In this, my last post – thanks so much Eugene and to those who took the time to comment – I will address remarks by Brian, the devil’s advocate. He very politely stated:
“While Orin let you off the hook, I think you, and maybe he given his acquiescence, miss the full import of his second question. If the maintenance of property is dependent upon the positive law, it becomes a utilitarian or consequentialist chit to be done with as government wishes.”
…
“At root you’re saying you are not sure you believe in real property. Given the fact that government has exceedingly the same view, and I think this contrary to, constitutional guarantees, natural and positive law, the normative understanding of the founders, as well as to utilitarian or consequentialist outcome oriented philosophy, I must respectfully dissent… .”
I would like to hear Brian’s views on is what he thinks copyright is if it is not positive law and what foundational authority there is for copyright not being a creature of positive law. It would really interesting to see how Brian thinks that would work out in practice, meaning someone goes into court and claims that their natural copyright rights have been infringed. What should a judge say to such a claim?
On the utilitarian or consequentialist point, I readily confess to holding that view. Copyright can be granted or not, or taken away as the government wishes, based on its utilitarian or consequentialist judgment. After all, the Constitutional grant in Article I, section 8, clause 8 is discretionary: Congress may grant copyright rights but it need not; hence my point about natural rights: Assume Congress decides to repeal the copyright act for all future works (and preempts state law too). A writer creates a work after the abolition of protection: under what authority would courts think they could hear a claim of infringement? None, in my opinion.
I don’t understand what Brian is getting at when he questions whether I believe in real property, because I don’t know what it means to “believe” in this context. I own a house and the land around it. I am very happy I do. I pay taxes on it, and when I pay my mortgage off in 12 years, I will really “own” it. I believe it is mine now subject to the mortgage and taxes. I love the house and am secure that I have the usual legal rights. If this is what it means to believe in real property, I happily do.
I am also happy to regard copyright as a government program. Because
copyright law is positive law, created solely by the government, the government must shape its contours as it sees fit to achieve copyright’s objectives; doing so is not adventitious, but is instead an obligation of governments. I don’t think this makes the government socialist or demeans copyright. It does mean that efforts by Congress to craft laws that fit into its utilitarian or consequentialist views shouldn’t be regarded as government intervention in a free market. There is a humorous example of this argument in the reaction of record companies to proposals by members of Congress to amend the DMCA in ways the copyright owners didn’t like. This effort met with the following response in a letter sent by the lables, made without a hint of irony:
“[H]ow companies satisfy consumer expectations is a business decision that should be driven by the dynamics of the marketplace, and
should not be regulated. . . . The role of government, if needed at all,
should be limited to enforcing compliance with voluntarily developed
functional specifications reflecting consensus among affected interests.
If the government pursues the imposition of technical mandates, . . .
record companies may act to ensure such rules neither prejudice not
ignore their interests.”
Not only is all copyright government intervention, but the DMCA was invention by the government in the marketplace on a fairly massive scale, at the request among others of the record labels that made the above statement. The Congressional recommendation to amend the DMCA was thus a proposed amendment to earlier government intervention.
Thanks again for having me as a guest.
Eph says:
Mr. Patry,
I believe Brian is getting at something that you haven’t yet answered clearly:
You’ve explained how you regard Copyright (i.e. copyright laws/protections) as a “positive law, created solely by the government” which the government is free to adapt and modify in order to achieve its objectives.
Brian’s question (I’ve been wondering as well) is this: What about traditional property rights – are they also restricted to the legal rights government chooses to bestow? You said you own your home and that you have the “usual legal rights” in it. How do those two relate? Do you own the home only insomuch as you have legal rights provided by government in it? Do you believe that people have rights (of exclusive use, disposition, control, etc) to their property independent of what government chooses to enforce?
Thank you for taking the time to post here – your contributions were very interesting.
October 9, 2009, 12:14 amEph
Orin Kerr says:
Bill,
I suspect Brian is referring to natural law property rights: The idea being that natural law creates property law, regardless of what the state happens to provide. What do these natural law property rights look like? Well, no two believers in natural law seem to actually agree about that, so that’s kind of hard to answer. But I suspect that’s what Brian had in mind.
October 9, 2009, 12:49 amAthas says:
Mr. Patry,
I think Professor Kerr is likely correct, and the question was meant to ask whether, as human beings, do we have an inherent right to “own” property outside the structure of modern government. And if we do, does that extend to creations of the mind (intellectual property).
If I remember my political theory correctly, at least some natural philosophers were of the opinion that in the formation of civilization — modern government — we must give up some of our rights, such as some rights in ownership of tangible property. So rather than stealing back property that was stolen from me and then exacting a punishment on the thief, I give up those “rights” to government. It’s better for me because I don’t need to investigate who stole my property or assume the risks of trying to steal it back, and it’s better for society because impartial triers of fact should be able to more objectively dole out punishments.
I tend to agree with you, intellectual property rights are positivist; put differently, there are no natural right to own creations of the mind. Those rights exist only because our society says they do.
The critical question, I think is why. I admit I may have been overly influenced by Lockean philosophy, but for me comes down to the right to exclude others.
One justification for natural law property rights (from Lock I believe) is that I should benefit from the fruits of my labor. If I create a tool, I deserve to benefit from that tool because it was my effort that created it. If someone else takes that tool from me, I can no longer benefit from it, and that seems unfair.
For creations of the mind, however, there is no exclusivity. If I discover a process that allows me to make stronger tools, I do not lose the ability to make stronger tools when someone else copies my process. Because I do not lose the benefit of my labor, then I should not have the right to exclude others from that knowledge.
There are obvious policy reasons to extend trademark/copyright/patent protections, but to call the ability to enforce those protections “property” and to think of those rights as being the same thing as ownership of tangible property seems dubious to me.
October 9, 2009, 2:07 amjpe says:
Brian, as an NL proponent (or something like it) believes that property rights are independent of and logically prior to the state’s guarantee of those rights. One of your arguments re: copyright is that it can be distinguished from real property by dint of the fact that it’s a creature of positive law and subject to government control re: its scope and so on. My read of Brian’s rejoinder is that, based on your view of the law, real property no less than copyright is a creature of positive law, subject to government control re: its scope, and so on.
October 9, 2009, 8:59 amAmerican Psikhushka says:
Mr. Patry-
I would like to hear Brian’s views on is what he thinks copyright is if it is not positive law and what foundational authority there is for copyright not being a creature of positive law. It would really interesting to see how Brian thinks that would work out in practice, meaning someone goes into court and claims that their natural copyright rights have been infringed. What should a judge say to such a claim?….
….I don’t understand what Brian is getting at when he questions whether I believe in real property, because I don’t know what it means to “believe” in this context. I own a house and the land around it. I am very happy I do. I pay taxes on it, and when I pay my mortgage off in 12 years, I will really “own” it. I believe it is mine now subject to the mortgage and taxes. I love the house and am secure that I have the usual legal rights. If this is what it means to believe in real property, I happily do.
The thing is that claims on both kinds of property are enforced by the courts based on abstractions. The legal construct that you “own” real property is enforced using your deed, title, etc. The legal construct that you “own” the rights to intellectual property is enforced using copyright and other documentation/evidence.
The thing is there are moral and some would say natural rights claims to both. You employed labor (likely the fruits of your labor, money) to purchase your house, you deserve to profit from it if possible. You employed labor to create your intellectual property, you deserve to profit from it if possible. (Provided the IP was sufficiently novel, distinguishable, etc.)
As to your other statements they seem to be at odds:
It does mean that efforts by Congress to craft laws that fit into its utilitarian or consequentialist views shouldn’t be regarded as government intervention in a free market.
and later…
Not only is all copyright government intervention, but the DMCA was invention by the government in the marketplace on a fairly massive scale, at the request among others of the record labels that made the above statement. The Congressional recommendation to amend the DMCA was thus a proposed amendment to earlier government intervention.
I think there might be a typo in there somewhere and your feeling is that copyright is a government intervention. I disagree somewhat with this characterization. In my mind copyright is more of a set of rules to govern disputes between private parties like other tort law. To an extent it can be an intervention, but it is set up mainly to recognize rights that have a moral and natural law foundation.
October 9, 2009, 6:05 pmohwilleke says:
In my part of the country, Colorado, real estate ownership is the quintessential government program.
Almost all of the state’s private property was received under patent from the United States government under a patent grant authorized by Congress to railroads, a homestead act, or a mining claim (a good share of the rest of the private real estate was secured from the Spanish government when it was sovereign in Southern Colorado). Indeed, people are still perfecting new mining claims which include not just mineral rights but also surface rights in hot mountain resort real estate markets right now.
The U.S. government gave away the land to encourage agricultural development, intercontinental rail travel and metal production.
Honestly, real estate looks even more like a government program than copyright. Homesteading was actively encouraged and advertised by the U.S. government as a economic stimulus venture. When is the last time you saw a PSA urging you to invent something or write a book?
Also, there has never been a right to gain title from the sovereign over land by adverse possession; securing land from the government without consideration has always taken affirmative legislative action (even the so called “unitary executive” did not claim this power). A big part of the Robin Hood legend, for example, which dates to just around the time of Normal Conquest, is about Robin, his merry men and those he helped being prosecuted for trespassing and poaching (a form of theft) on government land. In contrast, since the 1976 copyright act, copyrights arise without state action.
Land as a government program is not limited to the West, however. When I was growing up, our house in Ohio was built on land obtained on a 99 year lease from the government. The lands were originally set aside under the Northwest Ordinance (which predates the current constitution) to fund education. We were able to buy out the lease with express consent of the government (as was everyone else in the area), but we didn’t have squatters rights.
There is also nothing inherently capitalist about large scale ownership of private real estate. For example, there is almost no privately owned residential real estate in Singapore. Everyone leases it from the government. The rules of the game are the same, but hte facts are different. Many U.S. states are majority government owned.
October 9, 2009, 8:38 pmBill Patry says:
Thanks to all for the clarification. I happily confess to not being up to answering the broader questions, questions that probe the existence or not of rights outside of those created by the government, including whether real property is a natural or not solely positive law right. My guess is that rights respecting real property rights are solely positive law, but I am more sure of myself if I restrict myself to copyright, where at least with respect to the U.S., copyright is solely a creature of positive law at the federal level. That’s what the Supreme Court held in Wheaton v. Peters, and I think the Court was correct. I think the natural state of affairs is free competition. I cannot do better than to quote my deeply missed late friend Sir High Laddie, from his 2007 University College London lecture:
Competition is the whip which drives traders to offer more or less to
their customers. . . . If they don’t they will lose market share and profits
to competitors who do. In our system, competition is king. It is the
enemy of complacency.
So where do IP rights fit into this? After all, they appear to undermine
the very basis of our economic success. They hinder by creating areas
of exclusivity. What are they supposed to deliver which justifies this
subversion of the free market?
The function of IP rights is to provide an economic incentive to goods
October 9, 2009, 10:33 pmand services, which, absent them would not exist or would take many
more years to reach the market. They make up for a defect in the com-
petitive system by supplying an incentive where otherwise there would
be none.
. . .
IP rights are the carrot to competition’s stick. Their purpose is not to
displace competition but to modify it, to create sufficient economic
incentive to justify the labour and investment in new products or art,
but, after that incentive has worked its magic, to allow the normal
forces of competition to have their way. . . . [O]nce the incentive has
had its effect there is no further justification for its retention. It has
done its work and competition should be allowed to return.
. . .
We should be trying to hone the system so that the greatest rewards
and encouragement go to those industries which need and deserve
them the most. Where IP rights perform their function of advancing
the science or arts, they should be encouraged to do so. Where or to
the extent that they do not, they have no justification and the normal
discipline of competition should apply. The gluttony which has
resulted in the growth of completely unnecessary or excessively long
IP rights undermines the system itself. As Shakespeare wrote in
Richard II,—“With eager feeding food doth choke the feeder.”
American Psikhushka says:
Mr. Patry-
Wheaton, which from my reading requires actual copyright documentation to be filed, is an interesting case. Thanks for posting it.(Although it seems to have involved a party that had legitimate access to the material in question. I wonder how cases involving illegal eavesdropping, industrial espionage-type offenses, 4th Amendment violations, other privacy violations, etc. might turn out. Unfortunately I don’t have access to paid research databases.)
The excerpts from Mr. Laddie are interesting. But I suspect he approached the subject from a collectivist or interventionist outlook, therefore he might tend to arrive at a collectivist or interventionist result.
For example in this passage:
We should be trying to hone the system so that the greatest rewards and encouragement go to those industries which need and deserve them the most.
Who decides which industries should receive the greatest rewards? It doesn’t appear to be the markets. In this instance it seems to be the collectivist or interventionist “we”.
The gluttony which has resulted in the growth of completely unnecessary or excessively long IP rights undermines the system itself.
I don’t have the speech in front of me, but why should we assume that the current system is “gluttonous”? Simply because some creators are very successful? Shouldn’t the creation of great value result in great rewards? Again the example of the pulp romance novel versus the J. K. Rowlings books come to mind. From what I can tell things are very proportional – those who produce valuable intellectual property sell an incredible amount of it, therefore they make great profits. The profits are going where they should, to those creating the most value.
The arguments I mentioned earlier would still seem to be worth considering. First the moral and possibly natural law argument that one should be able to profit from their labor and ideas in creating intellectual property. The other is that doing away or reducing intellectual property rights aren’t necessarily going to result in the individual, the small independent producer, or even the consumer “winning”. For example without intellectual property the wealthy record company doesn’t even have to make a record deal, it just takes what it wants and employs its economies of scale.
October 10, 2009, 1:36 amMark N. says:
I’m not sure a “deserve to profit” sort of right is a very solid sort of natural right. In particular, it seems grossly insufficient to override other, much more solid, natural rights in the way that copyright law attempts to do. For example, I ought (I claim) to have a quite solid natural right to use materials I physically own, within my own house, on property I own, in any way I like. But copyright says the government may control how I use a typewriter and paper in my own house.
October 10, 2009, 1:56 amAmerican Psikhushka says:
Mark N.-
I’m not sure a “deserve to profit” sort of right is a very solid sort of natural right.
It works that way for physical labor.(By agreement, etc.) If you create intellectual property you certainly have a much greater moral and/or natural rights claim on profits than someone that did not create it does.
In particular, it seems grossly insufficient to override other, much more solid, natural rights in the way that copyright law attempts to do. For example, I ought (I claim) to have a quite solid natural right to use materials I physically own, within my own house, on property I own, in any way I like. But copyright says the government may control how I use a typewriter and paper in my own house.
In my opinion that’s a stretch. You can type pretty much anything you want, including intellectual property of your own. You could also likely even re-type someone else’s novel to read yourself. The problem only comes when you try to profit from someone else’s intellectual property, which they have a far superior moral and/or natural rights claim to.
October 10, 2009, 2:21 amdevil's advocate says:
I am most flattered to have been the catalyst for this thoughtful discussion. I recognize that I have been passionately scattershot so a full rendering of my philosophy has not been achieved.
Eph and jpe have captured my key objection to Bill’s frame of reference. I can’t distinguish in his objections to the use of “property” as “political” a real difference from collectivist objections to the use of the term with regard to tangible “property”. I did not intend to pile on with loaded language and don’t mean that to be dripping form of red-baiting. Indeed I much considered the usage, since Bill’s objection is to political language, perhaps moreso even than the actual extensive contour of the intellectual property institution in positive law. But collectivist is certainly an appropriate term with regards to those who seek common ownership of land and decry the incidents of private property as yet another oppressive western concept. That is quite different than saying I find Bill’s motives coordinate with those who thing the government should own the means of production — perpetuate a commons under its feudal, if purportedly democratic, arrangements.
But the existential character of real property (arguably an even more politically loaded term to begin with) is not manifest in the positive law that secures it. But the positive law of property rests upon antecedent inspirations. Bill seems to imply, without extensive discussion — at least in the present forum, that the the institution of real property (and perhaps tangible personal property) is rested on proper foundations, if not of natural law, at least embedded in a social contract that can be thought to have preceded and guided the structuring of the institution under positive law. But his sense of intellectual property antecedent to the American constitutional regime is conversely beholden to fiat or other arbitrary arrangement not grounded in the empirical undertakings of the enlightenment.
But Locke’s view of property, influential to the founding and to yours truly, that posits an empirical moral basis for the existence of property, while often speaking of the reduction of tangible resources through labor to the personalty, finds as its basis a wider conception of property, i.e. the self ownership of life and liberty.
The concept of the ownership of the self as the moral foundation for the institution of property quite readily offers support to intellectual property as well as real property. While much of the subsequent treatise imagines this as reduction to tangible personalty, this is based on the abstract and much more encompassing concept of self-ownership.
With regard to real property, Locke says:
At least if one is Lockean, or recognizes a measure of his influence in the translation of the social compact developed during the enlightenment to the rule of law, one could quite imagine this concept, taken in isolation, would limit real estates quite severely. Perhaps they can have gotten larger if technology allows a man to till a larger area. And perhaps one can import improvement for shelter as virtually nobody tills the land they own anymore, but would this disconnect their ownership from the precedent of inclosure, tillage and heredity based on Locke’s view of the parents responsibility to support their offspring?
The analogy of the present institution is far from perfect to these natural law origins, yet I think observations on real property at present are at significant odds with the proposal that it has come to be a creature of positive law only. Obviously there are collectivists who push just this view, and counter not only the present circumstance but Locke in his time as disguising a wholly fabricated societal construct as having instead an existential character outside the will and wishes of society? I maintain that the lack of perfect analogy to the circumstances contemplated by Locke does not undermine the place of property as precedential to government, rather than the vice versa.
Turning to intellectual property, I can think of nothing more commensurate with Lockean self-ownership than that the fruits of the mind’s labor be equally recognized as those of the rest of the body. That intellectual property, then, has made its own transit from feudal and authoritarian forerunners to reside in the positive law does not make it a creature solely of the positive law. This is my fundamental disagreement with Bill’s outlook.
Certainly I think one cannot allege that normative understandings of intellectual property have proceeded along identical paths or under a most highly analogous regime to real property. But this does not necessarily undermine a claim of precedential origin.
A key concept in American constitutional understandings is that rights, while being invoked in the context of the rule of law, are precedential or retained aspects of human liberty, i.e. self ownership. Thus the constitutional invocation of a right of exclusion with regard to intellectual property is a philosophical tell.
A note here is due to the brilliant theorist of economic liberty, Tom Palmer, whose extensive writings on the impropriety of patent and copyright, e.g. (warning 50 page .pdfs) here and here, examine the institutions as an infringement on the liberty of others moreso than the instantiation of the liberty of the creator/inventor. I think he correctly highlights the tension of liberties involved and properly animates the debate over the incidents of property as both liberal and illiberal. Having recognized the legitmacy of this line of argumentation thous, it is certainly at my own great peril that I highlight having reached the opposite conclusion on the resolution of this conundrum than this highly agreeable patron who first taught me the science of comparative advantage. Ironically, it is precisely on his transmission of Ricardo where my objection to his theory of intellectual property rests.
Firstly, there is nothing particularly distinguishing between the notion that a mental undertaking may be recognized by a patent or copyright and thus limit the freedom of others to copy or practice these particular arts, and the notion that a deed may be filed in the land evidence records and so circumscribe the liberty otherwise of all to use that land in common.
But, if there be any legitimacy to societal enforcement of exclusion, it rests on the moral proposition. We Lockean’s prefer just deserts. Even utilitarians or consequentialists who seek the greatest good for the greatest number are expressing this as the value which would guide the positive law — albeit reasonable men [or Congress] may differ greatly on the accomplishment of that aim. My moral proposition actually considers both points of view. I believe that strong self-ownership , and attendant institutions of real, personal and intangible property, that protects the fruits of ones labors broadly construed offers the greatest good to the greatest number — not simply as a statistical proposition but recognizing the respect for the incidents of life, liberty and property as the very foundation of civil society – the alternative being feudal, tyrannical, or anarchic.
But economists argue, that intellectual property need not be exclusive in order for its creator to benefit. The creator experiences no marginal cost, nor exclusion to himself simply because others copy his works – according to such arguments. Whereas should someone take the apple you have grown you cannot have it.
This is indisputable insofar as it goes, but I don’t see that as very far. The important reduction through commerce of labor’s fruits to non-perishable estate proceeds naturally through comparative advantage which operates on the very premise that some are better at one thing than another. Palmer introduced the idea as two producers, one of fish and one of apples engaging in exchange because one was better at fishing and the other equal or better in orchardry. So if the orchard man sacrificed the production of a hundred apples to catch a fish, whereas the fisherman sacrificed the catching of two fish to produce a hundred apples, then the fisherman could instead trade a fish for 75 apples and both parties would be better off. Self evidently such trades could continue with this and other orchards, and if the fisherman got sick of apples or the orchardists were wondering where’s the beef subsequent commerce could ensue with other producers leading ultimately to a medium of exchange and/or as the fish and apples rot to exchange of excess for durable goods.
But suppose, instead, that someone offered to show the farmer how to double his apple production with an equal investment of human effort. Is it to be assumed then, that any futher claim to comparative advantage based on this intellectual contribution evaporates because of the ease with which it might be copied, or the fact that the creator has no marginal cost for such additional copies or use. Except of course, he does have a cost, because if he is getting apples in return for rendering the technology to the first fellow (or by practicing it himself), and then the market for apples becomes flooded by those copying the technology, the worth in exchange of the apples for other goods will be negatively affected.
Now I’m not talking about the conduct of the policy at present, or whether patents on peanut butter and jelly sandwiches without crusts and forked around the edges or one click ordering are propitious examples as against the esteemable origins of intellectual property. Certainly those pushing the point are only cheapening the institution, even when they do not prevail. In my mind non-obvious should be a much stronger standard.
But I am absolutely convinced that the right to exclude from (and by implication the right to dictate the use of) property is its most significant incident. I cannot countenance the submission that the use of “property” to describe the fruit of the mind’s labor is somehow fostering a stampede of moral panic. And my further concern is the impeachment of property generally that attaches to such a characterization.
Finally, as a point of consistency, if one accepted that we are debating the positive law, which is, after all, arrived at politically — I can’t possibly accept the negative connotation you imply by saying the use of the term “property” is inappropriately political. You seem to thus concede that “property” has a pre-polity or ex-polity influential character. Unless you can describe that character as not arising from self-ownership and the entitlement to the fruits of one’s labor I do not think you can exclude intangibles.
We can argue about the propriety of positive law regimes that incorporate a respect for those intangibles and I am probably with you on skepticism of a regime driven by Valenti, Disney or the like. But I am not with you trying to gain ground on your policy propositions by alleging the impropriety of the other side being political. I’m shocked, shocked, round up the usual suspects.
Sorry that this has turned into a novella, but I most appreciate your erstwhile efforts to be responsive if not agreeable to all who have participated in the comments on your posts. You have been most generous and I especially appreciate the attention because this is the reward I seek for my mental labors, and you have granted it – as have numerous other commentors to this post thereby vindicating the propriety of my reward from all who consume this property and not simply the one who enticed my participation.
Very curmudgeonly yours,
Brian
October 10, 2009, 12:14 pmBill Patry says:
I wanted to respond to a few of the very insightful comments made after my last comment. American Psikhushka was surprised by Sir Hugh Laddie’s description of the current state of intellectual property as “gluttonous,” asking: “Shouldn’t the creation of great value result in great rewards? Again the example of the pulp romance novel versus the J. K. Rowlings books come to mind. From what I can tell things are very proportional – those who produce valuable intellectual property sell an incredible amount of it, therefore they make great profits. The profits are going where they should, to those creating the most value.”
Both Sir Hugh and I would agree with this statement, which would be as true if the term of protection was 28 years as life plus 70 years. The reference to gluttony refers not to how much money an author makes from a work – the more the better I say, and I pine for the day when I sell a book that sells even 10,000 copies, much less the staggering numbers for vacuous airport books like those of Malcolm Gladwell. Sir Hugh and I are talking about something different: the scope of rights and the length of protection, both of which are, in our opinion, far in excess of what is necessary to cause authors to bring their works into existence, and which instead lead to fewer works.
Due to my poor writing, Brian the Devil’s Advocate (who is very far from being a curmudgeon) can’t distinguish in my supposed “objections to the use of ‘property”’ as ‘political’ a real difference from collectivist objections to the use of the term with regard to tangible ‘property.’” I apologize for the confusion. First, I am not a collectivist, nor have I ever written in glowing terms about the public domain. I reject the thesis of some that the purpose of copyright is to expand the public domain. I also have no objection to the use of the word “political” in connection with property. I think it quite apt. On page 103 of the Moral Panics and the Copyright Wars book, I favorably quote from Laura Underkuffler as follows: “Property is, however, never “an extra-political institution, free of social choices. . . . Property is quintessentially and absolutely a social institution. Every conception of property reflects . . . those choices that we — as a society—have made.” Laura Underkuffler, The Idea of Property 54 (2003).
Brian’s other points concern philosophical and moral issues. He says, “Thus the constitutional invocation of a right of exclusion with regard to intellectual property is a philosophical tell,” and “But, if there be any legitimacy to societal enforcement of exclusion, it rests on the moral proposition.” This then leads him to Tom Palmer and John Locke. I thank him for the links to Palmer’s writings on intellectual property, which I have downloaded (fair use I hope) and will read. As for philosophy, morality, and Locke, I confess to being out of my element. I do think though that efforts to find a single, unifying foundational theory for copyright are fruitless. As Augustine Birrell noted in 1898, in a passage I quoted before: “The origin of property, of exclusive ownership, is one of the subjects about which our predecessors in title loved to discourse at large after a fashion more ingenious than historical. “ To me, while such exercises are origin stories, of which Joanne Wright has observed, they are “narratives that do more than simply uncover beginnings; they authorize implicitly particular solutions.” Joanne Wright, Origin Stories in Political Thought: Discourses on Gender, Power and Citizenship 9–10 (2004). Like much historical writing, origin stories are more an effort to influence the present than to unearth the past.
And there is nothing wrong with using the past to influence the present, and to do so by using the writings of past authors as speaking to the present; that after all, is what makes prior writers great, the ability to speak beyond their own age. Locke appeals to many, including Brian. I know so little of his writings that I have no views, but I do think that far too much is made of Chapter V of his Second Treatise on Government as somehow relevant to copyright. So do some others. See for example, Zemer, The Making of a New Copyright Lockean, 29 Harv. J. L. & Pub. Pol’y, 891, 896 (2006); Craig, Labour and Limiting the Author’s Right: A Warning Against a Lockean Approach to Copyright Law, 28 Queens L.J. 1 (2002).
Locke himself was far more pragmatic. In 1664, for example, in arguing successfully for expiration of the Licensing Act, he took the position that “it may be reasonable to limit their property to a certain number of years later the death of the Author, or the first printing of a book, as, suppose, 50 or 70 years.” Memorandum on the 1662 Act, reproduced in Locke, Political Essays 330–337 (Mark Goldie ed. 1997); DeBeer, 5 Correspondence of John Locke 785 (1978); 1 Lord Peter King, The Life of John Locke 375, 378 (1830). The word “their” here refers to the Stationers’ Company; Locke thus did not propose even vesting rights in those whose “Labor” and “Work” of his body created the book, namely the Author. As the great Irish copyright scholar Ronan Deazley notes: “For Locke . . . what property existed in a book was to be statutorily defined as well as temporarily limited in extent.” Deazley, “On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain (1695–1775) at 9 (2004).. For Locke, then, copyright was merely positive law. And to that extent I too am a Lockean.
October 10, 2009, 6:29 pmAmerican Psikhushka says:
Mr. Patry-
Both Sir Hugh and I would agree with this statement, which would be as true if the term of protection was 28 years as life plus 70 years. The reference to gluttony refers not to how much money an author makes from a work – the more the better I say, and I pine for the day when I sell a book that sells even 10,000 copies, much less the staggering numbers for vacuous airport books like those of Malcolm Gladwell. Sir Hugh and I are talking about something different: the scope of rights and the length of protection, both of which are, in our opinion, far in excess of what is necessary to cause authors to bring their works into existence, and which instead lead to fewer works.
Your opinion would seem contradictory, since a shorter protection period would indeed cut into the profits received from the most successful and enduring of works. It also would penalize those authors whose works are discovered long after they are first published.
And I’m not sure that leading authors to produce more works is a valid concern for the State or policymakers. If you mean the industry generally, I’m sure there are many books published that don’t sell well. There are likely many that don’t even cover their cost of production. If you mean more works by a specific author, I’m not sure that is appropriate either. Why don’t we increase taxes on individuals so that many have to work an additional part-time job? If it’s appropriate to use the law to pressure authors to produce more, surely it would be appropriate to pressure legislators, for example, to be more productive?
The word “their” here refers to the Stationers’ Company; Locke thus did not propose even vesting rights in those whose “Labor” and “Work” of his body created the book, namely the Author.
I’m not an expert on publishing during the period, but I assume the publishing rights were sold to the publishers, so we are still talking about those holding the rights to a work.
Locke himself was far more pragmatic. In 1664, for example, in arguing successfully for expiration of the Licensing Act, he took the position that “it may be reasonable to limit their property to a certain number of years later the death of the Author, or the first printing of a book, as, suppose, 50 or 70 years.”
Couldn’t track that letter down. That quote seems rather ambiguous, so I can’t address the point without more context.
As the great Irish copyright scholar Ronan Deazley notes: “For Locke . . . what property existed in a book was to be statutorily defined as well as temporarily limited in extent.” Deazley, “On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain (1695–1775) at 9 (2004).. For Locke, then, copyright was merely positive law. And to that extent I too am a Lockean.
The argument above wasn’t that intellectual property rights aren’t recognized and enforced by positive law. It was that physical property rights are also enforced using positive law, so the fact that positive law is used doesn’t undermine the moral and natural rights basis for intellectual property rights.(And from there that shorter protection periods would penalize the greatest creators of value and those whose works take longer periods to become recognized and profitable.)
October 11, 2009, 3:31 amdevil's advocate says:
Bill,
We’re all Lockeans now. It’s a wonderful life. You’ve joined my team.
I believe I was at some pains to point out that i was not invoking the meme of collectivism as a caustic label but rather using it as a more circumscribed by appropriate descriptro of the intellectual commons. Again I wade into presumption, but I think your comfort with real property and discomfort with intangible property flows from an analysis that suggests society is better served by a stonger recognition and protection of the former than the latter. In other words I don’t believe you desire collective outcomes, but that you are open to the outcomes that produce the most efficient results. Your calculus leans more towards a common with regard to intangibles.
In the sense of accepting other than perpetual ownership, perhaps I agree in principle, although I think the two institutions far closer and more linked. In any event, I greatly respect your contributions to discourse which have brought me back to an area I have not plumbed since reading Tom Palmer’s papers. I am sure you will enjoy them, and you’ll see that open intellectual property culture is not incompatible with a regime of strong and long copyright protection. Tom wishes his ideas to be read and has always made them available as do the v ast majority of ‘writers’.
I greatly respect what Google is doing, and understand that they will have hit a trip wire and have to grapple with how to engage in one of the greatest projects in mankind’s history while respecting extant intellectual property, which is not to say venerating it, or not exploring the realms of fair use and the realities of indirect creative destruction through technology. I think we are probably fairly close on the substance of some of these issues, but we find ourselves across a gulf of philosophy, to wit, I must suggest that living by the sword — as you have shewn so recently — includes dieing by it.
Indeed one might easily convert your reasonable objection to the apparent narrowness of consistent reference to Chapter V of The Treatise on Civil Government thusly:
far too much is made of “Memorandum on the 1662 Act” as somehow relevant to copyright. First and foremost his attacks on the stationers monoply are not meant to debase intellectual property. They are instead contributions to the 1st [and 4th] amendments that simultaneously recognize properties of authors as not violative of Freedom of the press. He majorly argues that prior restraint on sedition is improper and objects to the disguise of censorship as a purported interest in protection of the author’s property.
I tend to think your own license with Locke licentious if you imagine he did not in the most natural and fundamental sense see that property as the author. I doubt you deliberately truncated the quote but allow us to pull back the lens:
First and foremost, he is not referring to the stationers as you suggest. Rather he is referring to whomever should hold the interest in a contemporary work. While it presumes, because of the business model of publishing that the interest is devolved to a purchaser, this is not necessarily the stationers. The reference is rather to the ridiculous idea that the stationers should have been granted exclusive license to ancient works, while the contemporary process of registry protected the author’s interest but required this submission to prior restraint of sedition.
Numerous writing on the topics holds the same view and makes quite clear that the laws are to secure — not to create — the author’s property. See, e.g., Locke’s proposed amendments to the renewal of the licensing act on page 338 of Goldie’s Locke, Political Essays (the page immediately following your citation to pg. 337) (and I must thank Google for allowing me to quickly say so, although I think the content excepting annotation is well within the sense of ancient authors who both Locke, I and you believe reasonably within the public domain):
Let us drop the pretense that Locke believed only government licensed presses could have property in these intellectual products. Quite to the contrary, he clearly sees the property as vesting in the author and pre-existing the government grant which is to afford it protection.
This process is almost perfectly analogous to the civilized registration of real property as a protection for ‘inclosed’ real estate (obviating as I have said, the need to wall it off and hire a bunch of knights to patrol the ramparts waving their private’s at your auntie – oops I figured it was OK to quote Monty Python now that Michale Palin suggests at least viewing English empire with a certain dualistic outlook rather than prohibiting discussion of possible merits). Locke’s quite comfortable use of the word property and his allocation to the creator make clear that this is no Johnny come lately jack Valenti scheme. Locke thought that the intellectual product belongs to the author and despite the incursion on the liberty of others, a factor he was at that very moment discussing as he advocated the Liberty of the Press and decried the obnoxious powers of search and seizure awarded the stationers, the property is entitled to be inclosed to their exclusion except at the author’s license.
The fact that he thinks 50 or 70 years following first publication is an appropriate duration in no way detracts from the sense that he thinks this quite obviously property, he simply regards its rational durability and the natural extent of the property as differing in temporal character from that of real estate. But his comfort with the term property during that term and his sense that it obviously belonged to the author make abundantly clear to all who will see that he say this as a natural and antecedent reality to government schemes for its recognition and protection.
now, whether you think that’s a proper philosophical basis, or your dispute Locke’s comfort with this concept is a wholly different question — although it doesn’t enter our dispute, because ‘we’re all Lockeans now’. As to those who do fault a natural right in intellectual property, I will concede that the Honey do list looms on a crisp and sunny Sunday and I must decline the immediate invitation to read the cited critics ‘warning against a Lockean approach to copyright’. I shall certainly endeavor to do so, but I submit that the evidence is not that Locke would have been against a Lockean approach to copyright, or that he imagined copyright as not enacting in the positive law the natural incidents to which an author was entitled.
Best regards of a Sunday,
and remaining very curmudgeonly yours,
Brian
October 11, 2009, 10:58 amdevil's advocate says:
damn, what happened to the comment editting links. that was only thing i liked about this new platform and they’re gone. I think it’s mostly understandable but I made the normal amount of syntax errors and oversites.
October 11, 2009, 11:07 ambrian
Stephen says:
You can type pretty much anything you want, including intellectual property of your own.
This is true of (at least certain uses of) copyright law, but not of intellectual property in general. Patent law says that “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent” (35 USC 271(a)). So even if you use your own resources, in your own house, to recreate a patented device for your own personal (non-commercial) use, you’re still violating patent law.
You could also likely even re-type someone else’s novel to read yourself. The problem only comes when you try to profit from someone else’s intellectual property,
Profit isn’t the only factor. Otherwise, file sharing of copyrighted music for non-commercial use wouldn’t be illegal.
October 11, 2009, 5:06 pmBill Patry says:
American Psikhushka, my point about 28 years versus life of the author plus 70 years was a practical one: most authors, to the extent they make much money, do so immediately upon release. This is true for their publishers too, and for most copyrighted works. In my blog on the book, I asked Ben Sheffner, an LA entertainment lawyer to name one movie that recouped its money, if at all, only after 28 years, or was greenlighted on that basis. I am aware of none. Copyrighted works are created and distributed with pretty immediate returns in mind. The renewal figures I quoted in a previous post here show an average renewal rate of only 10%, and books at 7%. Given that any publisher could have gotten 28 years more protection for $10 and filling out a government form, 28 years proved quite adequate.
I was very happy to see Brian’s comments, and I very much appreciate his further (or more complete) quotes from Locke. I do think though that Locke was a positivist when it came to copyright. Some of the quotes from him have to do with the licensing acts, which were positive law. The amendment to the licensing act Brian quoted doesn’t change this in my mind. I am aware of no case in the 17th century where an author was able to stop a publisher who took his “copy” — which by the way refers to the physical manuscript and not to intangible copies — without permission. Augustine Birrell pointed this out in 1898, “considerable spade work was done by lawyers such as Blackstone and famous authors to establish the existence of a perpetual common law. Yet, not a trace of it has been discovered in the days of manuscripts, copyists, and plagiarists.”
The lack of any evidence of common-law rights in manuscripts before 1710 is hardly surprising, given the nature of legal rights in publishing at the time. The only rights against unauthorized publication of manuscripts existed either by royal privilege or by registration with the Stationers’ Company, under the authority of their charter and Licensing Acts, and the remedy for publication contrary to a registration would lie within the Stationers’ own system of adjudication, an not with the courts. Individuals were simply out of luck unless they could strike a voluntary deal with the publisher, as Milton did for example. Since such arrangements were not usually possible (why pay for what you can take for free), authors were left either to protest vainly the pirating of their works in newspaper advertisements or putting out an authorized version, usually with corrections and “improvements” in order to appeal to the public’s desire for the latest version, or both.
So while Locke might understandably have wanted an amendment that might have changed this, none was made, and he like all other authors were at the mercy of the Stationers’ Company members: their view of property and authors was decidedly different: rights over “copies” were given by the company first under the royal charter or later the licensing acts and given to them, not authors. After 1710 this changed by statute. I have well over a 100 pages of historical discussion of this in my general treatise, available on Westlaw at the PATRYCOPY file, or if you don’t have access to Westlaw, email me at WPatry@google.com and I will send you a pdf of the whole chapter.
October 11, 2009, 5:39 pmChrisTS says:
Stephen:
Profit isn’t the only factor. Otherwise, file sharing of copyrighted music for non-commercial use wouldn’t be illegal.
But one who downloads a file and listens to it without paying for it, does ‘profit’ unjustly at the cost of whoever made the music and wants to sell it. Ture, the downloader might not sell it to anyone else, but I think the moral argument – and the moral claim to loss of property – applies nonetheless.
October 11, 2009, 6:30 pmChrisTS says:
As a related matter:
The commercial websites that pay [a pittance] to students for the course materials prepared by their professors seem to me to be indefensible.
Personally, I do not mind if my students share my course materials with others. I am not happy to have them sold, but I think of them as part of what I ‘give’ to my students; if they want to sell them, I am not all that concerned.
But that some other entity should get to make considerably more money than any student ever will by selling those materials and do so with no relationship to me – much less my permission – strikes me as wrong. (Not that I think they’ll ever make much from my own stuff.)
October 11, 2009, 6:39 pmAmerican Psukhushka says:
Stephen-
This is true of (at least certain uses of) copyright law, but not of intellectual property in general. Patent law says that “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent” (35 USC 271(a)). So even if you use your own resources, in your own house, to recreate a patented device for your own personal (non-commercial) use, you’re still violating patent law.
You are correct, I was mainly referring to the copyright exampled cited. Although if one wasn’t engaged in selling the patented material or using it in another commercial way one would be unlikely to be sued.
Profit isn’t the only factor. Otherwise, file sharing of copyrighted music for non-commercial use wouldn’t be illegal.
As ChrisTS also states downloading copyrighted material for free certainly has a commercial impact, since one is unlikely to purchase the same music. On peer to peer systems they are also facilitating other unauthorized copying.
October 12, 2009, 5:27 amAmerican Psukhushka says:
Mr. Patry-
American Psikhushka, my point about 28 years versus life of the author plus 70 years was a practical one: most authors, to the extent they make much money, do so immediately upon release. This is true for their publishers too, and for most copyrighted works. In my blog on the book, I asked Ben Sheffner, an LA entertainment lawyer to name one movie that recouped its money, if at all, only after 28 years, or was greenlighted on that basis. I am aware of none. Copyrighted works are created and distributed with pretty immediate returns in mind. The renewal figures I quoted in a previous post here show an average renewal rate of only 10%, and books at 7%. Given that any publisher could have gotten 28 years more protection for $10 and filling out a government form, 28 years proved quite adequate.
That’s all well and good, but it doesn’t address my earlier points. Those creators who create the most value with the most enduring works would still have their profits curtailed, along with those whose works are discovered later. (DVD and on-line sales of some older works – for example sci-fi and cult classics like Star Wars, etc. – have to be pretty signficant.)
So while Locke might understandably have wanted an amendment that might have changed this, none was made, and he like all other authors were at the mercy of the Stationers’ Company members: their view of property and authors was decidedly different: rights over “copies” were given by the company first under the royal charter or later the licensing acts and given to them, not authors. After 1710 this changed by statute.
The historical facts about royal printing monopolies and cartels and the like aren’t being disputed. But it’s certainly the case that there is strong foundation for the case that Locke did support a copyright regime much like the present day, rooted in natural rights like his outlook on physical property. In fact the system we have today would have been much more agreeable to him than the one that existed during his lifetime.
October 12, 2009, 8:17 amdevil's advocate says:
Bill,
It may be that our argument here boils down to semantics, but, at the risk of out-rushing rush, semantics matter.
Here is the logic I don’t follow. Because Locke, in discussing amendments to a renewal of the Licensing Act, refers in the most natural way to the incidents of authorship as property, and because his own attempts, unavailing until the statute of Anne were to preserve that property even whil vacating the monoply on ancient works and other explicit censorship that attended the orginal licensing act and star chamber edicts before that, we are somehow to assume this a declaration this property was not a nature precedential to the licensing act itself.
His reference which I quoted to the “author’s property” makes it quite clear where the origin of the property interest arises even though this phrase would have been in direct conflict with the act. Because the stationers was essentially a technology or trade guild that didn’t incorporate authors but rather printers, it is fair to say that the arrangements struck were of a monopolistic nature and that author’s did not exercise the kind of control over their work we currently associate with property. Yet Locke called it the author’s property as if this were an obvious conclusion despite the actual state of the positive law.
And then to say that his view was not adopted, is not to say that was not his view, eh?
And further to look at the Statute of Ann and to say that the temporal adoptions do not seem to trace to his recommendations would provide little evidence that his influence is absent from the adoption.
As ChrisTS says about the selling of his class notes it “strikes me as wrong”.
I think it struck Locke as wrong not to protect the author’s property, not because it would represent a failure of continuity in the positive law (as did occur), but because it represented a failure in continuity of the obvious and manifest right of the author to the licensing of their own creation.
Locke arguably sought to disaggregate state interest in quelling sedition from the author’s obvious interest in protecting the copy of their work.
It is a reasonable argument to suggest that natural law proponents should bring to the table some evidence of spontaneous or private undertakings of copyright antecedent to the positive law. If the natural instinct on the this subject were so deep and profound then some undertaking in this regard ought to have manifested itself.
I don’t propose myself to have the depth of historical scholarship at hand to ansewr conclusively on this question. But my intuition suggests to me that this largely became an issue due to the advent of the press which would have been both the opportunity to desseminate copies as well as providing a threat to the ability to inclose such possibilty to the exclusive benefit of the author.
Fences and walls had been around for millenia at that point meaning that customs of real property inclosure were long established and processes had proceeded through interaction of law and custom through many societies to the then present circumstance. Taken in that context, the development of copyright seems downright hare like and it’s speedy incorporation into the positive law arguable a reflection of the recognition of intellectual property.
Locke’s most natural and uncontorted references to the the property in such works is either the beginning of the political elevation of intellectual property inappropriately or the appropriate understanding that inclosure became relevant to intellectual property as technology allowed others into your intellectual yard.
The stationers after all started off as a guild of those selling paper and ink to produce manual copies but the advent of the press turned them into a guild of printers. While their actions represent what we would recognize as regulatory capture, it seems certain that they were taken to guard their interests as against one another in securing their interests in copies which, having bought them from the author, they reasonably assumed they ought to keep in sole license.
It is true that the stationers license was perpetual, and perhaps that the very oddity of awarding the stationers the license to ancient works from whose authors they could never have purchased license, even at the nominal monopolistic rates, itself gave rise to the sense that the naturally based intellectual property instituion should not have a perpetual nature.
So these are perhaps discoveries where the positive law informs the instantiation of commercial customs that alters the thinking of porponents from the natural law side and thus alters the contours of the positive law. Think for instance of water law which evolved into positive from customs on two very different tracks. The English riparian regime and the civil management regime partly oweing to french law and largely constructed from whole cloth of private practices in the western united states.
One could argue, and environmentalist often do, that water rights as independent transferable property are strictly creations of the positive law in the sense that they were not secured under the rule of law until such positive legal regimes. This totally ignores the context of their adoption into the positive law.
Locke equally saw the possession of these intellectual property incidents as saleable, hereditary albeit limited in duration — but he did not call these leaseholds in the intellect or the renting of one’s copies, he called them the “author’s property”.
You can think Locke’s framework unwise or unworkable, but I haven’t seen any quotes from Locke or context that lead me to believe he thought these incidents so different in character from real property as to be solely the fiat of government policy, rather than that the government policy he advocated coordinated with the rights to inclosure that seemed appropriate outside government intervention. Of course they are secured by government. That is the whole point of having a government. If it doesn’t secure your stuff, it’s useless.
Hope I haven’t spent too much time making circular hash. Today we’re going honky-tonk. Any conspirators in southern NE are welcome to join us – e-mail me for directions at riwiseuse@cox.net although as with many invitations from the conspirators to lectures, this one probably comes to late. But, in the spirit of the Sunday Song Lyrice, you can join us vicariously here and here.
Happy Columbus Day.
Brian
October 12, 2009, 10:06 am