Mossoff on Epstein on "Is Copyright Property?"
Adam Mossoff (Michigan State University-DCL College of Law) has posted Is Copyright Property? A Comment on Richard Epstein's Liberty vs. Property (from Adam Mossoff, PROMOTING MARKETS IN CREATIVITY: COPYRIGHT IN THE INTERNET AGE, James V. DeLong, ed., 2004) on SSRN. Here is the abstract:
- This short essay is derived from commentary on Richard Epstein's article, Liberty vs. Property, which were delivered at the 2003 conference on Promoting Markets in Creativity: Copyright in the Internet Age, co-sponsored by The Progress & Freedom Foundation and the George Mason University's Tech Center. The essay suggests that the opponents of Epstein's position that copyright entitlements are derived from similar policy concerns as tangible property rights would reject his thesis at the conceptual level, maintaining that copyright is not property, especially in the context of digital media. By assuming their rallying cry that "copyright is policy, not property," this essay reveals that opponents of digital copyright are caught in a dilemma of their own making. In one sense, their claim that "copyright is policy, not property," is an uninformative truism about all legal entitlements, and in another sense, represents a fundamental misconception of the history and concept of copyright. The concept and historical development of copyright are more substantial than its representation today as merely a monopoly privilege issued to authors according to the government's utility calculus. The essay concludes with the observation that those who wish to see copyright eliminated or largely restricted in digital media are in fact driven by an impoverished concept of property that has dominated twentieth-century discourse on property generally. As a doctrine in transition - we are still in the midst of the digital revolution-copyright may be criticized for various fits and starts in its application to new areas, but the transition itself does not change copyright's status as a property entitlement.
