Government Regulation and Copyright, Plus the Word “Always”

Orin and others rightly questioned my use of the word “always” in connection with my statement that the use of the description “property” in the Copyright Wars is ”always” a political move. I overstated my assertion, and should have used a less absolute word. Thanks for the correction.

SK very much wants me to make ethical or moral arguments in support of my views, and questions why I haven’t. I don’t see why I should make such an argument. My approach is to view these issues as business issues, and that shouldn’t be surprising coming from someone like me who is in house at a corporation. I also think it appropriate in connection with copyright, which is an economic right. Moreover, the book is devoted to debunking efforts to disguise economic issues as moral issues. So, I respectfully decline the invitation.

Orin also asked, “isn’t property a form of government regulation, too? The government announces to market actors that it has picked one person or group that is allowed to control something, and that it will enforce efforts by that one person or group to exercise exclusive control against all other market actors.” I agree with this completely, and it is a great question how (in the sense of criteria) the government goes about picking the winners who will henceforth enjoy their new rights.

Since the Supreme Court’s 1834 opinion in Wheaton v. Peters, it has been established at the federal level that there are no common law copyright rights; all copyright is positive law. So how do you convince Congress to change the law in your favor? There are usually two elements to pulling off the trick: (1) you argue your claim is virtuous, and (2) you simultaneously argue that competing claims – those that want to keep the status quo — are not virtuous. Describing your opponent as a thief, trespasser, pirate, or a parasite evokes powerful negative reactions. But before the law says you own something, and much less as property, it cannot be said that those who act contrary to your wishes are thieves, trespassers, or scofflaws. If they were thieves or trespassers, you would sue them for thievery or trespass under existing law (I don’t think it is a crime to be a scofflaw though).

What sort of claims might be particularly virtuous? Those associated with property, given the veneration with which property is regarded, and that’s why I said use of the term property is (sometimes!) a political act. Here’s an example, again from Jack Valenti, the master of metaphors and copyright discourse. In 1982, during hearings on home taping by consumers using VCRs, Mr. Valenti testified:

“No matter the lengthy arguments made, no matter the charges and
the counter-charges, no matter the tumult and the shouting, reason-
the central theme which animates this entire debate: Creative property
owners must be accorded the same rights and protection resident in
all other property owners in the nation. That is the issue. That is the
question. And that is the rostrum on which this entire hearing and the
debates to follow must rest. “

Mr. Valenti’s purpose in seeking to equate “creative property” with “real property” was to shift the debate away from the actual legal principles governing the dispute (fair use and secondary liability) and away from the economics of the problem (did home taping harm legitimate markets that copyright owners should control) and toward a rhetorical ground from which he thought his clients could prevail. The idea that Congress could meaningfully decide whether to permit consumers to tape over-the-air broadcasts for time shifting purposes by reference to principles governing real estate was of course absurd.

Professor (later Judge) Benjamin Kaplan identified the same rhetorical fallacy in his 1967 Columbia Law School lectures, later published as “An Unhurried View of Copyright” :

“To say that copyright is ‘property,’ although a fundamentally unhistorical statement, would not be badly misdecriptive if one were prepared to acknowledge that there is property and property, with few if any legal consequences extending uniformly to all species and that in practice the lively questions ought to be whether certain consequences ought to attach to a given piece of property in given circumstances . . . but characterizations in grand terms . . . seems of little value: [W]e
may as well go directly to the policies actuating or justifying the particular determinations. “(Page 74).

In other words, skip the labels and figure out instead what conduct and
policies we seek to encourage or discourage. In the matter at hand for Mr. Valenti, it was home taping of free over-the-air broadcasts for time-shifting purposes, and Congress was greatly relieved when the Supreme Court two years later, by a 5-4 vote, decided that fair use and the staple article of commerce doctrine barred secondary liability for Sony’s manufacture and sale of the Betamax. In a blow to the “it’s our property and we can decide who can do what with it,” the Court held: “Even unauthorized uses of a copyrighted work are not necessarily infringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute.” 464 U.S. 417, 448 (1984).

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