Software and Shovels: How the Intellectual Property Revolution is Undermining Traditional Concepts of Property

This Article argues that the revolution in the law of intellectual property threatens traditional conceptions of property rights. The worst enemy of the music and movie industries is not the pirate but the homeowner. We are in the midst of a revolution in our understanding of property in which the rights of the holders of patents, copyrights, and trademarks are being steadily extended. As a consequence, more traditional property rights are being eroded. That is the real lesson behind cases such as Metro-Goldwyn-Mayer Studios Inc. v. Grokster, BMG v. Gonzalez, and the lesser known but very important Davidson v. Jung. One of the most peculiar features of this revolution is that its proponents have earned a reputation as the defenders of property rights. On one side of the controversy, according to the commonly accepted view, stand the protectors of property who support the enormous increase in the rights of what we increasingly call “intellectual property.” On the other side, according to this conventional view, stand those who oppose property itself.The conventional view is incorrect. Focusing on copyright, the Article argues first that the Lockean justification that is often advanced in support of intellectual property rights is fundamentally misconceived. Second, looking to history as well as to the present, the Article shows that previously neglected aspects of copyright law shed a surprising light on the public nature of copyright protection. Finally, the Article argues that the intellectual property revolution is being advanced through a combination of devices, including product design, contract, statute, and education. These devices are being used to restrict the rights of purchasers of copyrighted materials, and to reeducate the populace to accept the reduction in their rights that is essential to the success of the revolution.Copyright and patent law are dedicated to bringing writings and inventions to the public. That is their justification under the Constitution. The holders of copyrights and patents are using the language of property to attempt a subtle but decisive shift in the purpose of intellectual property law in the direction of purely private entitlement and away from any public benefit. The endpoint of the revolution is an assault on ownership, as the purchasers of copyrighted materials are turned into renters. This development portends a vast legal and social transformation leading to the dominance of the copyright industries. Judge Easterbrook has written that just as there was no law of the horse in the past, despite the undoubted importance of the horse, so there should be no law of the computer now that it is of central importance to society. But there was indeed a law of the horse, which we generally term “feudalism,” and it came into being because of the superiority of the horse soldier over the foot soldier. The owners of horses and the hardware that was needed to outfit them attained social and legal ascendancy. They were a superior class, and their power was expressed in the central legal importance of real property. Ironically, Judge Easterbrook himself is helping in the creation of a new law of the horse, one that is conferring upon the owners of software the powers that went with the ownership of real property in feudal regimes. This Article explains why this new law of the horse must be rejected.