the landlord can use the power of the courts to evict you if you do not get rid of the cats. These are all instances where contract and property, however grounded in private action, give a private person an entitlement to the state.

No doubt this power is justified in many cases; to call it law is not to call it unjust. The greatest prosperity in history has been created by a system in which private parties can order their lives freely through contract and property. But whether justified in the main or not, the realists argued that the contours of this law should be architected to benefit society[22].

This is not communism. It is not an attack on private property, and it is not to say that the state creates wealth (put your Ayn Rand away). These are claims about the relationship between private law and public law, and they should be uncontroversial.

Private law creates private rights to the extent that these private rights serve some collective good. If a private right is harmful to a collective good, then the state has no reason to create it. The states interests are general, not particular. It has a reason to create rights when those rights serve a common, rather than particular, end.

The institution of private property is an application of this point. The state has an interest in defining rights to private property because private property helps produce a general, and powerful, prosperity. It is a system for ordering economic relations that greatly benefits all members of society. No other system that we have yet devised better orders economic relations. No other system, some believe, could[23].

But even with ordinary property your car, or your house property rights are never absolute. There is no property that does not have to yield at some point to the interests of the state. Your land may be taken to build a highway, your car seized to carry an accident victim to the hospital, your driveway crossed by the postman, your house inspected by health inspectors. In countless ways, the system of property we call private property is a system that balances exclusive control by the individual against certain common state ends. When the latter conflict with the former, it is the former that yields.

This balance, the realists argued, is a feature of all property. But it is an especially important feature of intellectual property. The balance of rights with intellectual property differs from the balance with ordinary real or personal property. Information, as Boyle puts it, is different.[24] And a very obvious feature of intellectual property shows why.

When property law gives me the exclusive right to use my house, theres a very good reason for it. If you used my house while I did, I would have less to use. When the law gives me an exclusive right to my apple, that too makes sense. If you eat my apple, then I cannot. Your use of my property ordinarily interferes with my use of my property. Your consumption reduces mine.

The law has a good reason, then, to give me an exclusive right over my personal and real property. If it did not, I would have little reason to work to produce it. Or if I did work to produce it, I would then spend a great deal of my time trying to keep you away. It is better for everyone, the argument goes, if I have an exclusive right to my (rightly acquired) property, because then I have an incentive to produce it and not waste all my time trying to defend it[25].

Things are different with intellectual property. If you take my idea, I still have it. If I tell you an idea, you have not deprived me of it[26]. An unavoidable feature of intellectual property is that its consumption, as the economists like to put it, is nonrivalrous. Your consumption does not lessen mine. If I write a song, you can sing it without making it impossible for me to sing it. If I write a book, you can read a copy of it (please do) without disabling me from reading another copy of it. Ideas, at their core, can be shared with no reduction in the amount the owner can consume. This difference is fundamental, and it has been understood since the founding.

Jefferson put it better than I:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possess the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lites his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property[27].

Technically, Jefferson presents two concepts: One is the possibility of excluding others from using or getting access to an idea, which he defines as action of the thinking power . . . which an individual may exclusively possess as long as he keeps it to himself. This is the question whether ideas are excludable; Jefferson affirms that an idea is excludable until the moment it is divulged.

The other concept is whether my use of a divulged idea lessens your use of the same idea. This is the question of whether divulged ideas are rivalrous.[28] Again, Jefferson suggests that, once they are divulged, ideas are not rivalrous. Jefferson believes that the act of divulging/sharing has made ideas both nonexcludable and nonrivalrous, and that there is little that man can do to change this fact[29].

In fact, shared ideas are both nonexcludable and nonrivalrous. I can exclude people from my secret ideas or writings I can keep them secret, or build fences to keep people out. How easily, or how effectively, I can do so is a technical question. It depends on the architecture of protection that a given context provides. But given the proper technology, there is no doubt that I can keep people out. What I cannot do is to exclude people from my shared ideas or writings simply because they are not my secrets anymore.

My shared ideas are nonrivalrous goods, too. No technology (that we know of) will erase an idea from your head as it passes into my head. My knowing what you know does not lessen your knowing the same thing. That fact is a given in the world, and it makes intellectual property different. Unlike apples, and unlike houses, once shared, ideas are something I can take from you without diminishing what you have.

It does not follow, however, that there is no need for property rights over expressions or inventions[30]. Just because you can have what I have without lessening what I have does not mean that the state has no reason to create rights over ideas, or over the expression of ideas.

If a novelist cannot stop you from copying (rather than buying) her book, then she may have very little incentive to produce more books. She may have as much as she had before you took the work she produced, but if you take it without paying, she has no monetary incentive to produce more.

Now, of course, the incentives an author faces are quite complex, and it is not possible to make simple generalizations[31]. But generalizations do not have to be perfect to make a point: Even if some authors write for free, it is still the case that the law needs some intellectual property rights. If the law did not protect authorship at all, there would be fewer authors. The law has a reason to protect the rights of authors, at least insofar as doing so gives them an incentive to produce. With ordinary property, the law must both create an incentive to produce and protect the right of possession; with intellectual property, the law need only create the incentive to produce.

This is the difference between these two very different kinds of property, and this difference fundamentally affects the nature of intellectual property law. While we protect real and personal property to protect the owner from harm and give the owner an incentive, we protect intellectual property to ensure that we create a sufficient incentive to produce it. Sufficient incentive, however, is something less than perfect control. And in turn we can say that the ideal protections of intellectual property law are something less than the ideal protections for ordinary or real property.

This difference between the nature of intellectual property and ordinary property was recognized by our Constitution, which in article I, section 8, clause 8, gives Congress the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Note the special structure of this clause. First, it sets forth the precise reason for the power to promote the progress of science and useful arts. It is for those reasons, and those reasons only, that Congress may grant an exclusive right. And second, note the special temporality of this right: for limited Times. The Constitution does not allow Congress to grant authors and inventors permanent exclusive rights to their writings and discoveries, only limited rights. (Though apparently those limited times can be extended[32].) It does not give Congress the power to give them a perpetual property in their writings and discoveries, only an exclusive right over them for a limited time.

The Constitutions protection for intellectual property then is fundamentally different from its protection of ordinary property. Ive said that all property is granted subject to the limit of the public good. But even so, if the government decided to nationalize all property after a fifteen-year term of ownership, the Constitution would require it to compensate the owners. By contrast, if Congress set the copyright term at fifteen years, there would be no claim that the government pay compensation after the fifteen years were up. Intellectual property rights are a monopoly that the state gives to producers of intellectual property in exchange for their production of it. After a limited time, the product of their work becomes the publics to use as it wants. This is Communism at the core of our Constitutions protection of intellectual property. This property is not property in the ordinary sense of that term.

And this is true for reasons better than tradition as well. Economists have long understood that granting property rights over information is dangerous (to say the least)[33]. This is not because of leftist leanings among economists; it is because economists are consequentialists, and their objective in granting any property right is simply to facilitate production. But there is no way to know, in principle, whether increasing or decreasing the rights granted under intellectual property law will lead to an increase in the production of intellectual property. The reasons are complex, but the point is not: Increasing intellectual propertys protection is not guaranteed to promote the progress of science and useful arts indeed, often doing so will stifle it.

The balance that intellectual property law traditionally strikes is between the protections granted the author and the public use or access granted everyone else. The aim is to give the author sufficient incentive to produce. Built into the law of intellectual property are limits on the power of the author to control use of the ideas she has created[34].

A classic example of these limits and of this public use dimension is the right of fair use. Fair use is the right to use copyrighted material, regardless of the wishes of the owner of that material. A copyright gives the owner certain rights; fair use is a limitation on those rights. It gives you the right to criticize this book, cut sections from it, and reproduce them in an article attacking me. In these ways and in others, you have the right to use this book independent of how I say it should be used.

Fair use does not necessarily work against the authors interest or more accurately, fair use does not necessarily work against the interests of authors as a class. When fair use protects the right of reviewers to criticize books without the permission of authors, then more critics criticize. And the more criticism there is, the better the information is about what books people should buy. The better the information is about what to buy, the more people will buy it. Authors as a whole benefit from the system of fair use, even if particular authors do not.

The law of copyright is filled with such rules. Another is the first sale doctrine. If you buy this book, you can sell it to someone else free of any constraint I might impose on you[35]. This doctrine differs from the tradition in, for example, Europe, where there are moral rights that give the creator power over subsequent use[36]. Ive already mentioned another example limited term. The creator cannot extend the term for which the law will provide protection (even if Congress can); that is fixed by the statute and runs out when the statute runs out.

Taken together, these rules give the creator significant but not perfect control over the use of what he produces. They give the public some access, but not complete access. They are balanced differently from the balance the law strikes for ordinary property by design. They are constitutionally structured to help build an intellectual and cultural commons.

The law strikes this balance. It is not a balance that would exist in nature. Without the law, and before cyberspace, authors would have very little protection; with the law, they have significant, but not perfect, protection. The law gives authors something they otherwise would not have in exchange for limits on their rights, secured to benefit the intellectual commons as a whole.


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