If one pokes at free speech rights with a sharp analytic and historical stick, it may come as a surprise to many how much free speech rights depend on and are defined by property rights. S My right to deliver a political speech does not mean that I have a right to break into your house and deliver it in your living room. Free speech rights have boundaries, and property rights often decide where these boundaries are. (Some of the harder free speech cases involve cases where property boundaries are blurred, for example, in public forums or on the “public” airwaves). In any case, one does not hear much about the potential conflict between trespass law and free speech, but one does hear concerns about a conflict between intellectual property and free speech. This is the ground that Richard Epstein’s talk on “Liberty versus Property: Understanding the Foundations of Copyright Law,” goes over.
The question is: Is intellectual property (IP) different from physical property, so that we must be concerned about a conflict between free speech and IP in a way we need not be concerned about a conflict between free speech and trespass? Professor Epstein’s answer is, well, intellectual property is different from physical property, but not that different. Both IP and physical property rules are there because they are useful in channeling incentives. One might have conflicts with free speech rights when there are significant legal changes at the boundaries, because you can’t give to some without taking from others, similar to a regulatory takings case. But overall, the institution of IP is the same type of creature as physical property.
To show this, Richard takes us on a long journey through John Locke that has essentially two parts. The first part concerns the nature of the justification for our rights in physical property; the second examines intellectual property. Today, I’ll go through each of these steps and explain them as I add my own commentary.
In talking about physical property, Richard starts by noting that there is no self-evident or a priori justification for it all. At several points in the argument we need to go back to utilitarian arguments, thinking about the kinds of rules and incentives that we need to encourage the creation of new wealth. Another thread in his argument is that we need rules that make sense as a system of conflict resolution.
This latter thread about conflict resolution turns out to be tremendously important. For one thing, historically, it was doubtful that there was anyone looking down on property rights from above and saying: “We need property rights to create incentives.” If we stay tuned in to what we know about the history of property law, it’s the more micro-focus emphasis on conflict resolution that dominates: That is, the perspective of individuals involved in resolving conflicts over actual pieces of property. On a day-to-day basis, authorities were largely concerned with what happens when A snatched an apple out of B’s hand and B clobbers A over the head with a stick. And this thread of conflict resolution turns out to be important in intellectual property, too, so I’ll come back to it further along.
But first I’d like to talk more about physical property, and why Richard is right to set aside idealistic considerations of whether the owners of property “deserve” their right in it. This will strike a lot of people as counterintuitive, as divorcing ethics and justice too far. Nevertheless it is right. It reminds me of an argument of F. A. Hayek, who talks about the same point. He notes that we can’t worry about establishing perfect fairness or individual merit when it comes to making law. First of all, we need a system of rules that rewards results, not intentions. This planet can be a harsh environment for human beings. We need to produce food and shelter, and so we want to reward those who actually produce food and shelter, whether they do so by luck or something else. Second, human life on this planet is inherently “unfair” by a pure egalitarian standard. Some people are born into good families, some into bad, some into rich lands and some into poor. To eradicate this unfairness would require a level of totalitarian control over human life that would put the former Soviet Union to shame. Law is good at giving us rough and ready rules for when A hits B with a club, but it cannot establish perfection.
IP as Conflict Resolution
Now I move on to the discussion of intellectual property. Richard notes that the process of codifying intellectual property is statutory, and is therefore top-down, not bottom up in the same sense as customary law that forms on a frontier (what Italian legal scholar Bruno Leoni argues constitutes the common law). But the result is defensible for similar reasons—because it is needed to make us all better off by putting in place incentives to create. I agree with this.
But notice that the earlier concern about practical conflict resolution has fallen out of the debate. Let’s bring it back in. In thinking for a second about IP and the needs of a system of conflict resolution, we again stumble across a difference between intellectual and physical property. The threat of a breach of the peace that you get when you grab an apple out of somebody’s hand is just not as immediate as when you copy somebody else’s McIntosh software but leave that person with the original copy—especially if you do this over a wire remote from that person in time and space. So the argument about incentives is roughly the same for physical property and IP at the macro level, but the problem of conflict resolution is different at the micro level—a difference not of kind but of degree.
This helps explain why a lot of ordinary people—college students and Napster fans of all stripes—just feel differently about IP than they do about stealing physical property. And the law recognizes this difference, too, in the penalties for copyright. Historically, policing costs have been borne by the copyright owner, not by the publicly funded police and prosecutors brought to bear against more obvious and immediately dangerous breaches of the peace. Penalties for copyright have been mostly civil, with criminal violations more rare.
Now, notice that I said that this difference in the way IP functions as conflict resolution is a difference of degree, not of kind. That’s because there is a danger that IP will ultimately result in breaches of the peace as harmful as people hitting each other over the head with clubs. Things could get nasty, with viruses embedded in MP3 files and endless wars between hackers and coders. So it is important to get back to some kind of consensus on ground rules here.
That’s easier said than done; it’s not likely that a whole lot of ordinary people will suddenly start worrying in the abstract about incentives. One attempt to get people to think about copyright the way they do about theft has been through deterrence by jacking up the penalities for copyright infringement, introducing more criminal penalties, and so on. This is probably a mistake, for two reasons.
First, empirical research on deterrence shows that it has more to do with the frequency of enforcement than the severity of penalties. A law that is enforced only in a few token cases with severe penalties is a much less effective deterrent than a law with a light penalty that is consistently enforced. So I think the direction that folks need to go in is enforcement, not higher penalties.
Second, cranking up the penalties for copyright infringement so one gets college students being tossed into prison for several years is going to strike people as unfair. And it will only further undermine the consensus in favor of copyright.
Solving the Problem of Positivism with Expectations: for IP and Physical Property
Richard shows that ordinary physical property and IP are basically useful manmade creatures. This leads us to a problem that Richard has discussed at length elsewhere. If these rules are made by man, why can’t they be broken and remade by man? That is, if using utilitarian arguments we show that IP is like physical property and vice versa, haven’t we just shown that legislatures, as today’s spokespersons for society, can remake them at will? Wouldn’t this be especially true for IP, which Richard points out has a more obviously top-down component than physical property.
I think not. To explain why not, I’ll attempt a sports analogy. Consider a game of basketball. Halfway through the game the referee or some other authority decides to move the basket a few inches higher, or to the left, or change the application of some other rule to the game. Both the players and fans would likely be furious and baffled. It doesn’t matter to them where the rules came from, or whether or not the rules could originally have been different in some respect. What matters is that their expectations and plans and practice has settled around the rules they were originally given. If there’s going to be a change, there’d better be a damn good reason for it.
For IP or basketball or physical property, the ground rules matter because people’s expectations matter. We count on rules to make our uncertain future as human beings a little less uncertain. Even with top-down statutory rules, what ultimately matters about the rules is the role they play in people’s lives.
So with IP as with physical property or with a game of basketball, we can have a meaningful conversation about fairness when the rules are interpreted differently or changed. Italian legal scholar Bruno Leoni, another big advocate of bottom-up rules, thought that at bottom our sense of what is fair and right stem from expectations.
But here again we stumble across another interesting bit of history that has recently split IP and physical property apart on the surface. Technology has made IP protection increasingly hard to enforce and easy to break, and the practice of routine copying has jumbled up people’s expectations of what is fair and right. Once expectations get off on the wrong foot, it can be dreadfully difficult to get them back on the right track again. Some good examples come out of the former Soviet Union. Shortly after the fall of communism, Russians would reportedly become quite upset when the press criticized the state. They were simply not used to it and thought it was not fair. Once expectations get out of whack for some reason it can be very difficult to get them back into line again. One almost has to start at the beginning all over again and hope for some kind of “constitutional moment.”
This is probably what needs to happen for intellectual property. But it’s going to be hard going, and the name-calling that we have seen in the debate so far will not help.
What is the Public Domain?
Let’s explore one final implication of this emphasis on micro conflict resolution for the issue of the conflict between copyright and liberty. For example, suppose the legislature changes the copyright law, extending the length of already existing copyrights for a period of years. Richard has argued that this is a First Amendment violation, just as the change to the boundaries of physical property law by regulation would constitute a taking. The theory is: You can’t give to some without taking from others. In the case of IP, the possession of “others” is the public domain. Somewhere in his paper, Richard invokes “public trust” law, and notes that the state ought to be reimbursed for intrusions on the public trust. Do we want to treat the public domain as a public trust?
But I think that treating the public domain as a possession of others is a pretty dubious proposition. Richard has argued that, in a Lockean tradition, we don’t want to be arguing that when someone takes a handful of nuts from the commons, that the nuts were prior to the taking “owned” in some sense by everyone. It is much cleaner and causes fewer problems (and I think more historically realistic) to treat the nuts as being owned by no one. One might ask if it doesn’t make a great deal of sense to treat the public domain in copyright the same way—not as information owned by everyone, but as information owned by no one. Treating it as property owned by everyone just doesn’t seem to make for a sensible system of conflict resolution; there are too many potentially competing claims. One counterargument might be that the First Amendment boosts information up into something like property owned by everyone. But I don’t think we want it to be treated like a public trust, administered by the state. If the last survivor of a key battle is hit by a truck on the way to talk to a historian, should the state sue the truck driver for the resulting loss to the public trust? Probably not.
In the end, I don’t think we need to treat the public domain as anything like common property to throw up a red flag when the legislature messes with it. But this is simply because ordinary people’s expectations matter, the way they matter in the basketball example above.
Okay, where’d all this take us:
Physical and intellectual property are both about incentives though they have different origins (as far as we know).
- There are some differences in the way the two systems function as systems of conflict resolution, but those are differences of degree and technology; not differences as to their fundamental nature.
- So it does not make much more sense to speak of a conflict between free speech and IP at a fundamental level than of a conflict between free speech and the law of trespass, if you toss a would-be speaker out of your living room or edit a column in your newspaper.
- But there can be conflicts between IP legislation and the first amendment, just as there can be conflicts between property law or regulation and the takings clause. Once the rules are in place, people should be able to rely on them as a practical matter so fundamental that it becomes normative.
- In practice, our expectations about IP enforcement at the micro level have become divorced from the theory that justifies IP as a system of incentives at the micro level. Those things have to be two sides of the same coin, as they tend to be with physical property, or they will cause conflict rather than resolving it.
This problem desperately needs to be resolved with IP, and the name-calling that we’ve seen so far in the debate won’t resolve it. What we need is a new appreciation of why systems of incentives matter. Perhaps that’s too theoretical for the average downloading college student, but without it we’ll likely face much bigger problems than just the erosion of IP. We might be looking at the erosion of property rights across the board. If some of the college campus rhetoric about globalism, environmentalism, trade, and so on is any guide, that’s just what we are seeing.
S See generally, John O. McGinnis, “The Once and Future Property-Based Vision of the First Amendment,” 63 U. Chi. L. Rev. 49 (1996)(describing the historic origin of free speech rights in property rights); Solveig Singleton, “Reviving a First Amendment Absolutism for the Internet,” 3 Texas Review of Law & Politics 280, 313-315 (1999).