This week we began investigating how the law is brought to bear on technological development and cultural production. The exact nature of the law’s influence is subject to debate. For example, we have already heard from those in the Copyleft movement who assert that copyright law is increasingly used to suppress the participatory and democratizing potential of new technologies. We will also hear from those who assert that strong intellectual property protections provide stable markets which in turn spur future creativity and innovation. The disparity in these opposing views of how the law should function in these contexts requires us to revisit our analytical framework once again.
We should start by clarifying what we mean when we talk about the law. A basic definition might refer to a system of codified rules and the institutions responsible for enforcing those rules. This type of system differs from the less congealed system of social rules and cues which govern ordinary daily activities. For example, there are unspoken rules and social institutions of enforcement which compel most of us to come to class in good hygiene, to not speak over one another, or to dress in a socially appropriate manner. But this is altogether different from a formally codified set of rules enforced by the state through gradations of increasingly severe sanctions for non-compliance. A comparative analysis of the systems of codified and social rules will not concern us here. We will only acknowledge that the formal set of codified rules is not the only institution responsible for the ordering of society. Instead our emphasis will be on the origins of particular sets of codified rules which will allow us to question the official standards of justice adopted by society, the ways in which those standards have changed over time, and how they advantage or disadvantage particular groups of people.
Thus far we have heard a lot about copyright law—and we will hear much more about it over the course of the semester. This should come as no surprise because so much of the law is concerned with property relations among people. Copyright itself is commonly classified as a type of intellectual property along with patent, trademark, and trade secrets. And while I will leave it to our expert contributors to expound on the specifics of copyright law, I think it is useful to go ahead and start contemplating how copyright is related to more mundane forms of property. For example, think of your cranky neighbor’s right to keep trespassers off his lawn. How different is an author’s right to prevent the unauthorized use of her creative work? And what are the limits to those rights of exclusion in either case? So moving forward, understand that in general terms copyright refers to the right of an author to control the reproduction of her creative work. Copyright may be regarded as a form of property. However, it is unique in that this property is intangible and immaterial. Copyright may be regarded as a type of personal right. Some legal systems recognize the right of the author to protect the integrity of her work. For example, an artist of a great painting may be thought to have the right to prevent someone else from debasing that work by trivializing it for commercial purposes. This is sometimes the case in European legal traditions, but not so much in the United States. Copyright may also be regarded as a monopoly. That is to say the copyright owner is given exclusive control over the market for a creative work for a limited period of time. Note however that in all of these examples the copyright owner may not necessarily be the author, which brings us back to the subject of property.
It is important to not lose sight of the difference between property as a matter of practical usage and as a matter of legal usage. In practical usage notions of property often hinge on occupancy or momentary physical possession. Whose pen is that? This is my shirt. That may work well for objects in your direct possession, but it can be trickier for other types of items. For example, what if we are talking about large properties like ranchland where a single individual can’t really physically occupy 10,000 acres in any meaningful sense of the word? Or what about a song or a literary work—something that a single individual can’t really physically possess in any meaningful sense of the word? Consequently it makes more sense to speak of property as a right, or a bundle of rights, rather than as a thing. The difference between practical and legal usage then becomes clear. I may think this is my shirt because I both possess and occupy it, but in a crowded room it only really belongs to me because everyone else has tacitly agreed to let me keep it. Property is a system of socially constructed rights. Copyright, for example, consists of a bundle of rights to control the reproduction, distribution, adaptation, and performance/display of a creative work. Moreover, these rights are subject to a variety of exceptions which acknowledge not just the interests of the property holder, but the interests of the public as well. Consider the right of eminent domain in which a government may seize the property of a private citizen to serve some civic or public use. Again, how does copyright compare to more mundane property rights? Eminent domain is, of course, a politically-charged example—especially in a state like Texas. Nevertheless, it points to the political nature of property when we come to see it as something more than a mere physical possession. Because property amounts to an enforceable claim under the law it creates a political relation between persons. Rights of property imply both the exclusion from some benefit and the existence of some system of retribution for those who transgress property rights. In other words, property is a system of rights of each person which authorizes how persons relate to one another. And since this system of social relations is man-made, the meaning of property is not constant. Law changes and adapts in relation to other institutions and group interests. It should not be construed as a rigid system founded on a bedrock of universal and eternal truths. As evidence of this, we can point to a number of differing schools of legal thought in the United States to see how legal consciousness has developed over time.
In the years directly after the American Revolution, American jurists sought to reestablish some semblance of legal authority. There was a general concern that still-smoldering revolutionary passions might give way to a radicalized public bent on wiping away the economic disparity which permeated the social fabric of the new republic. Consequently, lawyers tended to view themselves as the trustees of the prevailing economic order, vested with a duty to protect the institution of private property, without which the tenuous balance between democracy and capitalism might buckle when confronted with the redistributive zeal of the masses. American legal thinking at this time drew heavily on classical liberal notions of defensive property rights. Classical liberalism construed property as a sovereign island where individuals could exercise their freedoms, no matter how whimsical, as long as their actions did not bring harm to others. Thus property was conceptualized as a private sphere or barricade against the tyranny of the state. The public sphere did have a place within this legal system, but its functions were clearly defined and separate from the autonomy of the essentially private sphere of individual property.
By the late 19th century mainstream legal thought in America began to change. Law was increasingly abstracted from particularized social relations where disputes turned on the issue of whether or not an individual had stayed within his or her appropriate sphere of legally protected behavior. In this sense law functioned to decide when a boundary had been crossed and the sphere of another had been breached. This approach to law required a bright line distinction between the public and private spheres. Therefore the common law which had provided the continuity so desired by the jurists in the early years of the republic was distilled into a few basic principles. Chief among these were basic categories like property and contract. It was thought that these general categories could then be universalized and applied to any particular social context.
The early 20th century bore witness to a major upheaval in mainstream theories of law. Beginning around 1920, legal realism emerged to challenge the rigid formalism and conceptualism of earlier schools of legal thought. A number of court decisions around the turn of the century had effectively obstructed the legislative agenda of the Progressive Movement. Consequently, legal realism proceeded to confront a legal system which had failed to address concentrations of economic and social power. The legal realists drew upon progressive movement critiques of the massive concentrations of property which had emerged in the wake of large-scale capitalist enterprises. By complicating the formerly bright line distinction between the public and private spheres, the legal realists were able to legitimate a role for government in the management of the growth of the new industrial economy. The realists attacked the court’s justification of liberal property rights by arguing that there are only property rights because the law created them. Therefore, any legal decision or interpretation by the court is inherently political—it is always a choice to advantage one social group to the exclusion of another.
Critical Legal Studies (CLS) is another school of thought which emerged in the 1970s. In many ways this school of legal thought continues on in the tradition of Legal Realism by emphasizing the political character of law. With regard to property rights, CLS echoes a refrain similar to the critiques offered by Legal Realism. According to this perspective, rights are constructions of society and not independent of it. The state is the basis for all systems of rights including property—making them a type of government-conferred privilege. We will see that the notion of government-conferred privilege is often invoked in discussions of copyright. This is because copyright can be regarded as a monopoly granted to an author for a limited duration. The argument of many critical scholars, including some we’ve already heard from like Lessig and Litman, is that the privilege conferred on copyright owners is too great. These scholars suggest that the original balance of copyright intended by the Founding Fathers has been lost over time. However, these arguments often border on original intent. There is no real way of knowing whether the Founding Fathers intended for there to be a robust public sphere like the one imagined by Copyleft advocates. After all, the core concern of influential Framers like Madison was how to protect a propertied minority from a permanent propertyless majority.
This post certainly does not exhaust all the different schools of legal thought. We will discuss other perspectives as the semester progresses. However, this brief survey does allow us to establish some core elements of our analytical approach to the study of law. We begin by acknowledging that most of the law discussed in this course pertains to property. Yet we will avoid conceptualizing property as a simple matter of possession. Property is not a thing. It is a system which actively creates a particular set of social relations. Law constitutes the very subject to which it refers. That is to say law interpellates individuals as legal subjects through the practice of law—it addresses the (pre-legal) individual and thus constitutes the individual as a legal subject. Wow. That seems unnecessarily complex. Here’s another way to get your head around it. I became Brett through a process of my parents constantly addressing me as Brett. In the same way you become the legal possessor of a property because the law addresses you that way. It creates you as a possessive individual in relation to other possessive individuals.
All of this simply means that law does not address some passive pre-existing subject. It actually creates the subject by referring to it. Property rights weren’t just lying around before some jurists noticed them. Property is part of the active construction of society. And as a social process it is subject to change. Law is in many ways an arena of struggle between competing interests. Our goal is to determine whose interests the law has served historically and whose interests it serves today. We’ll see that there’s not a straight-forward answer. Certainly the law is, in part, an expression of economic class interests. There is often a bias written into the law, but to leave it at that would be simplistic and reductionist. Like technology, law is both a resource for and constraint on social relations. It is our job this semester to investigate the contests over competing visions of the meaning of the law and to assess the relative worth of each vision.
Recommended readings on law:
Becker, L. B., & Vlad, T. (2003). Copyright and consequences : Central European and U.S. perspectives. Cresskill, NJ: Hampton Press.
Bettig, R. V. (1996). Copyrighting Culture: The Political Economy of Intellectual Property. Boulder: Westview Press.
Edelman, B. (1979). Ownership of the Image: Elements for a Marxist Theory of Law. Boston: Routledge & Kegan Paul.
Feather, J. (1994). From Rights in Copies to Copyright: The Recognition of Authors’ Rights in English Law and Practice in the Sixteenth and Seventeenth Centuries. In The Construction Of Authorship: Textual Appropriation in Law and Literature (pp. 191-209). Durham: Duke University Press.
Goldstein, P. (2003). Copyright’s highway : from Gutenberg to the celestial jukebox (Rev. ed.). Stanford, Calif.: Stanford University Press.
Litman, J. (2006). Digital copyright (Pbk. ed.). Amherst, N.Y.: Prometheus Books.
Macpherson, C. B. (2008). The Meaning of Property. In Property: Mainstream and Critical Positions (pp. 1-14). Toronto: University of Toronto Press.
Mensch, E. (1990). The History of Mainstream Legal Thought. In D. Kairys (Ed.), The Politics of Law: A Progressive Critique (pp. 13-38). New York: Pantheon Books.
Middleton, K. R. (2003). U.S. Copyright Issues in Digital Publishing. In Copyright and Consequences: Central European and U.S. Perspectives (pp. 53-74). Cresskill, NJ: Hampton Press.
Nedelsky, J. (1990). Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy. Chicago: The University of Chicago Press.