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Property Interests in Conflict -- the Technology/Copyright Crossroads

Remarks for the Progress and Freedom Foundation conference on “The Future of Online Music, Movies & Games”

By Mike Godwin Senior Technology Counsel Public Knowledge <mnemonic{at}well.com>

Based on remarks originally delivered June 10, 2003

In his comments on the first panel at this conference, our master of ceremonies Jim DeLong expressed his distress at anti-property rhetoric. And it’s true that current debates about copyright in the Internet Age have led to some commentators to argue for the distinction between copyright interests and the traditional interests associated with real and tangible property. Those commentators have a point, insofar as the bundle of rights associated with “intellectual property” (which is itself only a few decades old as a term of art) is different in many ways from the rights associated with real or tangible property (as well as from the rights associated with “non- intellectual but intangible property,” such as accounts receivable).

But it is a point that doesn’t advance the current debate at the intersection of copyright and technology policy, because it doesn’t point to a resolution of that debate that will generate much of a consensus among policymakers or among the rest of us.

Furthermore, we should also consider that one source of anti-property rhetoric is the rhetoric of those who want to stress the connection between (or even identity of) intellectual property and traditional property interests. That’s because there is a regrettable tendency to invoke property doctrine as if, standing alone, it were dispositive of any the questions raised by computers, file-trading, the Internet, and the current struggle at the intersection of copyright and technology policy. There’s a tendency to invoke property doctrine loudly and then sit down, satisfied that all questions have been answered.

Jeff Eisenach suggested in his remarks from the audience that the pro- property/anti-property rhetorical divide maps to the traditional left- right polical spectrum, but that characterization is clearly incorrect; Richard Epstein noted, for example, that even within the American libertarian movement, itself generally sympathetic to pro- property arguments, there is division these issues, and when it comes to libertarian views on copyright and technology policy, I can assure you that there’s even more division.

Assume copyrighted works are property -- then what?

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