If Copyright Is 'Property' Why Aren't People Outraged When The Gov't Seizes Content From The Public?

from the property? dept

Michael Scott points us to an interesting analysis of a recent academic paper exploring (yet again) the issue of whether or not patents and copyright should be viewed as property. I won't go into the specific arguments of the paper itself (take a look to read about it, if you'd like), but one key point did strike me as quite interesting:

Professor Fagundes argues that property rhetoric currently is understood through the lens of "ownership" discourse, which understands "property" to mean private rights that are good against the world. Exhibit A for this thesis is the very different public reactions to the Supreme Court's rulings in Kelo and Eldred. In each case, the Court held that the constitution did not protect members of the public from elected officials transferring their rights to another private party. Certain groups were outraged by the Kelo result because, in their view, the Court had fundamentally disregarded specific private owner's property rights. By contrast, the Act at issue in Eldred "took not just from the original plaintiff Eric Eldred, but from every member of the public the entitlement to use expired copyrighted materials for another twenty years." (P. 655.) This transfer, however, was greeted with a public yawn because it was not seen as a transfer of public property into private hands.

If you're not familiar with the two cases (and you should be), Kelo was the Supreme Court case that ruled it was okay for eminent domain to be used by the government to take land away from a landowner and hand it to a private developer. This got a lot of people quite upset about the government overstepping its bounds. Eldred, of course, argued effectively the same thing, in claiming that copyright extension transferred "property" from the public to private interests by blocking it from entering the public domain. While it's worth noting that the Supreme Court seems somewhat consistent on the rulings, it certainly is notable that the folks who got upset by Kelo didn't get as upset by Eldred (yes, some of us were quite upset by Eldred, but it didn't get nearly the same widespread reaction).

It could be that, in general, most people simply don't, implicitly, view copyright as property. Or, it could be that many people don't quite understand copyright issues. I think a bigger issue might just be that most people simply don't understand the importance and value of the public domain. So, without realizing what they're losing, they don't recognize that works failing to move into the public domain is a bad thing.

Filed Under: copyright, eldred, government, kelo, property, public domain