JURIST Guest Columnist Brian L. Frye, conceptual law professor at the University of Kentucky College of Law, discusses copyright as a form of rent in the wake of the Internet Archive's National Emergency Library ...
Like everyone, the copyright cops want to have their cake and eat it too. They claim that copyright is a kind of property, so the law should protect it just like any other kind of property. But they also claim that authors are morally entitled to copyright ownership because of their special contribution to society. I find both claims uncompelling, but in any case, they can’t have it both ways. If copyright is a property right, they have to own it and can’t claim the moral high ground.
Since time immemorial, copyright owners have argued that copyright is a property right, which should receive the same protections as any other property right. The Supreme Court agrees. Copyright is a bundle of exclusive rights, freely alienable, like any other property right. If it walks like property and quacks like property, surely it’s property, right?
Of course, copyright skeptics have always objected to the property metaphor, observing that works of authorship aren’t like other kinds of property because consumption doesn’t decrease supply. After all, when you consume an apple, there’s one less apple, but when you consume a work of authorship it’s still there, undiminished. If the purpose of property is to encourage efficient consumption, what is the point of property in non-rivalrous goods or, more simply, goods that don’t diminish with consumption?
But the copyright cops persist, insisting that copyright is property, so copyright owners are entitled to the entire value of the works they create because that’s what property means. Accordingly, copying a work of authorship without permission is theft, even though it only increases the number of copies, because the copyright owner didn’t profit. And even consuming a work of authorship without permission is wrong because copyright owners are entitled to profit from every use of the work they own.
The circularity of these claims should be obvious: copyright is property because copyright owners receive exclusive rights, and copyright owners receive exclusive rights because copyright is property. But let’s run with it. Okay, copyright is property and copyright owners are property owners. Why are copyright owners entitled to profit from the use of their property?
Because they’re landlords. Copyright owners want to own the property metaphor? Then, let ‘em own it. If copyright is property, then they are landlords and copyright profits are rent. Just like landlords, copyright owners simply make a capital investment in creating or acquiring a property, then sit back and wait for the profits to roll in.
Of course, copyright owners and their proxies object that my analogy is unfair. They’re right, it’s unfair. To landlords.
After all, real estate is a far riskier investment than a commercially valuable work of authorship. For one thing, real estate requires regular maintenance, while intangible works of authorship require nothing but possible policing. For another, real estate is far more volatile, as we’ve seen in recent memory, and are likely to see again in the near future, while valuable works of authorship tend to retain their value. So much so that securitization is pointless, with the notable exception of novelties like Bowie Bonds.
An example. As the COVID-19 pandemic loomed, one small landlord asked the popular website “Am I the Asshole” whether he was wrong to object to the refusal of his newly-unemployed tenants to pay rent. The overwhelming consensus? Oh, hell yes. Indeed, Twitter treated the hapless landlord to a relentless stream of abuse. And Twitter was right! In a moment of crisis, landlords should recognize that their tenants are also in dire straits, and work with them to mitigate their mutual problem.
By contrast, when the Internet Archive created the National Emergency Library, a repository of ebooks intended to provide access to consumers who couldn’t visit the library, the copyright cops went berserk. A claque of authors immediately objected that the Internet Archive was unfairly depriving them of the revenue they needed to survive. And everyone accepted their baloney.
The reality is, those authors were making exactly the same argument as the vilified landlord. Never mind Mike Masnick’s explanation of why the authors were wrong on the merits of what the Internet Archive actually offered. And never mind that none of the authors provided any evidence demonstrating that they actually lost profits because of the Library. Let’s focus on the fact that the authors were complaining because they were worried about an interruption in their revenue stream. Or rather, their potential revenue stream. An observation: when you find yourself criticizing libraries, it’s probably time to step away from the keyboard.
What were they really complaining about? The idea that maybe we shouldn’t think about copyright as a sacrosanct privilege, rooted in the moral virtue of authors, and worthy of protection against all comers. Why do they hate being compared to landlords? Because it hits way too close to home. Landlords can claim the moral high ground. But they rarely succeed. For better or worse, no one likes a landlord. Should we like copyright owners any better?
Now, let me stipulate that I have nothing against either landlords or copyright owners. Both have their place, and both play an important economic role, historically and today. But let’s not pretend that authors are any better than any other kind of property owner. If property is property, it’s time to admit it.
Brian L. Frye is a conceptual law professor (IP, PR, nonprofits, art law, legal history) at the University of Kentucky College of Law. Brian is also a “Securities artist” and a host of the Ipse Dixit Podcast.
Suggested citation: Brian L. Frye, OK, Landlord: Copyright Profits Are Just Rent, JURIST – Academic Commentary, April 8, 2020, https://www.jurist.org/commentary/2020/04/brian-frye-copyright-profits/
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