Literary Property:

I am no historian of early copyright, but my sense is that copyright was pretty broadly referred to as property in the late 1700s and early 1800s -- though if you search for this, you had best search for the term literary property, rather than the somewhat more modern intellectual property. Justin Hughes's Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson discusses this well.

This is entirely consistent with treating this kind of property differently from other kinds of property in certain ways -- for instance, treating it as limited in duration, or subject to certain kinds of use by strangers that would not be allowed for land. My point is simply that there is at least a broad and deep legal tradition of treating copyright as property; such a view is no modern innovation, as some have suggested.

Interestingly, Federalist 43 concedes that copyrights are common law property, although that's probably a reference to the later-overruled (by the House of Lords in Donaldson v. Becket in 1774) adjudication in Millar v. Taylor, from the King's Bench in 1769.

So for 5 brief years, copyrights in Britain were natural law PROPERTY rights, and Federalist 43 does seem at least somewhat complicit with that notion. Now, whether the framers were *unaware* of Donaldson, OR whether they knew of it and just disagreed with it, either way it might support an original-intent argument for the property-view.

But I also agree that the "literary property" in "mental labor" (as it was called...emphasizing the parallels to physical property, where man likewise enjoys RIGHTS in the fruits of his labors!) conception was only workable because the rights were indeed so narrowly defined. When these rights get stretched, then people start invoking a more *intertwined* perspective of how "inevitably" related various works allegedly are, as opposed to the more all-works-exist-in-a-vacuum view (which of course has is limits, but is not nearly as illegitimate as it's sometimes derided to be).

Then again, some scholars suggest that Madison was merely trying to appeal to folks whom he knew wouldn't tolerate anything sounding like the monopolistic activity the Crown was so known/disdained for...

Justice Thompson's dissent in the first (1834) US case regarding copyright-as-common-law-property (in arguable addition to the federal supplemental protection, as analogous the what the Statute of Anne had initially been held to be in Millar) is actually a very interesting review of the relevant historical developments. Lord Mansfield (author of Millar) had apparently criticized opponents of literary property for scaring people into thinking that it was somehow problematic to recognize it -- in part because the scope of those rights were too *narrow* to lock up ideas, etc., as still feared today...with perhaps more justification.
6.12.2007 2:03pm
BruceM (mail) (www):
Why not get Larry Lessig to guest blog on these topics. Just a thought.
6.12.2007 3:03pm
Adam Mossoff (mail):
In addition to Professor Hughes's excellent study of the role of property concepts in the history of copyright law, Professor Mark McKenna has produced a fascinating monograph on the role of property concepts in the history of trademark.

Like Professor Hughes's and my work, Professor McKenna challenges the conventional wisdom today that trademarks are historically rooted in consumer protection policies, showing instead that trademark developed as a property entitlement. A draft of his article can be accessed at:
6.12.2007 3:38pm
I agree that the idea of "intellectual property" is not a "modern innovation" (although as a former student of Philosophy, I tend to think of "modern" in broad terms).

I would more suggest that whether or not calling these rights "property" is helpful or misleading has been a very long running debate.
6.12.2007 3:39pm
Truthfully, the more interesting arguments about early copyright note its explicitly utilitarian underpinnings; one only need turn to the long title of the Statute of Anne for an apt demonstration.

"An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned"

As it notes, it was an Act for the Encouragement of Learning. At a basic level, a trespass-type rule seems difficult to justify in the event it discourages learning (and the title also aptly guides one in the direction of the modern fair use analysis, which is what the poster in the earlier thread was completely blowing past).

Further, the Statute of Anne points one in the direction of the subtle balancing considerations of a detailed copyright analysis--something that may be rare in a 1L class.
6.12.2007 3:48pm
Clearly, the title of the Statute of Anne, as well as the prefatory language in our Constitution's IP clause, indicate a certain social-utility motivation driving both.

A legitimate question remains, however, whether this is the one and only reason to protect IP, or whether it's just an "extra" reason for "extra" statutory protection (beyond any purported natural-law "property" rationales).
6.12.2007 4:17pm
Joe Bingham (mail):
In one of the oldest law codes--Mosaic--physical property was limited in duration of ownership. It reverted to the original family of ownership every 49 (or so, can't remember the number) years. So land purchase was more like leasing, I suppose, and even that was looked down on.
6.12.2007 4:30pm
Joe Bingham (mail):
But everyone probably knows that, plus it's irrelevant.
6.12.2007 4:33pm