OK, Landlord: If Copyright Supporters Are Going To Insist Copyright Is Property, Why Are They So Mad About Being Called Landlords?

from the copyright-is-funny dept

After writing this post, we realized that the phrase would make a great t-shirt! So now you can get yourself some OK, Landlord gear from the Techdirt store on Threadless »

For a long time now we’ve explained why comparing copyrights to property is fraught with problems. So much of the reason that we engage in property rights is to enable a more efficient allocation of scarce goods. When you have something that is not-scarce — or as the cool economist kids like to say “non-rivalrous and non-excludable” — treating them in the same manner as if they were scarce creates all sorts of weird problems, many of which we’ve spent two decades detailing on this site. Indeed, for every argument made that copyright is property, you could make a compelling case that it’s actually the opposite of property in that it frequently takes away the rights and ability of individuals to do what they want with products they rightfully own.

Five years ago, I noted that one of the big problems around the concept of “intellectual property” was the failure of people to separate the content, from the exclusive rights. That is, it’s fair to think of the copyright as a form of property — as the “right of exclusion” that it creates is more property-like — but that it must be seen as separate from the underlying content. The “copyright” is not the content. And so much of the discussion around copyrights conflates the right and the underlying content and that creates all sorts of problems.

Meanwhile, law professor Brian Frye has spent the last month or so making a really important point regarding the never-ending “is copyright property” debate — saying that if copyright is property, then copyright holders should be seen and treated as landlords. This whole approach can be summed up in the slightly snarky and trollish phrase: “OK, Landlord” used to respond to all sorts of nonsensical takes in support of more egregious copyright policies:

Like everyone, the copyright cops want to have their cake and eat it too. They claim that copyright is a kind of property, so the law should protect it just like any other kind of property. But they also claim that authors are morally entitled to copyright ownership because of their special contribution to society. I find both claims uncompelling, but in any case, they can?t have it both ways. If copyright is a property right, they have to own it and can?t claim the moral high ground.

What’s been most telling about this useful analogy is just how angry it seems to make copyright holders and copyright-system supporters. They react very negatively to the suggestion that they are “landlords” and any money they make from copyright licensing is a form of “rent.” But if you’re going to claim that your copyright is profit, then, well, the landlord moniker fits.

But the copyright cops persist, insisting that copyright is property, so copyright owners are entitled to the entire value of the works they create because that?s what property means. Accordingly, copying a work of authorship without permission is theft, even though it only increases the number of copies, because the copyright owner didn?t profit. And even consuming a work of authorship without permission is wrong because copyright owners are entitled to profit from every use of the work they own.

The circularity of these claims should be obvious: copyright is property because copyright owners receive exclusive rights, and copyright owners receive exclusive rights because copyright is property. But let?s run with it. Okay, copyright is property and copyright owners are property owners. Why are copyright owners entitled to profit from the use of their property?

Because they?re landlords. Copyright owners want to own the property metaphor? Then, let ?em own it. If copyright is property, then they are landlords and copyright profits are rent. Just like landlords, copyright owners simply make a capital investment in creating or acquiring a property, then sit back and wait for the profits to roll in.

As Frye notes, the whole idea that copyright holders are landlords (even as they claim that they are holding property that you need to pay them to use), shows the sort of emotional trickery that copyright holders use in also claiming some sort of moral right to their works as “creators.” They’re picking and choosing which arguments to use when — and, have long tried to imbue some sort of magical mystical status on holding the copyright to creativity (which is often quite different than creating itself).

Of course, the real issue at play is that many of the most vocal copyright system supporters want to believe that they’re “artists” who are fighting the system and speaking for the oppressed… and being a “landlord” who is renting out their property goes against that self-image. But as Frye notes, they can’t really have it both ways. If they want to declare that they have property rights, they should be perfectly find with recognizing that they are the current landlords for that “property.”

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Comments on “OK, Landlord: If Copyright Supporters Are Going To Insist Copyright Is Property, Why Are They So Mad About Being Called Landlords?”

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39 Comments
This comment has been deemed insightful by the community.
urza9814 (profile) says:

Actual landlords will hate it more

I feel like wearing that is likely to cause my landlord to revoke the license to my apartment… they evict people for negative online reviews or submitting maintenance requests for backed up storm drains or anything less than freaking worshiping them basically. They’re just as spineless and thin skinned as the copyright ones.

(Meanwhile, I suspect any copyright maximalists I run into probably wouldn’t get it…)

ECA (profile) says:

Hate the concept.

I wonder about artists then.
Do they deserve to be paid Daily? Per person that owns the work? Per person that See’s the work.

And if they have Rights, CAN they ever give them away? As every corp has taken from them over many years in the past.
Looking at the Music and movie industry, Does a person have the right to be treated as Dirt, stolen from, By those who have them sign a piece of paper?

This also comes with a caveat.. Can anyone give away their personal rights and responsibilities. I would suggest not.

An artist can create something, a Company Buys the product, then turns it into a Marketable thing. Has the Artist lost anything?

This comment has been deemed insightful by the community.
Sneeje (profile) says:

Re: Re:

I used to have a girlfriend like you who struggled with metaphor. She hated and always criticized them in any context because the metaphor was specifically not the thing it was being compared to or used to explain.

I never pressed her on it, but I’ll ask you–is it really so hard for you to understand that the thing "landlord" is being used to create an apt comparison, but not a direct equivalence? I’m trying to figure out if you’re being willfully ignorant or this is truly a gestalt-level gap in ability to understand.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:

is it really so hard for you to understand that the thing "landlord" is being used to create an apt comparison, but not a direct equivalence?

The whole point of metaphor, as opposed to simile, is that it leaves ambiguity about whether something is meant literally. Metaphor, like sarcasm, can be hard to detect over the internet, especially when dealing with "IP maximalists". Do you think they believe the term "stealing", when applied to people copying what they originally wrote, is a metaphor? I think many really believe that copying is stealing.

Precise language matters in this context, and as I’ve said before, Karl should stop saying "pirates" (and while I’m sure he doesn’t mean it literally, non-ironic usage inherently gives support to the maximalist view).

This comment has been deemed insightful by the community.
Sneeje (profile) says:

Re: Re: Re: Re:

Yes, metaphor is implicit vs explicit. But you are placing a far larger emphasis on that distinction than is warranted. Given the lack of land involved, 99.9% of people would have no problem identifying this as a metaphorical statement. It’s use out of it’s normal contextual use is exactly what makes it valuable as a communicative device. But you know that.

Precise language matters to you in this context, because the metaphor confuses you. The rest of us find it a useful device to understand some of the common characteristics between copyright and property ownership and how holders of those rights behave.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:2 Re:

The rest of us find it a useful device to understand some of the common characteristics between copyright and property ownership and how holders of those rights behave.

How would saying that they’re like landlords be any less useful of a statement?

Given the lack of land involved, 99.9% of people would have no problem identifying this as a metaphorical statement.

Given sufficient context, sure. On the internet, it’s almost certain that people will be quoted out of context. Even 20 years ago, a political aide was forced to resign after they were quoted using the word "niggardly" correctly. People judge soundbites, not details.

This comment has been deemed insightful by the community.
James Burkhardt (profile) says:

Re: Re:

You’ve missed the forest for the trees there my friend.

As used in this article, Landlord is being used to describe a property owner who extracts passive rents from the use of their property. This can, as you point out, describe most ways of extracting passive rents even when we aren’t discussing land. But in the US landlords aren’t nobility either, but we still call them landlords. In the same way, a property management company could be called property rental service, like a car rental service, but we’ve made artificial distinctions between the passive income generated by the exploitation of land versus transportation. Income generated by exploiting the use of property are described as rents.

The rhetorical point of calling them landlords is that while copyright holders claim they own property, they generally ascribe what they own as the content, rather than the rights to exploit the content. And when you describe income derived from those rights as rents and the holder as a landlord, you cast the lie to the claim that what they own is the content rather than the right to exploit the content in specific ways. Active Income is not generated from the content itself or its copyrights, but into the utilization of the content. Copyrights provide a passive rent income, taxing those who wish to utilize the content. The point of calling them landlords is not to suggest they are nobility who owns land, but to suggest they are rent seeking – having secured or developed some content (land) they now looking for rents for its use, rather than exploit the work directly.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:

we’ve made artificial distinctions between the passive income generated by the exploitation of land versus transportation

I’d argue that this distinction is not artificial. Land is unique among all other forms of property in two ways. First, the supply of land is fixed, whereas the supply of all other types of property is variable to some extent (or in the case of things like Glenavon Special Liqueur Whisky or other "unique" products, substitute products with variable supply exist). Even should we get to the point where it is feasible to colonize other planets and undertake massive geo-engineering projects, the supply of land will almost certainly remain untold orders of magnitude more inelastic than the supply of any other property. Second, other types of property have finite lifespans before they either wear out and become useless or resources must be spent to preserve/repair them, whereas land does not wear out or require any form of upkeep per se (yes, eventually the sun will expand and swallow the earth, but that time limit is not meaningful economically).
Ironically, IP is the form of property which could be most similar to land; given that time limits were removed and trademarks were no longer required to be actively used in commerce/enforced, IP would never "wear out" or require upkeep either.

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Anonymous Coward says:

Re: Re: Re:

But in the US landlords aren’t nobility either, but we still call them landlords.

You’re confusing etymology and meaning. "Landlord" has nothing to do with nobility; hasn’t for a century or more. Perhaps one day the term will apply to anyone who gains passive income from property, even "intellectual property". Right now, that’s a fringe meaning—or a metaphor, but in a world where people quote individual sentences out of context, you have to expect some to miss that.

Wyrm (profile) says:

Re: Re:

It’s a comparison. Like all other metaphors and analogies, it’s an approximation, and it’s also used here as a caricature.
And yes, you could compare car renters to landlords. It would make little sense as there is no debate over the status of cars and car owners, but we can.

Now, if you want us to stop silly comparisons like this, I (and probably most everyone else here) wouldn’t mind. But let the copyright holders stop comparing content to property and copyright violation to theft first. Then we’ll have a discussion about stopping the landlord metaphor.

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Anonymous Anonymous Coward (profile) says:

Tell it like it is

OK, if they want it to be property, then the little © isn’t enough. Let them place No Trespassing signs on their works. That way, us little people will understand how they feel, and stay away entirely.

/s…or maybe not

This comment has been deemed insightful by the community.
Scary Devil Monastery (profile) says:

Re: Tell it like it is

"Let them place No Trespassing signs on their works."

Ever since Berne copyright is opt-out, not opt-in.

So essentially there needs to be a law stating you aren’t allowed to walk anywhere unless there is specifically a "Trespassing allowed" sign. Or risk legal consequences.

That’s just how screwed-up copyright is.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Of course, the real issue at play is that many of the most vocal copyright system supporters want to believe that they’re "artists" who are fighting the system and speaking for the oppressed…

Maybe a few of them, but most are middlemen, intent on oppressing the artists for their own profit.

This comment has been deemed insightful by the community.
Anonymous Anonymous Coward (profile) says:

Re: rent seeking

There is a small quibble with that, and it has to do with the arguments around the right of first sale. If I buy a hard cover book, I may resell it, and that is clearly established. If I buy an ebook however, it seems that the publishers treat that more like rent, and the question of the right of first sale is…well questionable, hell, they even take bought items back without permission of the current owner. If I rent that same ebook, it actually is rent, there is no right of first sale, but then what is the difference between renting and buying that ebook?

The maximalists have been arguing for everything to be in their favor so hard that they have really made a mess of the marketplace. But that was their intent in the first place, that is so long as everything went in their favor.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

If something is X then treat it AS X

I’ll consider accepting copyright as property when those pushing for that label accept it being treated as property.

No ‘punishment on accusation’, you claim someone ‘stole’ your property then prove it before any punishment is handed out, and if you can’t then the only person punished is you for making a false accusation.

Along those lines the penalties for violations of the ‘property’ of copyright are scaled back to the same amounts as standard property, so no more tens of thousands in ‘damages’, instead the penalties are more in the tens of dollars range.

People want to argue that copyright is property then great, it’s property, with all that comes with that.

This comment has been deemed insightful by the community.
Crafty Coyote says:

I’ll accept it as property if the consequences of theft are what we saw in those unskippable ads from movies in the 2000s. The police come by your house and arrest you. But they would also need a signed warrant from the judge, and piracy would lead to a criminal trial, which by its very nature favors defendants. And if you were guilty, damages would be capped to the value of the item in question.

tz1 (profile) says:

Right of first sale

There is NOTHING in copyright law that talks about licensing. That is contract law.
But OK, Landlord, your app is leaking so you should be responsible for fixing that and any other defects.
They want to have the best of both sale and rental worlds (also see right to repair), and book (you can’t call it defective if you don’t like the plot) or toaster (which if it burns down your house you can sue).
Can I check out a copy of Windows 10 Pro from my library?

One problem is the semantic confusion. There is no “property” that is purely abstract. Trademarks, patents, or copyright. They are grants of monopoly designed to encourage publicizing inventions (solving the guild and trade secrets) and producing works (which cost lots to produce the first copy, but successive copies are inexpensive).

Politics, and avoiding them (hey, just have SCOTUS say what is right) is the problem. The purpose has been lost in the lobbying and cronyism and the desire for government granted monopoly. We should dump such things into the nearest water like the Boston Tea Party did with the East India Company.

tz1 (profile) says:

Right of first sale

There is NOTHING in copyright law that talks about licensing. That is contract law.
But OK, Landlord, your app is leaking so you should be responsible for fixing that and any other defects.
They want to have the best of both sale and rental worlds (also see right to repair), and book (you can’t call it defective if you don’t like the plot) or toaster (which if it burns down your house you can sue).
Can I check out a copy of Windows 10 Pro from my library?

One problem is the semantic confusion. There is no “property” that is purely abstract. Trademarks, patents, or copyright. They are grants of monopoly designed to encourage publicizing inventions (solving the guild and trade secrets) and producing works (which cost lots to produce the first copy, but successive copies are inexpensive).

Politics, and avoiding them (hey, just have SCOTUS say what is right) is the problem. The purpose has been lost in the lobbying and cronyism and the desire for government granted monopoly. We should dump such things into the nearest water like the Boston Tea Party did with the East India Company.

Scary Devil Monastery (profile) says:

"The purpose has been lost in the lobbying and cronyism and the desire for government granted monopoly. We should dump such things into the nearest water like the Boston Tea Party did with the East India Company."

No purpose was lost whatsoever. The intent of copyright was always to provide the middleman with an entrenched monopoly. No one even brought up "authors and creators" until far, far later when the industry of redundant middlemen needed some rhetoric with which to spice the snake oil they peddled to the US body politic.

And no wonder, given it’s origin as a political-religious tool of censorship, the execution of which gave fiscal wings to that middleman industry in the first place.

Nothing like a government-mandated gatekeeper monopoly to convince a cadre of opportunists to have their market advantage ensconced in law for perpetuity.

Zane (profile) says:

OK, squatter

Of course the term "property" was meant to signify something that is owned as opposed to specifically a dwelling. Like a painting, a book etc. A piece of "property" that is well like a typical copyrighted work. Of course, if you want to use the term Landlord, then what do you refer to the person who is not paying rent, and is there illegally – a squatter?

Mike Masnick (profile) says:

Re: OK, squatter

A piece of "property" that is well like a typical copyrighted work.

No. A piece of property is the "tangible" item. In economic terms, something that is non-rivalrous, and not excludable.

That was true of copyright-covered works in the past, but not today.

if you want to use the term Landlord, then what do you refer to the person who is not paying rent, and is there illegally – a squatter?

Within the context, the idea is only if we’re all agreeing that it’s property (which it’s not), and a "squatter" suggests someone who remains long term, which seems to not fit the analogy at all. You might get away with trespasser, and I think on the legal front, that’s probably about right. Of course, some of us might argue for a right to roam for most fleeting cases then…

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