What's really helpful is considering property rights independently of whatever they're actually protecting.

And protecting is the key word, since the rights themselves are abstractions. What gives them concrete value is the institutionalized mechanisms of enforcement, from well-grounded law, to courts, to sherifs with badges and guns. It's a formidable apparatus. And what constitutes "property" is anything that society is willing and able to place within the jurisdiction of this contracting and enforcement system.

Throughout the 20th century, when the only parties in a position to seriously violate the intellectual property rights of others were major companies, the law was limited to the rules of engagement for big publishers dealing with each other, as well as their suppliers. Not having unfettered access to movie studios, broadcast networks, or commercial printing presses, the general public had no way to duplicate and distribute media on an appreciable scale. Though the scope of media has expanded enormously in the past 300 years, this fundamental assumption about limited access to its mechanisms remained valid.

The suddenly, it didn't - a change that is now irreversible fact. To say that the law is now unfit for present reality is an understatement. And to reflexively apply its terrible machinery in a heavily populated arena where is is absolutely, totally, 100% inappropriate is a recipe for catastrophe.

So we need to stop skirting the issue by talking about "outdated business models" and telling businesses that "they just need to adapt." Instead, we need to let them deal with their own problems, or retire gracefully. Our real problem is clearly and forcefully asserting that once-viable copyright law now constitutes an intolerable extension of property rights; one that is fundamentally incompatible with human autonomy in a networked civilization. While copyright laws remains a reliable tool for governing the conduct of incorporated entities (and are worth maintaining for this reason alone), they must be rolled back dramatically now that their fundamental assumptions have been falsified by the normal progress of humanity.

This is not an unprecedented development. Indeed, for most of human history the concept of "property" used to be so expansive that it even included other people. When abolishing slavery, what we were really doing is redefining the ancient scope of "property". And while we make a polite ritual of men asking fathers for their daughters hands in marriage, this tradition dates back to a time when taking a bride was an actual property transaction. When child labor laws were imposed, much of the resistance came in the form of people saying that these regulations interfered with the "property rights" they had in their own children. While that arrangement may have been uncontested at one point, society developed to a point where this idea was both fought and defeated. If anything, these episodes demonstrate that the flexibility - not the rigidity - of property's scope is what gives the institution its lasting value.

Today, we've reached a point where it's neither ethical nor practical to extend enforceable property rights into the contents of people's hard drives. Indeed, when you consider the totality of the police surveillance that an even marginally-effective system would require, the very thought is horrifying. There is no conceivable benefit offered by the current beneficiaries of expansive copyright protection that outweighs the extraordinary danger and inevitable abuse that will attend viable, non-arbitrary enforcement.

This is the point that Kevin Drum gets exactly wrong. Building an all-seeing, all-controlling IP enforcement apparatus isn't something we even want to consider, let alone try. History has demonstrated that once a society is infested with this kind of malware, it's virtually impossible to get rid of without suffering the collapse of the state itself.

No, what We the People need to focus on what we consider to be an appropriate limit to intellectual property rights in general, and persuade our legislators to act accordingly. Private companies should be free to operate within those bounds, or die trying. But they cannot displace the sovereignty of people working through elected representatives to define law appropriate to the time and place we're actually living in. As this fight plays out, the legal redefinition of "property" should be priority #1.