Copyright Week: How Copyright Is Being Use To Destroy Property Rights

Copyright

from the not-enhance-them dept

The latest in our posts for Copyright Week explores the concept of “you bought it, you own it,” and how that’s going away thanks to copyright. What’s funny (or depressing) is that copyright’s strongest defenders like to claim that protecting stronger copyright is about increasing “property rights.” We’ve long since pointed out that copyright and property are very different. Property, as a concept, was developed to better manage the efficient allocation of scarce resources. But when something isn’t scarce, it simply makes no sense to have a property right around it.

But we’re not here to discuss whether or not copyright is or isn’t property right now. Instead, let’s look at how copyright has fundamentally taken away property rights from many. And let’s start out with a look back into history. This isn’t something that is necessarily new. You can go all the way back to 1773 and the famous case in Scotland of Hinton v. Donaldson, in which Lord Kames was already aware of how excessive copyright can interfere with real property rights:

What is then the nature of the pursuer’s right? He does not pretend to say, that it is a right to any corpus, to any subject that can be possessed, or that can be stolen from him. Ergo, it is not property. Taking it in all views, no more can be made of it than to be a privilege or monopoly, which entitles the claimant to the commerce of a certain book, and excludes all others from making money by it. The important question then is, from what source is this monopoly derived, a monopoly that endures for ever, and is effectual against all the world? The act of Queen Anne bestows this monopoly upon authors for a limited time upon certain conditions. But our legislature, far from acknowledging a perpetual monopoly at common law, declares that it shall last no longer than a limited time.

But to follow out the common law. The composer of a valuable book has great merit with respect to the public: his proper reward is approbation and praise, and he seldom fails of that reward. But what is it that entitles him to a pecuniary reward? If he be entitled, the composer of a picture, of a machine, and the inventor of every useful art, is equally entitled. Such a monopoly, so far from being founded on common law, is contradictory to the first principles of society. Why was man made a social being, but to benefit by society, and to partake of all the improvements of society in its progress toward perfection? At the same time, he was made an imitative being, in order to follow what he sees done by others. But to bestow on inventors the monopoly of their productions, would in effect counteract the designs of Providence, in making man a social and imitative being: it would be a miserable cramp upon improvements, and prevent the general use of them. Consider the plough, the loom, the spinning wheel. Would it not sound oddly, that it would be rank injustice for any man to employ these useful machines, without consent of the original inventors and those deriving right from them? At that rate, it would be in the power of the inventors to deprive mankind both of food and raiment. The gelding of cattle for food, was not known at the siege of Troy. Was the inventor entitled to a monopoly so as to bar others from gelding their cattle? What shall be said of the art of printing? If the monopoly of this useful art was to be perpetual, it would be a sad case for learned men, and for the interest of learning in general: it would enhance the price of books far beyond the reach of ordinary readers. Such a monopoly would raise a fund sufficient to purchase a great kingdom. The works alone of Shakespeare, or of Milton, would be a vast estate. Te art of making salt water fresh is a very late invention. Was it ever dreamed to be a transgression against property, to use that art without consent of the inventor?

I observe, in the next place, that this claim, far from being founded on property, is inconsistent with it. The privilege an author has by statute, is known to all the world. But I purchase a book not entered in Stationer’s hall; does it not become my property? I see a curious machine, the fire engine, for example. I carry it away in my memory, and construct another by it. Is not that machine, the work of my own hand, my property? I buy a curious picture, is there any thing to bar me from giving copies without end? It is a rule in all laws, that the commerce of moveables ought to be free; and yet, according to the pursuer’s doctrine, the property of moveables may be subjected to endless limitations and restrictions that hitherto have not been thought of, and would render the commerce of moveables extremely hazardous. At any rate, the author of avery wise or witty saying, uttered even in conversation, has a monopoly of it; and no man is at liberty to repeat it.

Lord Kames immediately understands the dangerous nature of how copyright can actually interfere with the property rights of others, and it’s a situation that has gotten significantly worse over time, especially now that all sorts of things — digital and physical — include code or other content that can be covered by copyright law. And, as such, things that we “buy” every day are no longer actually being bought, but rather licensed — and with that license comes all of the restrictions that Lord Kames mocked as crazy centuries ago.

Last year, Alex Cummings wrote an excellent article discussing the end of property rights, because copyright was slowly being used to take those rights away, and how it’s only getting worse:

Today, we see a renewed attack on the rights of consumers by big business. Overly zealous regulation means that consumers are essentially barred from “unlocking” a cell phone, or severing the device from its original wireless carrier. Critics warn that such restrictions not only limit the rights of consumers but threaten to stifle old-fashioned tinkering and innovation. It is as if Ford told customers that they can’t pop the hood of their car and mess around its inner workings (which is how the world got NASCAR, incidentally).

How far should a phone company’s power extend into our personal lives when we buy one of their products? When you buy a phone or an MP3, is it really yours—or has a company just loaned it to you with a laundry list of stipulations and provisos? The age of cloud computing is upon us, and soon most of our books, movies, and musics might have no material form. We may discover that buying something no longer means owning it in any meaningful sense—and our stuff isn’t really ours anymore.

It used to be that if you bought something, you owned it. That’s a property right. But that’s being constantly eroded thanks to the over-aggressive use of copyright. Even worse, many of the worst abusers of this want the best of both worlds. They want to pretend something is a purchase when it benefits them, while arguing that same “purchase” is just a license at other times. It’s Schrodinger’s copyright. But the end result is the same: copyright is being used to take away basic property rights by hiding it in the fine print.

And that has massive implications for ownership, economics and innovation. True property rights are key to a functioning economy. But when everything you buy is not actually yours, and you’re unable to do what you want with it, then you limit the ability to build up markets and to further innovate. So much innovation comes from someone taking something they’ve bought, tinkering with it, changing it, improving it, making it useful for other purposes. But in a world where copyright and control rule over all, you limit that kind of innovation, such that only the copyright holder (often not the initial creator) can control that innovation and process. And that rarely ends well.

So, yes, let’s talk about property rights and how important they are. But if we’re talking about copyright in that context, it needs to be by noting just how far copyright has gone to take away and destroy our basic property rights. And that’s something that needs to change.

Filed Under: copyright, copyright week, freedom to tinker, innovation, licenses, ownership, property rights, you bought it you own it