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The property rights movement and intellectual property: a response to Peter Menell.

Article Excerpt
The fall issue of Regulation contains a provocative attempt by University of California, Berkeley law professor Peter Menell to discredit what he calls the property rights movement (PRM) for its supposed "absolutist" stance on intellectual property ("Intellectual Property and the Property Rights Movement"). As part of the article, Professor Menell projects the image that I participate in (or perhaps even lead) a movement that poses a profound danger to the efficient operation of our complex system of intellectual property law, especially as it relates to patents and copyrights. In general, I do not like to think of myself as part of any "movement" because politics is not my business. I am concerned only with stating my own positions as best I can and not with making the compromises necessary to gain political support. But for these purposes, I shall acquiesce in this characterization in order to challenge what is, at the end of the day, only a one-count indictment, which is that people of my ilk do a great public disservice by championing the unthinking extension of rigid notions of law for tangible property to the more nuanced domain of intellectual property. In Professor Menell's mind, the great intellectual vice of the PRM is to "'port' the absolutist libertarian vision to the realm of intellectual property."

Professor Menell's initial exhibit of this regrettable tendency is not any piece of academic writing by me or anyone else. Rather, he quotes from an advertisement that the Washington Legal Foundation placed on the New York Times opinion page on May 21, 2007, under the title "Stolen Property, Stolen Future." The alleged vice of this ad was to "blithely" create an equivalence between tangible and intangible property by asking:

What if strangers showed up in your backyard and held a block party? America's fiercely defended tradition of private property rights wouldn't tolerate this. But that is in essence what's happened to the intellectual property ... of American business overseas.

This statement is not as foolish as Menell indicates if one takes the time to read the rest of the ad. The organization was not talking about the fine points of intellectual property law that occupy appellate judges. Rather, it was issuing a call to action to public officials against the serious problems of the wholesale piracy of American intellectual property abroad and the introduction of counterfeit drugs and surgical devices into the United States. The ad was right to insist that widespread counterfeiting may put ordinary people in peril of their lives and it was equally correct to insist that systematic piracy results in a massive disruption of the economic system by rewarding wrongdoers who have contributed nothing to wealth creation. Whatever the differences between tangible and intangible property, none of them matter for the urgent problem of devising effective countermeasures to piracy and counterfeiting. The transference of sentiment from tangible to intangible property looks quite good in this particular setting. I believe Professor Menell would not disagree with any of the particular concerns raised in the advertisement.

Menell's concerns also touch sensitive political issues, for he upbraids the PRM for seeing "in the Constitution's Takings Clause uncompromising protection of property, founded in liberty" in its criticism (along with the vast majority of the American people) of the Supreme Court's 2005 decision in Kelo v. City of New London. But he misconstrues the PRM's key objection. The amicus brief that I prepared with Mark Moller, then of the Cato Institute, in Kelo did not argue that the takings clause gives absolute protection to private property from government takeover; after all, the clause gives explicit authorization of government takings for public use. But what counts as public use? The term clearly includes all takings where the property is to be used for state-run activities for the public at large, and even those--e.g., railroads--that are privately owned but are under a common carrier obligation to take all comers.

Indeed, we insisted that the public-use requirement also allowed the government to respond intelligently to a genuine holdout problem even when universal public access was not guaranteed as of right. Specifically, we recognized that the government could authorize takings for private use so long as the holdout problem was real and the subjective value of the property taken was negligible. Those twin conditions are satisfied, for example, when the owner of a mine needs to mount an aerial tram over scrub land to reach the nearest railroad line. But tragically,...

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