Property rhetoric and the public domain

Minnesota Law Review

Volumn 94, Issue 3, 2010, Pages 652-705

  Fagundes, David ^a  

^a HARVARD COLLEGE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79251606598     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (357)

1. 545 U. S. 469 (2005).
2. Rush Limbaugh: Liberals Like Stephen Breyer Have Bastardized the Constitution (Free Republic radio transcript Oct. 12, 2005) [hereinafter Limbaugh], available at http://www.freerepublic.com/focus/f-news/1501453/posts (claiming that because of Kelo, "[g]overnment can kick the little guy out of his and her homes and sell those home [sic] to a big developer who's going to pay a higher tax base to the government. Well, that's not what the takings clause was about. It's not what it is about. It's just been bastardized, and it gets bastardized because you have justices on the court who will sit there and impose their personal policy preferences rather than try to get the original intent of the Constitution. ").
3. Ralph Nader, Statement, June 23, 2005, http://ml.greens.org/pipermail/ ctgp-news/2005-June/000507.html ("The U. S. Supreme Court's decision
4. in Kelo v. City of New London mocks common sense, tarnishes constitutional law and is an affront to fundamental fairness.").
5. For a complete list of such state initiatives, see Castle Coalition, Enacted Legislation Since Kelo, http://www.castlecoalition.org/index.php?option= com-content&task=view&id=510 (last visited Dec. 7, 2009).
6. However politically popular they may be, the efficacy of these statutes is questionable.
7. See Ilya Somin, The Limits of Backlash: Assessing the Response to Kelo, 93 MINN. L. REV. 2100, 2103-04 (2009) (finding the majority of reform laws "likely to be ineffective").
8. The idea was to have the local council of Weare, New Hampshire condemn the Justice's property in order to create a development that would feature the "Lost Liberty Hotel", a site that would be devoted to libertarian gatherings. The movement failed.
9. See Jeannie Suk, Taking the Home, 20 LAW & LITERATURE 291, 293-94 (2008).
10. See id. at 295-98 (describing the potential loss of home ownership to eminent domain or to foreclosure as distinctly generative of anxiety).
11. 537 U. S. 186 (2003).
12. Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as amended in scattered sections of 17 U. S. C.) (also known as the "Sonny Bono Copyright Term Extension Act").
13. Eldred, 537 U. S. at 193-94.
14. See Richard A. Epstein, The Dubious Constitutionality of the Copyright Term Extension Act, 36 LOY. L. A. L. REV. 123, 128 (2002) (calling CTEA "a massive giveaway of public domain resources for private use").
15. See Limbaugh, supra note 2.
16. See Marcilynn A. Burke, Much Ado About Nothing:
17. Kelo v. City of New London, Babbit v. Sweet Home, and Other Tales from the Supreme Court, 75 U. CIN. L. REV. 663, 683 (2006) ("Perhaps the only surprising part of the [Kelo] decision was Justice Sandra Day O'Connor's scathing dissent....").
18. 467 U. S. 229 (1984).
19. Kelo v. City of New London, 545 U. S. 469, 480 (2005) (emphasizing the Court's "longstanding policy of deference to legislative judgments in this field").
20. It is a familiar point that the "just compensation" required by the Constitution undercompensates condemned homeowners because the fair market value standard fails to reflect owners' subjective valuations of their homes.
21. See, e.g., RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 183 (1985). Recent scholarship has, however, questioned this assumption, showing that homeowners may in fact be overcompensated by the government in eminent domain proceedings because they receive relocation expenses on top of the value of their home, and because homeowners may be able to receive a premium on top of fair market value through precondemnation negotiations with the government.
22. Nicole Stelle Garnett, The Neglected Political Economy of Eminent Domain, 105 MICH. L. REV. 101, 121-31 (2006).
23. I am not arguing that CTEA really did work a taking actionable under the Just Compensation Clause. Textually, this is not possible because the Clause governs only takings of "private" property, U. S. CONST. amend. V, and as I discuss below in more detail, the public domain is plainly a form of public property. That does not change the fact that Eldred can still be cast as an uncompensated taking of public entitlements, even though it does not give rise to a cause of action under the Fifth Amendment.
24. One could argue that CTEA thus merely delayed, and did not take, the public's acquisition-of-use rights in copyrighted materials. While this descriptive claim is right, it does not mean the government's action is not takings-esque. A law that stated "the acquisition of all future interests in real property will be deferred for twenty years" would undoubtedly be regarded as taking a valuable property right from the owners of those future interests.
25. Cf. Hemphill v. Miss. State Highway Comm'n, 145 So. 2d 455, 463 (Miss. 1962) (holding that state takings of future interests require a just compensation remedy). It is also by no means clear that the public actually will acquire these rights in protected materials upon expiration of the CTEA term extensions. Numerous critics of Eldred pointed out that nothing would stop the content industries from again lobbying successfully for additional term extensions once CTEA's twenty-year add-on terms begin to expire.
26. See, e.g., Eldred v. Reno, 239 F.3d 372, 382 (D. C. Cir. 2001) (Sentelle, J., dissenting) ("[T]here is no apparent substantive distinction between permanent protection and permanently available authority to extend originally limited protection. ").
27. See, e.g., Press Release, Am. Conservative Union, Judicial Activism Strikes Again: Supreme Court Rules Government Can Seize Your Home (June 23, 2005), http://www.conservative.org/pressroom/06232005-un. asp ("Today's Supreme Court ruling is a slap in the face to property owners everywhere.").
28. One might also point out that the most salient difference between these two cases is the nature of the entitlement at issue: Kelo involved tangible property, while Eldred involved intangible resources. This may be a partial explanation for the reaction, but cannot be a complete one. as I discuss at more length below, the intangible character of an entitlement has not prevented owners from effectively leveraging property rhetoric in their favor, so the fact that information rather than land is at issue cannot fully explain why the public failed to react to Eldred as an unjustified deprivation of property. See infra Part I. B.
29. There was ample academic outrage, of course.
30. See generally, e.g., Symposium, Eldred v. Ashcroft: Intellectual Property, Congressional Power, and the Constitution, 36 LOY. L. A. L. REV. 1 (2003) (collecting articles critical of Eldred from academics of all political stripes).
31. There was also some popular reaction to the decision, such as Bill Amend's sarcastic jab at the Court's decision in the cartoon Fox Trot. BILL AMEND, FOXTROTIUS MAXIMUS 144 (2004).
32. U. S. CONST. art. I, § 8, cl. 8.
33. "Patent law" and "copyright law" were, until only a few decades ago, largely thought of as formalist fields of practice that were mainly about fussing with registration applications. After the term "intellectual property lawyer" was coined, however, the profession gained both esteem and adherents.
34. See Mark Lemley, Property, Intellectual Property, and Free Riding, 83 TEX. L. REV. 1031, 1034 & n. 5 (2005).
35. Say it a few times. It's just short of being a three-foot anapest.
36. Cf. id. at 1034 ("'Intellectual property' is an appealing term for a variety of reasons. It is sexy: practitioners in the field will tell you that their stock at cocktail parties went up immeasurably when they began to tell people they 'did intellectual property' rather than that they were 'patent lawyers.'").
37. Henry E. Smith, Intellectual Property as Property: Delineating Entitlements in Information, 116 YALE L. J. 1742, 1744 (2007) ("At the core of controversies over the correct scope of intellectual property lie grave doubts about whether intellectual property is property."). Not all writers are convinced that this is a question worth engaging.
38. See Stephen L. Carter, Does It Matter Whether Intellectual Property Is Property?, 68 CHI. KENT L. REV. 715, 715 (1993) ("Every now and then, the rather discrete and insular world of scholars who care about intellectual property rules turns its collective attention to whether intellectual property is really property at all-or, to put the matter consistently with the vagaries of the field, whether intellectual property (whatever that is) is property (whatever that is) in the same sense that other things are property (whatever that is).");
39. The Patry Copyright Blog, Does It Matter if Copyright Is Property?, http://williampatry.blogspot.com/2006/06/does-it-matter-if-copyright-is.html (June 20, 2006, 09:57 EST).
40. See, e.g., Mark A. Lemley & Philip J. Weiser, Should Property or Liability Rules Govern Information?, 85 TEX. L. REV. 783, 783-84 & 784 n. 4 (2007).
41. See Smith, supra note 24, at 1799-1819.
42. See Frank H. Easterbrook, Intellectual Property Is Still Property, 13 HARV. J. L. & PUB. POL'Y 108, 113-14 (1990).
43. Examples abound. My favorite is Robert M. Cover, Foreword: Nomos and Narrative, 97 HARV. L. REV. 4 (1983).
44. See James Boyd White, Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life, 52 U. CHI. L. REV. 684, 685 (1985) (contrasting rhetorical analysis of law with ancient Judeo-Christian notion of law as authority and with contemporary social scientific view of law as an external system of rules to be manipulated to reach particular substantive ends).
45. See David McGowan, (So) What if It's All Just Rhetoric?, 21 CONST. COMMENT. 861, 861 (2004)
46. (reviewing EUGENE GARBER, FOR THE SAKE OF ARGUMENT: PRACTICAL REASONING, CHARACTER, AND THE ETHICS OF BELIEF (2004)).
47. Id. at 886 ("Maybe we condemn the word 'rhetoric' to divert attention from how well it applies to what we do.").
48. White, supra note 29, at 684
49. (citing Plato, Gorgias 452e, 454b).
50. Id.
51. Id. at 688-89.
52. See David McGowan, Information-Forcing Liability Rules in Copyright Law (Nov. 10, 2009) (unpublished manuscript, on file with author).
53. See DEIRDRE N. MCCLOSKEY, THE RHETORIC OF ECONOMICS 3-4 (2d ed. 1998) (discussing how Judge Posner uses phrases like "allocate", "maximize", "value" and "scarcity" in both a technical sense and "to evoke Scientific power, to claim precision without necessarily using it" to describe the efficiency of the common law in
54. RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 98-99 (1st ed. 1972)). Contemporary behavioral psychology has introduced a variation on the idea of rhetorical framing, showing that how issues are framed affects the heuristics people use to decide on the morality of particular conduct.
55. See Cass R. Sunstein, Moral Heuristics, 28 BEHAV. & BRAIN SCI. 531, 535 (2005). For example, framing a decision as a choice between actively aiding someone's death versus failing to save someone in mortal peril will trigger very different moral instincts, even though they lead to the same result.
56. Id. at 540-41.
57. Cf. GEORGE LAKOFF & MARK JOHNSON, METAPHORS WE LIVE BY 4-5 (2d ed. 2003) (discussing constitutive metaphors);
58. Diane Gurman, Why Lakoff Still Matters: Framing the Debate on Copyright Law and Digital Publishing, FIRST MONDAY, June 1, 2009, http://www.uic.edu/ htbin/cgiwrap/bin/ojs/index.php/fm/article/view/2354/2210 (discussing how rhetorical frames can be used to push public dialogue about copyright in a progressive direction).
59. White, supra note 29, at 701 ("[O]rdinary language... provides a ground for challenge and change, a place to stand from which to reformulate any more specialized language.... Rhetorical analysis invites us to talk about our conceptions of ourselves as individuals and as communities, and to define our values in living rather than conceptual ways.").
60. 547 U. S. 388 (2006).
61. Id. at 390-91.
62. Id. at 391.
63. Transcript of Oral Argument at 6, eBay, 547 U. S. 388 (No. 05-130).
64. Id.
65. Id.
66. Cf. Anupam Chander & Madhavi Sunder, The Romance of the Public Domain, 92 CAL. L. REV. 1331 passim (2004) (invoking the notion of romance in connection with the public domain);
67. Saul Levmore, Two Stories About the Evolution of Property Rights, 31 J. LEGAL STUD. 421, 429-33 (2002) (contrasting "optimistic" private-property stories in the Demsetzian vein with "pessimistic" private-property stories that stress public choice and interest group problems).
68. E.g., Easterbrook, supra note 27, at 118 ("[W]e should treat intellectual and physical property identically in the law.");
69. I. Trotter Hardy, Not So Different: Tangible, Intangible, Digital, and Analog Works and Their Comparison for Copyright Purposes, 26 U. DAYTON L. REV. 211, 213 (2001) ("For the purposes of intellectual property rules and regimes, there are no differences between intangible and tangible property.");
70. Richard A. Epstein, The Structural Unity of Real and Intellectual Property, PROGRESS ON POINT 13.24 (Progress & Freedom Foundation, Aug. 2006), available at http://www.pff.org/issues-pubs/pops/pop13.24RAE-9-26.pdf.
71. See Brief of Various Law & Economics Professors as Amici Curiae Supporting Respondent, eBay, 547 U. S. 388 (No. 05-130) (supporting strong protection of property rights).
72. See Peter S. Menell, The Property Rights Movement's Embrace of Intellectual Property: True Love or Doomed Relationship?, 34 ECOLOGY L. Q. 713, 717-19 (observing the essential discontinuities between the PRM's traditional constituency and the property rights in dispute in eBay).
73. Yuki Noguchi & Charles Lane, High Court Considers EBay Case on Patent, WASH. POST, Mar. 30, 2006, at D1.
74. Id.
75. See eBay, 547 U. S. at 396-97 (Kennedy, J., concurring) (stressing that the practical effect of the Court's holding will be to mitigate the ability of patent acquirers to hold up purported infringers' inventions in exchange for exorbitant settlements);
76. Eric Wesenberg & Peter O'Rourke, The Toll on the Troll: The Implications of eBay v. MercExchange, LAW. COM, May 22, 2006, http://www.law.com/jsp/article.jsp?id=1147943132930 (discussing how patent trolls operate and using the eBay case as an example).
77. Intel Corp. v. Hamidi, 71 P.3d 296, 299-301 (Cal. 2003) (rejecting trespass to chattels claim based on defendant's sending unauthorized e-mails to plaintiff 's servers).
78. eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058, 1069-70 (N. D. Cal. 2000) (holding that an action for trespass to chattels based on defendant's sending unauthorized information-gathering programs to plaintiff 's website had a reasonable likelihood of success, for the purposes of granting a preliminary injunction).
79. See id. (assessing plaintiff's trespass to chattels claim, but noting that it is unusual as a theory of liability);
80. Hamidi, 71 P.3d at 302-03 (discussing the development of the trespass to chattels claim and its elements).
81. Compare Hamidi, 71 P.3d at 299-301 (denying cybertrespass claim)
82. with eBay, 100 F. Supp. 2d at 1070 (allowing cybertrespass claim)
83. and Sotelo v. Direct Revenue, LLC, 384 F. Supp. 2d 1219, 1229-33 (N. D. Ill. 2005) (allowing contributory trespass to chattels claim based on sending unwanted advertisements to plaintiff's computer).
84. See Richard A. Epstein, Cybertrespass, 70 U. CHI. L. REV. 73, 76 (2003) ("[T]he various equipment and facilities that make up the internet are not... real property. Rather, they are a new form of chattel, which are presumptively governed by the law of trespass to chattels.");
85. Richard Warner, Border Disputes: Trespass to Chattels on the Internet, 47 VILL. L. REV. 117, 120 (2002) (analogizing real and intellectual property and arguing that trespass to chattels is an appropriate cause of action).
86. Property romance imbues debates about patent legislation as well. Those opposed to laws that would enable third world countries to acquire patented medicines via compulsory licenses have framed their arguments in terms of being for or against property generally.
87. Ronald A. Cass, Patent Remedy, WALL ST. J., Aug. 28, 2007, http://online.wsj.com/article/SB118824874547610202.html (stating that those who endorse compulsory licenses "oppose protection of all property rights");
88. see also Cynthia M. Ho, Unveiling Competing Patent Perspectives, 46 HOUS. L. REV. (forthcoming 2010), available at http://ssrn. com/abstract=1461515 (discussing rhetorical invocations of property in debates over global pharmaceutical sales).
89. Consider, for example, Motion Picture Association of America (MPAA) President Jack Valenti's famous "Boston Strangler" testimony: "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." Home Recording of Copyrighted Works: Hearing on H. R. 4783, H. R. 4794, H. R. 4808, H. R. 5250, H. R. 5488, and H. R. 5705 Before the Subcomm. on Courts, Civil Liberties and the Admin. of Justice of the H. Comm. on the Judiciary, 97th Cong. 8 (1982). Even more amusing than Valenti's overwrought metaphor is the fact that it turned out to be so utterly mistaken. The advent of the videotape medium actually turned out to diversify and expand the market for movies and has been an enormously lucrative development for the film industry.
90. See Giovanna Fessenden, Peer-to-Peer Technology: Analysis of Contributory Infringement and Fair Use, 42 IDEA 391, 392-93 (2002).
91. Pub. L. No. 105-298, §§ 101-106, 112 Stat. 2827, 2827-29 (1998) (codified as amended in scattered sections of 17 U. S. C.).
92. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 17 U. S. C.).
93. See, e.g., 144 CONG. REC. H10, 620 (daily ed. Oct. 12, 1998) (statement of Rep. Jackson Lee) ("[The DMCA] demonstrates our commitment to protecting the personal rights and property of American citizens.");
94. CONG. REC. S12, 378 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch) ("In my view, property is property whether it's dirt or intangible.").
95. Edmund Sanders & Jube Shiver, Jr., Digital TV Copyright Concerns Tentatively Resolved by Group, L. A. TIMES, Apr. 26, 2002, at C5.
96. WIPO Copyright Treaties Implementation Act; and Online Copyright Liability Limitation Act: Hearing on H. R. 2281 and H. R. 2280 Before the Subcomm. on Courts and Intellectual Property of the H. Comm. on the Judiciary, 105th Cong. 49 (1997) (prepared testimony of Marybeth Peters, Register of Copyrights) (speaking on the need for the DMCA).
97. It has long been accepted in U. S. law that the copyright owner has the right to control access to his work.... The bill would continue this basic premise, allowing the copyright owner to keep a work under lock and key and to show it to others selectively. Section 1201 has therefore been analogized to... a law against breaking and entering. Under existing law, it is not permissible to break into a locked room in order to make fair use of a manuscript kept inside.
98. Id.
99. Id. at 199 (statement of Johnny Cash).
100. In a 2005 interview, Bill Gates was asked if he believed that intellectual property needed to be reformed. Gates answered that "there's more that believe in intellectual property today than ever. There are fewer communists in the world today than there were. There are some new modern-day sort of communists who want to get rid of the incentive for musicians and moviemakers and software makers under various guises."
101. Michael Kanellos, Gates Taking a Seat in Your Den, CNET NEWS. COM, Jan. 5, 2005, http://news.cnet.com/Gates-taking-a-seat-in-your-den/2008-1041-3- 5514121.html.
102. See Patricia Loughlan, 'You Wouldn't Steal a Car': Intellectual Property and the Language of Theft, 29 EUR. INTELL. PROP. REV. 401, 403 (2007) ("The use of the term 'pirate' is clearly metaphorical and not even the most naïve of participants in the discourse of intellectual property could or would take it literally."). Lawrence Lessig has also pointed out that the content industries most likely to invoke the notion of "piracy" to shame would-be users have themselves often taken liberally from the public domain and from other artists. For instance, Disney's early iteration of the Mickey Mouse character, Steamboat Willie, was a very close imitation of Buster Keaton's earlier audiovisual work
103. Steamboat Bill, Jr. LAWRENCE LESSIG, FREE CULTURE 21-25 (2004).
104. Susan Cheever, Just Google "Thou Shalt Not Steal", NEWSDAY, May 31, 2009, http://www.newsday.com/columnists/susan-cheever/just-google-thou- shalt-not-steal-1.531984. Harry Potter creator J. K. Rowling's comments during the infringement trial of a defendant who created an online guide to Rowling's work were less melodramatic but still relied heavily on both the moral force of possession and property romance. "Are we or are we not the owners of our own work?" she asked during the trial.
105. John A. Sellers, Rowling and RDR Meet in Court, PUBLISHERS WKLY., Apr. 17, 2008, http://www.publishersweekly.com/article/CA6552416.html. On the witness stand, Rowling compared the "theft of her words to the removal of all the plums from a cake she might have baked."
106. Id.
107. Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182, 183 (S. D. N. Y. 1991) (quoting Exodus 20:15).
108. To take just one data point, all three of the authors of the brief associated with the PRM in eBay tend to prefer strong protection of IP owners' rights in their scholarly work.
109. See F. Scott Kieff, Property Rights and Property Rules for Commercializing Inventions, 85 MINN. L. REV. 697, 703-04 (2001);
110. R. Polk Wagner, Information Wants to Be Free: Intellectual Property and the Mythologies of Control, 103 COLUM. L. REV. 995, 997 (2003);
111. Richard A. Epstein, Respect Bayer's Patent: Cheap Cipro Now Could Cost Us Dearly in the Long Run, WALL ST. J., Oct. 25, 2001, http://www.opinionjournal. com/extra/?id=95001372.
112. But cf. Chander & Sunder, supra note 45 (critiquing the public domain from a distributional perspective).
113. See, e.g., Freedom For IP.org, Thomas Jefferson on Why Copyrights and Patents Are Not Property, http://freedomforip.org/2007/10/31/thomas-jefferson- on-why-copyrights-and-patents-are-not-property/ (Oct. 31, 2007).
114. See Wagner, supra note 69, at 999 n. 14.
115. Compare LESSIG, supra note 66, at 172 ("The issue is therefore not simply whether copyright is property. Of course copyright is a kind of 'property', and of course, as with any property, the state ought to protect it.")
116. with LAWRENCE LESSIG, THE FUTURE OF IDEAS: THE FATE OF THE COMMONS IN A CONNECTED WORLD 187 (2001) ("[R]eal property doesn't map directly onto intellectual property.... [I]ntellectual property is a balanced form of property protection. I don't have the right to fair use of your car; I do have the right to fair use of your book.").
117. See also Bill D. Herman, Breaking and Entering My Own Computer: The Contest of Copyright Metaphors, 13 COMM. L. & POL'Y 231, 252 (2008) (observing that "free culture advocates are already anxious to unsettle the metaphor of property" as a way of describing intellectual property).
118. But see Michael A. Carrier, The Propertization of Copyright, in 1 INTELLECTUAL PROPERTY AND INFORMATION WEALTH: ISSUES AND PRACTICES IN THE DIGITAL AGE 345, 350-56 (Peter K. Yu ed., 2007) (arguing that applying property ideas to copyright can limit rather than expand owners' rights). Other writers resist the equation of IP and property for a different reason. They argue that IP is a mere "privilege" that should not be equated with real and personal property because the latter categories have a longstanding, natural-rights character that is not shared by modern entitlements that are creatures of statute.
119. See, e.g., Tom W. Bell, Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works, 69 U. CIN. L. REV. 741, 763-64 (2001) ("[B]y invoking government power a copyright owner can impose prior restraint, fines, imprisonment, and confiscation on those engaged in peaceful expression and the quiet enjoyment of physical property. By thus gagging our voices, tying our hands, and demolishing our presses, copyright law would violate the very rights that Locke defended.").
120. Cf. Carol M. Rose, Canons of Property Talk, or, Blackstone's Anxiety, 108 YALE L. J. 601, 605-06 (1998) (discussing anxiety in popular conceptions of property).
121. E.g., Olufunmilayo B. Arewa, The Freedom to Copy: Copyright, Creation, and Context, 41 U. C. DAVIS L. REV. 477, 504 (2007) (discussing the tendency of propertization narratives of intellectual property to diminish authorship based on creative appropriation);
122. Michael A. Carrier, Cabining Intellectual Property Through a Property Paradigm, 54 DUKE L. J. 1, 5 (2004) (lamenting the "propertization" of IP as an "irreversible" trend that "sinks its tentacles further into public and corporate consciousness (as well as the IP laws) with each passing day");
123. Pamela Samuelson, Information as Property: Do Ruckelshaus and Carpenter Signal a Changing Direction in Intellectual Property Law?, 38 CATH. U. L. REV. 365, 398 (1989) (expressing concern in the patent setting about the development of a "more proprietarian and antidissemination attitude toward information than that which the law has previously displayed");
124. Mark Lemley, Romantic Authorship and the Rhetoric of Property, 75 TEX. L. REV. 873, 902 (1997)
125. (reviewing James Boyle, Shamans, Software, and SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY (1996)) (observing that the public character of information goods "seems to suggest that propertization is a uniquely bad idea, precisely because the consumption of that good is 'nonrivalrous'").
126. James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 LAW & CONTEMP. PROBS. 33, 37-40 (2003) (describing the increasing trend toward creating private rights in information as a "second enclosure movement").
127. E.g., Mark A. Lemley, Place and Cyberspace, 91 CAL. L. REV. 521, 527 (2003).
128. Id. at 523.
129. Id. at 527-28.
130. Id. at 523.
131. See Dan Hunter, Cyberspace as Place and the Tragedy of the Digital Anticommons, 91 CAL. L. REV. 439, 452 (2003) ("[J]udges, legislators, practitioners, and lay people treat cyberspace as if it were a physical place. Examining how people discuss their online interactions, we find a vast amount of evidence that people think about online communications and transactions as occurring in some place. This place may be inchoate and virtual, but no less real in our minds.").
132. See, e.g., Hunter, supra note 80, at 483-84 (criticizing the Bidder's Edge court for using trespass to chattels as a theory to hold liable the senders of unauthorized bots to an auction website);
133. Lemley, supra note 76, at 528-33 (critiquing judicial reliance on physical property rules like trespass in regulating information).
134. But see David McGowan, The Trespass Trouble and the Metaphor Muddle, 1 J. L. ECON. & POL'Y 109 (2005) (reviewing opinions in cybertrespass cases and concluding that there is no evidence that analogizing cyberspace to real space will lead to flawed judicial decisionmaking).
135. See Edward Lee, The Public's Domain: The Evolution of Legal Restraints on the Government's Power to Control Public Access Through Secrecy or Intellectual Property, 55 HASTINGS L. J. 91, 151 n. 306 (2003) ("The ['free as the air to common use'] analogy... conveys the importance of the public domain to sustain democratic living: just as air is essential for existence, so too is the public domain. The former sustains our physical needs; the latter, our mental and intellectual needs. People could not breathe without air, nor think freely without information that is available to all. The analogy also illuminates the relationship between the public domain and the free flow of information. Information in the public domain is meant to spread like the atmosphere, to flow freely for all to enjoy. Finally, the analogy suggests the strength that courts attributed to the constitutional restraint against government incursions of the public domain. For government to deplete the public domain or prevent the public's access to it would be akin to the government attempting to take away a person's ability to breathe.").
136. Hunter, supra note 80, at 443-44 (arguing that approaching IP from a property perspective causes judges and policymakers to engage in "suboptimal and wasteful uses because the holders of the exclusion rights block the best use of the resource");
137. cf. Glynn S. Lunney, Jr., Trademark Monopolies, 48 EMORY L. J. 367, 419 (1999) (noting that the trademark "has become its owner's property not merely in a formal and limited sense, but in an ordinary and increasingly absolute sense", which results in the mark's being used "in circumstances entirely divorced from, and sometimes actually in conflict with, [the] mark's informational role").
138. Niva Elkin-Koren, What Contracts Cannot Do: The Limits of Private Ordering in Facilitating a Creative Commons, 74 FORDHAM L. REV. 375, 378 (2005). This concern echoes Margaret Radin's articulation of the problems attendant with treating certain objects, such as babies and organs, as goods in trade. Radin argues that "commodifying" these things-treating them as equivalent to other salable goods like chattels or land-robs them of their essentially human qualities that transcend commercial status.
139. Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1885-86 (1987) ("[T]o see the rhetoric of the market... as the sole rhetoric of human affairs is to foster an inferior conception of human flourishing.").
140. Radin, supra note 84, at 1870 ("[A] world in which human interactions are conceived of as market trades is different from one in which they are not. Rhetoric is not just shaped by, but shapes, reality.").
141. See, e.g., YOCHAI BENKLER, THE WEALTH OF NETWORKS 4-6 (2006) (discussing Wikipedia as an example of nonmarket production).
142. Lawrence Lessig, Re-crafting a Public Domain, 18 YALE J. L. & HUMAN. 56, 79 (2006) ("[T]he concern is that the use of licenses to craft freedom may in turn affect the meaning of that freedom.... The focus on licenses may thus make that community less likely to engage in property-less creativity.").
143. To some extent, property anxiety offers counter-rhetoric that operates within the romantic property paradigm. Most familiar is the notion of the "information commons" that seeks to emphasize the extent to which many information resources remain accessible to the public. as I explain later, while building on our understanding of physical property to understand intellectual property is an appealing project, the term "information commons" is misleading because it suggests a form of limited, shared ownership rather than unregulated public access.
144. See infra note 146.
145. See supra Part I. A.
146. Cf. Patricia Loughlan, Pirates, Parasites, Reapers, Sowers, Fruits, Foxes... The Metaphors of Intellectual Property, 28 SYDNEY L. REV. 211, 212 (2006) (comparing overtly descriptive metaphors with constitutive metaphors that more subtly express one thing in terms of another).
147. Berkey v. Third Ave. Ry. Co., 155 N. E. 58, 61 (N. Y. 1926). Cardozo's observation itself uses liberation and slavery as a constitutive metaphor for vivifying its warning about using metaphor in legal reasoning.
148. Id.
149. See Boyle, supra note 75, at 41-42 (2003) (arguing that the distinguishing features of information as property are nonrivalrousness and nonexcludability).
150. See Herman, supra note 72, at 245 (arguing that "if copyright is a real property right, [an owner] gets near total control over how [his/her works of authorship are] used");
151. Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L. J. 283, 286 (1996) (expressing concern that as cultural expression increasingly becomes regarded as a commodity of trade, the result will be "broad proprietary rights [in information] that extend to every conceivable valued use").
152. Morris R. Cohen, Property and Sovereignty, 13 CORNELL L. Q. 8, 13 (1927);
153. A. M. Honoré, Ownership, in OXFORD ESSAYS IN JURISPRUDENCE 107, 128-30 (A. G. Guest ed., 1961) (emphasizing that ownership describes relations between persons and other persons, not between persons and objects of ownership).
154. See BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 97-100, 113-67 (1977);
155. Thomas C. Grey, The Disintegration of Property, in XXII NOMOS: PROPERTY 69 (J. Roland Pennock & John W. Chapman eds., 1980) ("In the
156. See Grey, supra note 95, at 69 ("Most people, including most specialists in their unprofessional moments, conceive of property as things owned by persons. To own property is to have exclusive control of something-to be able to use it as one wishes, to sell it, give it away, leave it idle, or destroy it. Legal restraints on the free use of one's property are conceived as departures from an ideal conception of full ownership. ").
157. See Margaret J. Radin, Property and Personhood, 34 STAN. L. REV. 957, 959 (1982).
158. E.g., Kristen A. Carpenter, A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Nonowners, 52 UCLA L. REV. 1061, 1085 (2005) (using this term).
159. 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 2 (photo. reprint 1979) (1765-69).
160. See, e.g., Robert P. Burns, Blackstone's Theory of the "Absolute" Rights of Property, 54 U. CIN. L. REV. 67, 85 (1985) ("Although private property is said to be an absolute right, the protection of which is a primary aim of government, absolute rights are largely sacrificed for the blessings of civil society.");
161. Richard A. Epstein, Intellectual Property: Old Boundaries and New Frontiers, 76 IND. L. J. 803, 805 (2001) (calling Blackstone's "despotic dominion" phrasing an "injudicious overgeneralization").
162. See Milton C. Regan Jr., Spouses and Strangers: Divorce Obligations and Property Rhetoric, 82 GEO. L. J. 2303, 2338-39 (1994) ("[P]roperty rhetoric is comprised of diverse strands that co-exist in some tension, rather than forming a unified and harmonious whole. Nonetheless, certain strands have had particularly powerful influence on the cultural imagination, and together constitute what we might describe as the mythology of property."). The best anecdotal illustration I've seen of this point is the stridently proowner version of Woody Guthrie's populist song "This Land Is Your Land" that is (apparently) popular among schoolchildren: "This land is my land/And it ain't your land/I got a shotgun/And you don't got one/If you don't get off/I'll blow your head off/This land is private property." This song appeared in the 1992 film Bob Roberts, and came to my attention when it was quoted in
163. Joan Williams, The Rhetoric of Property, 83 IOWA L. REV. 277, 280 (1998).
164. Cf. DOROTHY ROSS, THE ORIGINS OF AMERICAN SOCIAL SCIENCE, at xiii (1991) (observing the American tendency to embrace explanations that look to "the classical ideology of liberal individualism" rather than looking to material causes).
165. See Williams, supra note 101, at 284-89 (pointing out that while lawyers pay lip service to resisting the "absolutism" that characterizes the popular view of ownership, this approach to thinking about property still dominates academic writing on the subject).
166. RICHARD PIPES, PROPERTY AND FREEDOM, at xv (1999).
167. See A. R. Barnes & Co. v. Chi. Typographical Union No. 16, 83 N. E. 940, 944-45 (Ill. 1908) (upholding injunction against striking workers on the theory that business owners had a property right to preclude protests).
168. But cf. PruneYard Shopping Ctr. v. Robins, 447 U. S. 74, 88 (1980) (upholding the California Supreme Court's construction of the state constitution to require owners of private shopping centers to allow certain kinds of speech on the premises).
169. See Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U. S. 439, 458 (1988) (holding that the federal government's title to property trumps Native American interests in holding religious rites on the same land).
170. See generally Thomas W. Merrill & Henry E. Smith, The Morality of Property, 48 WM. & MARY L. REV. 1849 (2007).
171. See, e.g., JOSEPH WILLIAM SINGER, ENTITLEMENT: THE PARADOXES OF PROPERTY 95-139 (2000) (discussing property as a system of social relations that accounts for the rights of owners as well as the interests of nonowners);
172. cf. Stephen R. Munzer, Property as Social Relations, in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY 36, 36-37 (Stephen R. Munzer ed. 2001) (surveying the work of writers who conceive of property as a system of social relations rather than solely as ownership and exclusion).
173. Nor, in context, does it accurately reflect Blackstone's own ideas. In fact, Blackstone devoted the 518 pages of his treatise following the hoary "despotic dominion" phrasing to qualifying that definition.
174. See Williams, supra note 101, at 281.
175. See Dean Lueck, The Rule of First Possession and the Design of the Law, 38 J. L. & ECON. 393, 422 (1995).
176. J. INST. 2. 1 & 2.2;
177. see William D. Araiza, Democracy, Distrust, and the Public Trust: Process-Based Constitutional Theory, the Public Trust Doctrine, and the Search for a Substantive Environmental Value, 45 UCLA L. REV. 385, 395 (1997) (citing Justinian's Code as the forerunner of public trust doctrine).
178. MARC BLOCH, FEUDAL SOCIETY 113-16 (L. A. Manyon trans., University of Chicago Press 1961);
179. see also Williams, supra note 101, at 290-91 (discussing the variety of social obligations and entitlements with respect to land in the Middle Ages).
180. See, e.g., Felix S. Cohen, Dialogue on Private Property, 9 RUTGERS L. REV. 357, 361 (1954).
181. This is not meant to be an exhaustive description of theories of property that may fall within the social discourse. I seek only to identify the strains that are particularly relevant to this discussion.
182. See Munzer, supra note 108, at 38-44 (cataloguing eight principles that reflect the core tenets of the view of property as a system of social relations).
183. 277 A.2d 369 (N. J. 1971).
184. Id. at 372 ("Property rights serve human values. They are recognized to that end, and are limited by it. Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises.").
185. See generally Kristen Carpenter et al., In Defense of Property, 118 YALE L. J. 1022, 1067-77 (2009) (discussing stewardship).
186. See, e.g., National Historic Preservation Act, 16 U. S. C. § 470 (2006) (seeking to maintain historic properties by limiting development that would adversely affect them);
187. see also Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471, 485-89 (1970).
188. See Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. 347, 354-59 (1967) (arguing that conversion of public or common land to private property is almost always normatively attractive);
189. cf. Richard A. Epstein, What Light If Any Does the Google Print Dispute Shed on Intellectual Property Law?, 7 COLUM. SCI. & TECH. L. REV. 1, 9-11 (2006) (conceding only "a small, and shrinking place, for some fair use defense" in copyright law). Recently proposed IP legislation also exhibits this failure to recognize the centrality of public as well as private forms of property. The Prioritizing Resources and Organization for Intellectual Property Act of 2008 is known by the salubrious acronym "The PRO-IP Act." This falsely makes the legislation sound as though it were designed to protect all intellectual property, when it actually represents a strengthening of only private rights in information via stronger penalties for and enhanced enforcement of infringement.
190. See PRO-IP Act of 2008, H. R. 4279, 110th Cong. (2d Sess. 2008).
191. See Eric T. Freyfogle, Private Property: Correcting the Half-Truths, PLAN. & ENVTL. L., Dec. 10, 2007, at 3, 7 (observing the public/private character of property entitlements).
192. See generally Carol M. Rose, The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems, 83 MINN. L. REV. 129 (1998) (discussing limited common property regimes).
193. See generally Charles A. Reich, The New Property, 73 YALE L. J. 733 (1964) (articulating a broad vision of property that would extend to intangibles like labor or state entitlements beyond real property and chattels).
194. See Goldberg v. Kelly, 397 U. S. 254 (1970).
195. See James Salzman & J. B. Ruhl, Currencies and the Commodification of Environmental Law, 53 STAN. L. REV. 607, 614-16 (2000) (analyzing the role of currency selection in environmental trading markets).
196. See Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L. J. 1533, 1535-39 (1993).
197. See Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1709, 1714-15 (1993).
198. See Demsetz, supra note 120, at 354-59.
199. See Carol M. Rose, Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory, 2 YALE J. L. & HUMAN. 37, 51 (1990) (observing that a property system itself is a public good).
200. Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 756 (1986) (arguing that roads and watercourses function better as public rather than private resources in order to enable travel and commerce).
201. Id. at 775-80 (discussing the socializing effects of property);
202. cf. Eduardo M. Peñalver, Property as Entrance, 91 VA. L. REV. 1889, 1911-12 (2005) (discussing the extent to which acquisition of property enables and reflects humans' inherent tendency toward sociability).
203. Cf. Carol M. Rose, Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age, 66 LAW & CONTEMP. PROBS. 89, 108-09 (2003) (discussing res divini juris, a Roman category of property that included sacred sites that were considered public in order to reflect their common importance to all citizens).
204. See generally HERNANDO de SOTO, THE MYSTERY OF CAPITAL: WHY CAPITALISM TRIUMPHS IN THE WEST AND FAILS EVERYWHERE ELSE (2000) (suggesting that capitalism's failure in developing countries could be reversed by investing the poor with property rights in their material possessions).
205. See AMARTYA SEN, RATIONALITY AND FREEDOM 501-30 (2002) (discussing the capability of market-based property systems to enhance freedom by creating more individual autonomy).
206. See UNIF. STATUTORY RULE AGAINST PERPETUITIES (1990), available at http://www.law.upenn.edu/bll/ulc/fnact99/1990s/usrap90.htm (invalidating interests that vest later than twenty-one years after some life in being from the time of their creation).
207. The Rule dates to The Duke of Norfolk's Case, (1681) 22 Eng. Rep. 931 (Ch.).
208. Both public and private law trace their development to medieval England. In William Aldred's Case, for example, the plaintiff complained that his neighbor's pigsty caused unhealthy odors such that Aldred could not come and go without being subjected to continuous annoyance. Aldred's Case, (1610) 77 Eng. Rep. 816 (K. B.).
209. Aldred prevailed. Id.
210. The rule that covenants are enforceable against subsequent owners only under certain conditions also has its origins in the common law of the Middle Ages.
211. See Spencer's Case, (1582) 77 Eng. Rep. 72 (K. B.).
212. See Carrier, supra note 74, at 54-80 (compiling a similar compendium of restrictions on property owners' rights).
213. See J. E. PENNER, THE IDEA OF PROPERTY IN LAW 71 (1997) ("[T]he law of property is driven by an analysis which takes the perspective of exclusion, rather than one which elaborates a right to use.");
214. Thomas W. Merrill, Property and the Right to Exclude, 77 NEB. L. REV. 730, 730 (1998) ("[T]he right to exclude others is more than just 'one of the most essential' constituents of property-it is the sine qua non. Give someone the right to exclude others from a valued resource... and you give them property. Deny someone the exclusion right and they do not have property.").
215. Patent Act of 1790, ch. 7, 1 Stat. 109 (fourteen-year term);
216. Copyright Act of 1790, ch. 15, 1 Stat. 124 (fourteen-year term plus possible additional fourteen-year term upon application).
217. Patent Act of 1790, ch. 7;
218. Copyright Act of 1790, ch. 15.
219. U. S. CONST., art. I, § 8, cl. 8.
220. Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 511 (1917) ("[T]his court has consistently held that the primary purpose of our patent laws is not the creation of private fortunes for the owners of patents but is 'to promote the progress of science and useful arts.'").
221. Despite this, the public domain has emerged as a subject of attention in legal scholarship only quite recently. Jessica Litman's The Public Domain, 39 EMORY L. J. 965 (1990), is probably the earliest contemporary example.
222. Cf. Brett M. Frischmann, Evaluating the Demsetzian Trend in Copyright Law, 3 REV. L. & ECON. 649, 653 (2007) (stating that IP regimes create "semicommons-a complex mix of private property rights and commons"). We see examples of this in the physical world as well. For example, many national parks include churches, which cannot be owned by the government for Establishment Clause reasons. Title to these churches is held by their respective religions, though the surrounding land (and access to the churches themselves) remains owned by the federal government. Similarly, the federal government has ceded some degree of ownership and control over traditional Native American sacred sites to the tribe members for whom those sites have particular significance. Access to each of these religious sites is the product of agreements between the government and the churches.
223. See generally IN THE LIGHT OF REVERENCE (PBS Film Aug. 14, 2001).
224. 17 U. S. C. § 107 (2006). The government also condemns easements across private property in order to construct public roads, creating a different kind of public/private hybrid form of property. Some scholars have suggested that fair use of copyrighted works (and possibly also the research defense to patent infringement) are much like public use easements over otherwise privately owned resources.
225. Keith Aoki, Neocolonialism, Anticommons Property, and Biopiracy in the (Not-So-Brave) New World Order of International Intellectual Property Protection, 6 IND. J. GLOBAL LEGAL STUD. 11, 41 (1998) (comparing fair use to a public easement);
226. Timothy J. Brennan, Copyright, Property, and the Right to Deny, 68 CHI. KENT L. REV. 675, 712-13 (1993) (same).
227. I want to stress that these examples-like the public domain itself-are instances of public property. The frequent use of the term "information commons" to refer to the public domain is somewhat misleading, because commons were subject to limited property rights.
228. See Rose, supra note 129, at 740. Village greens in early modern England, for example, were subject to limited exclusion rights (villagers could enter but outsiders could not) and limited use rights (some greens could be used exclusively for grazing, others only for growing crops).
229. Cf. id. The public domain is thus not really a "commons", but public property: a largely unregulated space to which all are welcome, subject to other legal restraints.
230. See Rose, supra note 131, at 93-105 (contrasting Roman property law categories res communes with res publicae).
231. See Rose, supra note 129, at 723 (observing the "service to commerce" generated by inherently public property, and explaining that "here, the commons was not tragic, but comedic, in the classical sense of a story with a happy outcome"). Admittedly, there is much debate over the efficiency of some public resources.
232. See id. at 715-16. The English village green and the related enclosure movement provided the central metaphor for one of the most famous critiques of public and common property, The Tragedy of the Commons. Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1242 (1968).
233. See Rose, supra note 131, at 102.
234. See id. at 104.
235. See id. at 102.
236. See Julie E. Cohen, Copyright and the Perfect Curve, 53 VAND. L. REV. 1799, 1809 (2000) (observing that it is difficult to predict which creative work will advance progress, which militates in favor of time-limited exclusive rights).
237. Cf. Litman, supra note 143, at 966 ("[T]he very act of authorship in any medium is more akin to translation and recombination than it is to creating Aphrodite from the foam of the sea.") (emphasis omitted);
238. SPIDER ROBINSON, MELANCHOLY ELEPHANTS 16 (1985) ("Artists have been deluding themselves for centuries with the notion that they create. In fact they do nothing of the sort."). In light of the content of this footnote, I really should note that I found the Robinson quotation not in reading his work, but because it is the epigram for the Litman piece cited just beforehand.
239. Jessica Litman, War Stories, 20 CARDOZO ARTS & ENT. L. J. 337, 337 (2002) ("The copyright statute doesn't give copyright owners the exclusive right to use their works for limited times, or the exclusive right to exploit their works commercially for limited times. Instead, it gives copyright owners the exclusive rights to reproduce, adapt, distribute to the public and publicly perform or display their works, subject to a host of statutory exceptions.").
240. See Frischmann, supra note 144, at 673 (arguing that the "leaks" that characterize copyright owners' entitlements are critical to maintaining allocative efficiency);
241. Lemley, supra note 22, at 1058 (arguing that total control for IP owners would undermine the efficiency of the copyright and patent systems).
242. See Lemley, supra note 22, at 1072-73.
243. See id. at 1037.
244. See id. at 1072.
245. See Gregory S. Alexander & Eduardo M. Peñalver, Properties of Community, 10 THEORETICAL INQUIRIES L. 127, 142-43 (2009) (stating that society has an interest in recognizing the obligations of owners and the state to respect and facilitate the flourishing of others).
246. See, e.g., Rebecca Tushnet, Copy This Essay: How Fair use Doctrine Harms Free Speech and How Copying Serves It, 114 YALE L. J. 535, 572 (2004) ("[C]opyright law recognizes that selection and arrangement can be highly creative, valuable activities even if the editor does not add content of her own. ").
247. See, e.g., id. at 573 (observing that in his Texas v. Johnson dissent, Chief Justice Rehnquist expressed the strength of his feeling for the American flag by quoting John Greenleaf Whittier's poem Barbara Frietchie (citing Texas v. Johnson, 491 U. S. 397, 424-25 (1989) (Rehnquist, C. J., dissenting))).
248. E.g., Blanch v. Koons, 467 F.3d 244, 259 (2d Cir. 2006) (finding no liability for appropriation artist Jeff Koons for his use of copyright-protected photographs of fashion models in collages).
249. See U. S. PATENT & TRADEMARK OFFICE, GENERAL INFORMATION CONCERNING PATENTS (2005), http://www.uspto.gov/web/offices/pac/doc/general /novelty.
250. This is in reference to Thomas Grey's familiar, though somewhat informal, definition of property as entailing the rights to use, exclude, transfer, and possibly to destroy.
251. Grey, supra note 95, at 69. On whether the last of these really is a meaningful constituent component of the property right
252. see Lior Jacob Strahilevitz, The Right to Destroy, 114 YALE L. J. 781, 783-87 (2005).
253. See Grey, supra note 95, at 69.
254. Cf. id. (describing some elemental features of property).
255. See, e.g., Blanch v. Koons, 467 F.3d 244, 259 (2d Cir. 2006).
256. See, e.g., Rose, supra note 129, at 712 ("When things are left open to the public, they are thought to be wasted by overuse or underuse."). This does not mean, of course, that the balance of public and private interests in information goods lies at an optimal level; that is a debate I am not seeking to engage here.
257. Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 432 (1984).
258. See Grey, supra note 95, at 69.
259. See Litman, supra note 153, at 337.
260. See, e.g., Artists' Rights and Theft Prevention Act of 2005, Pub. L. No. 109-9, 119 Stat. 218 (codified as amended in scattered sections of 17 and 18 U. S. C.);
261. Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 17 U. S. C.);
262. Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as amended in scattered sections of 17 U. S. C.).
263. See generally MANCUR OLSON, JR., THE LOGIC OF COLLECTIVE ACTION 141-48 (1965) (discussing the tendency of special interests to dominate legislative processes).
264. See, e.g., Doug Bedell, The MP3 Wave: as Millions Download Music Off the Net, Piracy Enforcement Flounders, DALLAS MORNING NEWS, July 27, 1999, at 1F (quoting former Recording Industry Association of America President Hillary Rosen describing her aim as protecting artists whose property is being "taken from them and distributed without their permission").
265. See id.; I would be remiss in ending this footnote without mentioning what is probably the most familiar incarnation of this rhetorical strategy: YOU WOULDN'T STEAL A CAR YOU WOULDN'T STEAL A HANDBAG YOU WOULDN'T STEAL A TELEVISION YOU WOULDN'T STEAL A DVD DOWNLOADING PIRATED FILMS IS STEALING STEALING IS AGAINST THE LAW PIRACY. IT'S A CRIME. YouTube: Downloading Movies from the Internet Is Illegal, http://www.youtube.com/watch?v=-7QAS5ze86c (last visited Dec. 11, 2009).
266. This MPAA-produced feature plays prior to most major-release motion pictures and at the beginning of most (legitimate) DVDs. The above script is read as a voiceover while images of sleazy-looking robbers breaking into cars are jump-cut alongside images of relatively innocent-looking people using computers. It is both the apotheosis of property romance, and a great indication of how powerful and pervasive a rhetorical device it can be.
267. Margaret Jane Radin, Information Tangibility, in Economics, LAW AND INTELLECTUAL PROPERTY 395, 400 (Ove Granstrand ed., 2003).
268. Cf. Gurman, supra note 37 (arguing that emphasizing public values in debates about copyright and digital media has the potential to push copyright law in a more progressive direction).
269. See Sunstein, supra note 36, at 531-35 (discussing how framing issues affects the use of particular moral heuristics).
270. When owners and their representatives angrily claim that their property is being threatened as a basis for demanding broader copyright and patent protection, users' rights advocates should counter that such expansions in IP rights should be made subject to the limitation that they do not excessively attenuate the public's property interests in common information entitlements.
271. When judicial opinions say "thou shalt not steal", Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182, 183 (S. D. N. Y. 1991) (quoting Exodus 20:15), the answer will become "from whom?" A decision that too narrowly interprets the fair-use defense effectively takes entitlements from the public, just as a decision that permits illegal filesharing would countenance taking from a private owner. The litigants in Eldred employed a variation on this theme at the trial level, arguing that the CTEA violated the public trust doctrine.
272. Eldred v. Reno, 74 F. Supp. 2d 1, 2 (D. D. C. 1999). The district court rejected this argument, narrowly construing the public trust doctrine to apply only to navigable waters.
273. Id. at 4 ("Insofar as the public trust doctrine applies to navigable waters and not copyrights, the retroactive extension of copyright protection does not violate the public trust doctrine.").
274. This ad might be phrased as: "You wouldn't let your government sell the Grand Canyon for use as a private garbage dump, would you? You wouldn't let your government give Yellowstone to a developer to create a shopping mall, would you? But this is just what the government is doing when it gives our treasured cultural resources to private companies by extending copyright terms. Culture is a form of property that belongs to all of us, and to future generations, in common. Don't let the government give our property away for free to wealthy businesses."
275. See Bedell, supra note 174.
276. See Epstein, supra note 10, at 127-28 (arguing that the CTEA's copyright term extension benefits a few individuals at the expense of the larger public).
277. See, e.g., Nate Anderson, Boy Scouts Get MPAA-Approved Merit Badge, ARS TECHNICA, Oct. 20, 2006, http://arstechnica.com/gadgets/news/2006/10/8044.ars (describing approval by the los Angeles Boy Scouts of a merit badge designed to promote respect for copyrights on terms influenced by the MPAA);
278. Posting of David Kravets to WIRED, http://www.wired.com/threatlevel/2008/ 08/nonprofit-distr/ (Aug. 21, 2008, 15:06 EST) (showing youthoriented anti-infringement materials, which wrongly state that illegal peer-topeer filesharing is a state criminal offense).
279. Cf. James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 YALE L. J. 882, 901-03 (2007) (illustrating examples of strategic behavior on the part of copyright owners).
280. Cf. Marty Jezer, Capture the Flag, COMMONDREAMS. ORG, Aug. 6, 2004, http://www.commondreams.org/views04/0806-03.htm (discussing how Democrats' overt assertions of patriotism and use of American-flag imagery in the 2004 Democratic National Convention were an attempt to attenuate the previously dominant view that Republicans held a monopoly on patriotism).
281. See David Fagundes, Crystals in the Public Domain, 50 B. C. L. REV. 139, 147 (2009) ("The term 'property' is commonly conflated with private property in both academic literature and the popular mind....").
282. See id. (stating that clearly demarcated entitlements in public or private resources are a prerequisite for their efficient exploitation);
283. cf. Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. LEGAL STUD. 453, 455-56 (2002) (discussing the role of clear boundaries in strategies for governing real property).
284. Cf. Anderson, supra note 184 (mentioning that an MPAA-approved merit badge program fails to inform los Angeles Boy Scouts about "public domain material").
285. E.g., JAMES BOYLE, THE PUBLIC DOMAIN 69 (2008) (comparing copyright to Swiss cheese-i.e., as owners' rights shot through with empty spaces to symbolize users' privileges and the public domain).
286. See Sunstein, supra note 36, at 531-35.
287. See Jonathan R. Nash & Stephanie M. Stern, Property Frames, 87 WASH. U. L. R. (forthcoming 2010) (manuscript at 7), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id=1463782 ("[F]raming similar information in different ways systematically attenuates... or conversely strengthens... property perceptions, attitudes, and reactions.").
288. Cf. Elizabeth Kolbert, Human Nature, NEW YORKER, May 28, 2007, at 23, 23 (discussing the U. S. Department of Agriculture's lack of knowledge regarding the environmental ramifications of using certain pesticides to kill fire ants during the 1950s).
289. See id. (characterizing the emergence of an environmental consciousness in the 1960s brought on, to a large extent, by Rachel Carson's writing and activism).
290. A variation of this movement is already afoot to the extent that many defenders of the public domain describe their work as part of a "cultural environmentalist" movement.
291. See, e.g., Boyle, supra note 190, at 230-47 (calling for an "[e]nvironmentalism for [i]nformation");
292. James Boyle, A Politics of Intellectual Property: Environmentalism for the Net?, 47 DUKE L. J. 87, 110-12 (1997) (drawing lessons for intellectual property politics from the environmental movement). The explicit linking of environmentalism and a progressive politics of IP is undoubtedly helpful insofar as it seeks to create consciousness of public entitlements in information. Similarly, numerous scholars have deployed commons theory as a way to identify the social benefits of shared information resources. (Pubitemid 127431345)
293. E.g., BENKLER, supra note 86, at 23;
294. Michael J. Madison et al., Constructing Commons in the Cultural Environment, 95 CORNELL L. REV. (forthcoming 2010), available at http://ssrn. com/abstract=1265793; Rose, supra note 129, at 723. This approach, too, bears great promise as a way to push academic dialogue about IP to recognize the distinctive features of IP that cause it to generate high value when governed as a commons. In light of this, it should be clear that my thesis is not that there have been no attempts to link the idea of physical property with IP in a way that pushes in favor of enhancing the public domain. Neither of these approaches, though, encourages the inclusion of IP within a rhetorical (as opposed to analytical) property tradition. I thus seek to supplement these two extant views by encouraging the deployment of property language in public debates about the ideal scope of IP. My approach thus differs in two respects from the cultural environmentalism and commons literature. First, I encourage public dialogue about IP to explicitly cast public information resources as property, rather than as nonproperty
295. see, e.g., James Boyle, Foreword: The Opposite of Property, 66 LAW & CONTEMP. PROBS. 1, 1 (2003) (describing the public domain as "the 'outside' of the intellectual property system"), for all the pragmatic reasons enumerated in this Part. Second, I encourage this usage beyond the context of academic debates about IP, but also in public dialogue-whether legislative, judicial, or popular-in order to create a general consciousness of the property status of shared intangible goods.
296. Courts tend to prioritize land over other forms of property-at least in takings law-but commentators have questioned the viability of this distinction.
297. See Eduardo Moisès Peñalver, Is Land Special? The Unjustified Preference for Landownership in Regulatory Takings Law, 31 ECOLOGY L. Q. 227, 230-33 (2004).
298. See supra text accompanying notes 58-67 (cataloguing IP owners' use of property language to articulate their concerns about attenuations of copyright and patent rights).
299. See Radin, supra note 97, at 958-61, 978-79 (discussing the extent to which the self can become entangled with the object of ownership, and propounding a theory of ownership that correlates property protection with the extent to which an object is bound up with its owner's identity). The owner of the patent or copyright, as opposed to its creator, may have no such personal connection to the device or work, of course.
300. E.g., Rod McKuen, Flight Plan, http://www.mckuen. com/flights/101000.htm (last visited Dec. 11, 2000) ("My songs are like my kids and I want them treated right.").
301. Lisa Bannon, Birds May Sing, But Campers Can't Unless They Pay Up, S. COAST TODAY, Aug. 23, 1996, http://archive.southcoasttoday.com/daily/08-96/08- 23-96/b02li056.htm.
302. Most of the songs at issue actually were copyright protected, which meant that ASCAP's claim was perfectly valid. Id. as a representative from ASCAP said, the Girl Scouts "buy paper, twine and glue for their crafts-they can pay for their music, too."
303. Id. The fact that the use was widely perceived to be in the public domain, though, suffices to illustrate the point that the public is capable of visceral outrage when they feel as though their public-as well as private-entitlements in information come under attack.
304. The threats to sue the Scouts led to a huge public outcry that turned into a PR disaster for ASCAP.
305. Thaai Walker & Kevin Fagan, Girl Scouts Change Their Tunes, S. F. CHRON., Aug. 23, 1996, at A1 (quoting ASCAP's licensing vice president as saying "we got a big black eye from this"). The licensing organization soon backed down, hedging on their original story and claiming that they hadn't meant to target campfire sing-alongs, but only public, forprofit performances by the Girl Scouts.
306. Id. Now a chastened ASCAP charges the Girl Scouts $1 per year for the right to sing licensed songs.
307. Jonathan Zittrain, Calling Off the Copyright War, BOSTON GLOBE, Nov. 24, 2002, at D12.
308. Similar indignation has accompanied attempts to perform the song "Happy Birthday to You", which most people consider a standard public entitlement, but for which ASCAP seeks to charge a license fee whenever contacted about it.
309. See, e.g., Lawrence Lessig, The Same Old Song, WIRED, July 2005, at 100. Some writers have suggested that "Happy Birthday to You" is in fact no longer copyrighted
310. Robert Brauneis, Copyright and the World's Most Popular Song, 56 J. COPYRIGHT SOC'Y U. S. 335, 338 (2009), but regardless of the song's legal status, the point remains that asking people to treat "Happy Birthday to You" as privately proprietary rather than a free element of shared culture causes a visceral sense of injustice.
311. The popular resistance to the enclosure movement in early modern England provides a historical example of widespread objection to reallocation of common land to private owners.
312. See THOMAS MORE, UTOPIA 32-33 (Mildred Campbell ed., Walter J. Black, Inc. 1947) (1516) (satirizing the enclosure movement and characterizing public-to-private redistribution of commons as a form of theft).
313. See generally Rose, supra note 128, at 43-45 (cataloguing different kinds
314. See Richard A. Epstein, The Allocation of the Commons: Parking on Public Roads, 31 J. LEGAL STUD. 515, 528-29 (2002).
315. Id. at 531-32.
316. See John Aguilar, Hard Feelings on Hardscrabble Drive, BOULDER DAILY CAMERA, Nov. 19, 2007, at A1;
317. Couple Could Lose Third of Land in Boulder, VAIL DAILY, Nov. 25, 2007, http://www.vaildaily.com/article/20071125/NEWS/71125004. Biologists have also observed this kind of otherregarding preference in some species of birds that attack invaders of other birds' established habitats.
318. See Jeffrey Evans Stake, The Property Instinct, 359 PHIL. TRANSACTIONS ROYAL SOC'Y LONDON 1763, 1767 (2004).
319. See National Trust for Historic Preservation, America's 11 Most Endangered Places, http://www.preservationnation.org/travel-and-sites/sites/ western-region/californias-state-parks.html (last visited Dec. 11, 2009) (describing budget-related threats to California state parks).
320. See Save Our State Parks Supporters, http://www.savestateparks.org/ supporters/ (last visited Dec. 7, 2009).
321. See SANFORD LEVINSON, WRITTEN IN STONE 27-28 (1998). The controversy over Decalogues, such as the one in Montgomery, Alabama that Justice Roy Moore refused to remove, provides another illustration of the power of public property in the popular imagination. Moore's intransigence in the face of a court order stirred both anger and support from countless people who will never set foot in Montgomery.
322. Cf. Rob Boston, Commandment from the Court: Alabama Chief Justice Roy Moore's Decalogue Display Violates Constitution, Says Federal Appellate Panel, as Dispute Moves Toward Showdown, 56 CHURCH & ST. 172, 172-74 (2003), available at http://www.au.org/media/church-and-state/archives/2003/09/ commandment-from.html.
323. Cf. Jack M. Balkin & Reva B. Siegel, Principles, Practices, and Social Movements, 154 U. PA. L. REV. 927, 948 (2006) ("Social movements... construct the semantic normative climate in which people talk about the great constitutional issues of the day... [and] can play an important role in reorienting law to shifting social understandings so that legal and social institutions remain in dynamic relation to one another.").
324. Hanoch Dagan, Symposium, Property and the Public Domain, 18 YALE J. L. & HUMAN. 84, 84 (2006).
325. See Epstein, supra note 56, at 75 (arguing that websites "are a new form of chattel, which are presumptively governed by the law of trespass to chattels");
326. Warner, supra note 56, at 120 (same).
327. These few paragraphs are meant to be a satellite-level overview rather than anything like the exhaustive literature review that would really do justice to these schools of thought.
328. E.g., Demsetz, supra note 120, at 350 (explaining that "the emergence of new private or state-owned property rights" in communities with different ownership systems "will be in response to changes in technology and relative prices").
329. See generally Ronald H. Coase, The Problem of Social Cost, 3 J. L. & ECON. 1 (1960) (establishing the foundations of the Coase Theorem).
330. See EPSTEIN, supra note 15;
331. see also Richard A. Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S. CAL. L. REV. 1353, 1359-60 (1982) (arguing that the touch and concern requirements for covenants and servitudes unnecessarily constrain property and do not uphold "efficient land use").
332. See Patent Act of 1790, ch. 7, 1 Stat. 109;
333. Copyright Act of 1790, ch. 15, 1 Stat. 124.
334. E.g., MILTON FRIEDMAN, CAPITALISM AND FREEDOM 7-21 (1962);
335. F. A. HAYEK, THE CONSTITUTION OF LIBERTY 139-41 (1960).
336. E.g., PIERRE-JOSEPH PROUDHON, WHAT IS PROPERTY? 38 (Benjamin R. Tucker trans., William Reeves 1902) (1840) (introducing the famous aphorism la propriété, c'est le vol translated as "property is robbery!"). This extreme critique lacks many contemporary adherents, though some Native American writers have espoused something close to this view.
337. See, e.g., PETER MATTHIESSEN, INDIAN COUNTRY 119 (1984) (quoting a Cherokee man, Jimmie Durham, expressing the view that land cannot and should not be privately possessed).
338. Radin, supra note 84, at 1851, 1903 (resisting the universal commodification of objects "as the sole discourse of human life" and suggesting instead the inalienability of some things, "grounded in noncommodification of things important to personhood");
339. see also Radin, supra note 97, at 957-61.
340. Of course, even a brief consideration of the limits implicit and explicit in real and personal property law reveal the shortfalls of the descriptive aspect of property absolutism.
341. See Eric T. Freyfogle, Context and Accommodation in Modern Property Law, 41 STAN. L. REV. 1529, 1556 (1989) (describing the idea of absolute property ownership as a "myth" that fails to account for the fact that "our entitlement becomes less and less absolute" and stressing that "ownership of property has always been a privilege granted by society, and revocable"
342. (quoting WILLIAM KITTREDGE, OWNING IT ALL 64 (1987)));
343. Williams, supra note 101, at 280-83 ("Many commentators have noted the gap between the political rhetoric of absolute property rights and the practice of limited property rights.").
344. Rose, supra note 129, at 713, 723.
345. Peñalver, supra note 130, at 1894 (highlighting property's capacity to reinforce the bonds of the society in which it exists).
346. Jedediah Purdy, A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates, 72 U. CHI. L. REV. 1237, 1242-43 (2005).
347. Some writers would contest the view that nonexclusive forms of property count as property, but even these writers stake their positions in opposition to the substantial literature that takes a contrary view of what property is.
348. See, e.g., Merrill, supra note 138, at 730, 734-39 (arguing that the right to exclude is both a "necessary and sufficient condition of identifying... property" and discussing the major schools of thought on the right to exclude).
349. BOYLE, supra note 190, at 38 (describing the public domain as "intellectual property's outside, its opposite").
350. Carrier, supra note 74, at 4, 6 (equating the "propertization" of intellectual property, which "scholars have lamented", with "the expansion of the duration and scope of initial rights to approach unlimited dimensions");
351. Lemley, supra note 74, at 895-904 ("Other scholars have lamented the rise of property rhetoric and its effects....").
352. Other fields have resisted the introduction of property ideas for similar reasons. In the field of cultural property, for example, some have resisted using property as a strategy to strengthen Native Americans' control over tribal identity.
353. See generally MICHAEL F. BROWN, WHO OWNS NATIVE CULTURE? 7-10 (2003) ("[W]e should be asking not 'Who owns native culture?' but 'How can we promote respectful treatment of native cultures and indigenous forms of self-expression... ?'"). Recent writing has suggested that this resistance is premised on an inaccurately narrow view of what property means.
354. See Carpenter et al., supra note 118, at 1029 ("[C]ultural property critics inappropriately ground their critiques in a narrow set of assumptions about property....").
355. Carol M. Rose, Property in All the Wrong Places?, 114 YALE L. J. 991, 1021 (2005);
356. see also Peñalver, supra note 130, at 1894 ("Property as entrance does not view property principally as a boundary separating individuals from one another but rather as a means of joining individuals to each other in community.").
357. See Fagundes, supra note 187, at 143.