Just Calling Something Property, Doesn't Make It Property
from the good-points dept
For years, we’ve pointed out how rather insidious it is to refer to copyright and patents as “property,” as it leads to those who support traditional property rights to default to supporting these government-granted monopoly privileges as if they were property. Stewart Baker, over at the Volokh Conspiracy, does a nice job suggesting that some folks’ brains seem to shut off once they see something called “property,” even when it has little that makes it “property.” He’s specifically addressing conservatives and libertarians, but on this debate, I think the traditional labels don’t really apply. I’ve seen liberal/progressives argue on exactly the same lines. For better or for worse, copyright/patent debates don’t seem to fall along traditional political lines. Considering that most of the American political spectrum (despite what you might hear…) does believe in basic property rights, calling copyright “property” gets lots of people to agree that it must be important to support, without having them think through the details:
Viewed up close, copyright bears little resemblance to the kinds of property that conservatives value. Instead, it looks like a constantly expanding government program run for the benefit of a noisy, well-organized interest group — like Superfund, say, or dairy subsidies, except that the benefits go not to endangered homeowners or hardworking farmers but to the likes of Barbra Streisand and Eminem.
It looks like Superfund in other ways, too. Copyright is a trial lawyer’s dream — a regulatory program enforced by private lawsuits where the plaintiffs have all the advantages, from injury-free damages awards to liability doctrines that extract damages from anyone who was in the neighborhood when an infringement occurred. … It’s asbestos litigation for the Internet age.
Conservatives — and especially libertarians — seem like a cheap date on this issue. You’d think libertarians would have been in the forefront of objecting to governmental intrusions into our lives at the behest of a special interest — let alone the creation of a new class of quasicriminals, defined as more or less everyone who entered high school after 1996, who can be investigated and prosecuted whenever the government or some member of industry decides that they are too troublesome.
Where it gets fun is that Baker points out that you could pull the same trick elsewhere, by calling other non-property things property. For example, he tries to explain how property rights supporters could be taught to like the TSA’s security procedures if we just noticed the “property rights” inherent in the discussion:
Come to think of it, maybe I can persuade readers here that TSA’s new enhanced security measures are just fine — as long as we enforce the rules by giving all the passengers on the plane a “property” right not to travel with people who refuse body imaging and enhanced patdowns. Instead of relying on oppressive government regulation, we?d just let the passengers collect millions in “statutory damages” from noncompliant travelers.
And that’s kind of the point. You can create all kinds of fake “property rights,” if you want to distract from what’s actually going on. But it doesn’t make the underlying issue property.