Among the arguments against copyright law is the argument that copyright is not a property right. The “robust history” of describing copyright in terms of property 1See Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993, 1004 (2006); Myths from the Birth of US Copyright. is simply wrong, say proponents of this argument. One line of such arguments claims that property rights are only justified to resolve conflicts over scarce goods. Because expressive works protected by copyright are not scarce — that is, one person’s use of a book, song, or film does not diminish another person’s ability to use that same work — the necessary condition for legitimate property rights is not met.
It is this view of copyright that seems to have informed the recently retracted Republican Study Committee policy brief on copyright law. The brief rejected the characterization of copyright as property right and instead characterized it as a monopoly privilege antithetical to free market principles.
I want to suggest an argument today that counters this conception of copyright. It is, in fact, concerned with scarcity. The error comes from mistaking the actual right at issue — the right to copy (hence, “copy right”) — with the actual right at issue with tangible goods, typically a right to possess.
Property is, at its heart, the set of rules concerning the relationship between individuals and things, and is one of the foundational legal doctrines, along with contract and tort law. Because property is conceptual, it, by definition, is not barred from being applied to intangible goods.
But some have made the argument, explored in more detail below, that property rights are only legitimate when they apply to scarce goods, ie, goods where one person’s use prevents its use by someone else. Property rules originated to resolve conflict over such rivalrous goods, so if a certain good is not rivalrous, then recognizing a property right in it is not justified.
What is Property?
In his 1990 article What is Property?, 213 Harvard Journal of Law & Public Policy 775 (1990). libertarian scholar Boudewijn Bouckaert provides an account of scarcity, saying it both explains and justifies property rights. While the concept of scarcity is discussed by earlier philosophers and legal theorists, the modern “law and economics” view places scarcity front and center as a rationale for these rights.
Scarcity is defined by Bouckaert as arising “when two or more persons consider one good as a means for the satisfaction of their wants and when the use they intend to make of it is incompatible.” But he prefaces this by noting that scarcity likely involves a “dimension beyond mere allocation” — solving allocative scarcity would require a “super-individual authority” to divvy up how and when competing individuals could use a certain good. So, we’re concerned primarily with distributive scarcity, which is unavoidable and leads to three possible outcomes, according to Bouckaert: “(1) permanent conflict–the assignments of scarce means are the result of the use of violence, ruse, and tactical games; (2) resignation–a resource becomes the object of competition, both parties withdraw, and such withdrawal means isolation and a massive drop in world population; (3) rules–assignments of power over scarce resources to individuals, groups, families, the government, and so forth.”
Bouckaert distinguishes between natural scarcity, which occurs prior to any social or political institutions, and artificial scarcity, which is the result of arrangements by such institutions. In the “law and economics” view, the first justifies property rights, but the second requires its own justification.
For purposes of this article, I will assume this argument is valid. But I do want to point out that the argument that property rights require scarcity is a minority view, one that has not escaped its share of criticism. Philosopher David Faraci, for example, has asked Do Property Rights Presuppose Scarcity? and concludes that the argument has thus far been under-motivated. Faraci notes that many dominant theoretical views of property appeal to values beyond the conflict-resolution inherent in the scarcity view of property rights. IP scholar Robert Merges rejects this “historical-essentialist” concept of property outright, in favor of a more “broad and roomy” conception whose “origins do not imply constraints of limits.” Merges sees a “powerful logic” in property, and its “restless capacity” to morph and adapt throughout its history to different arenas provides a robustness that makes as much sense to apply to intangibles as to physical property. 3Robert P. Merges, Justifying Intellectual Property, pp. 4-5 (Harvard University Press 2011).
Though whether or not copyright is considered “property” may seem like a matter of semantics, it does have implications for the proper role and scope of copyright law. If copyright is redefined as being something other than property — a “mere privilege” or an economic monopoly, for example — it is easier to argue that it is inconsistent with free market principles rather than being the mechanism for establishing a functioning market that fosters investment and dissemination of creative and expressive works.
Property in the Copy Right
Property is sometimes defined as including the right “to possess, use, enjoy, and dispose of a thing.” Possession is often considered one of the most basic of rights held by property owners. It is this right that is typically discussed when dealing with scarcity: only one person can possess a good at any given time.
Copyright, however, is not concerned with possession. Indeed, things get pretty metaphysical real fast if you start talking about how one can have possession over the intangible expression of an idea. Copyright instead is concerned with copying, which can be considered a specific form of using the property. 4Public performance and public display could similarly be mentioned here, though I leave them out for readability sake.
Copying, the act, should be distinguished from the copy, which is the material object that includes the expressive work in fixed form. These copies are treated as any other form of personal property. In fact, the US Copyright Act expressly distinguishes between copies and copying and notes that the right to copy is not the same as ownership in the resulting copies. 517 USC § 202, “Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.”
The act of copying an expressive work, like the act of possessing a physical item, is rivalrous. Your copying of an expressive work diminishes my ability to copy an expressive work.
Odds and Ends
Now, in order to support this argument, one would need to include several additional claims.
First, we need to assume that we are dealing with a finite limit on the amount of copying that can occur. Expressive works are, after all, potentially infinitely reproducible — and, when they exist digitally, those copies can be made at near-zero cost.
But I think this focuses on the wrong thing. We could, in theory, reproduce any given work infinitely. But in practice, we don’t. A few weeks ago, Psy’s “Gangnam Style” music video became the most viewed video ever on YouTube, with over 800 million views and counting. Eight hundred million is a big number, but it’s still far less than infinity. Even the Bible itself, one of the most widely printed books for hundreds of years, has been printed an estimated six billion times.
So even given the fact that if we had an infinite amount of storage space and an infinite amount of time, we could infinitely reproduce any given work, I don’t think that is relevant. As a practical matter, we are always dealing with a naturally (and economically) scarce ability to copy an expressive work.
Second, we could assume that productive use of resources is inherent to any property system. This is apparent from the very term “law and economics”, where the law prong is concerned with resolution of conflict over scarce resources but the economics prong deals with creating value. Generally, we’re not driven to conflict merely because we are all Gollums, obsessing over our precious things. We seek them because of the value they can provide in producing wealth. Historically, copying has been one of the primary methods (though certainly not the only method) of extracting value from expressive works.
Finally, a caveat.
By saying that copying is rivalrous, I don’t mean to suggest that this rivalry exists anywhere near a 1:1 relationship. That is, I’m definitely not suggesting that “every download is a lost sale” or anything like that. It is simply an act that can be incompatible between two or more people. This is similar to possession: scarcity in this sense doesn’t imply a requirement that the use of a scarce good by two or more people has to occur at the same time or wholly deprive one of the use of the good. For example, if I use your hammer while you’re asleep, you haven’t “lost” anything. There simply has to be that potential for incompatible uses prior to any application of property rules.
|↑1||See Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993, 1004 (2006); Myths from the Birth of US Copyright.|
|↑2||13 Harvard Journal of Law & Public Policy 775 (1990).|
|↑3||Robert P. Merges, Justifying Intellectual Property, pp. 4-5 (Harvard University Press 2011).|
|↑4||Public performance and public display could similarly be mentioned here, though I leave them out for readability sake.|
|↑5||17 USC § 202, “Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.”|