Does It Matter if Copyright is Property?

Recent years have seen an explosion of academic interest in questions of property. Law professors plumb ancient, Elizabethan (if I have to read any more about John Locke and copyright I will puke) and modern sources in an effort to develop a unique (read publishable in a top ten law review) theory of the subject. These are big articles. See e.g., "A Theory of Property," 90 Cornell L. Rev. 531 (2005)(74 pages); "What is Property? Putting the Pieces Back Together," 45 Ariz. L. Rev. 371 (2003)(66 pages). Intellectual property is not immune from such efforts, see the 125 page "Cabining Intellectual Property Through a Property Paradigm," 54 Duke L.J. 1 (2004). Academically oriented judges have gotten in on the debate too, see Frank Easterbrook, "Intellectual Property is Still Property," 13 Harv. J. L. Pub. Pol'y 108 (1990). Cf. Stephen Carter, "Does it Matter Whether Intellectual Property is Property?," 68 Chi.-Kent L. Rev. 715 (1993). Even those who oppose the dramatic expansion in rights since 1998 have tended to talk the IP property-talk, albeit through an appeal to a different result based on democratic ideals.

The debate about the provenance of copyright as property is not new, nor has the semantic sleight-of-hand the effort attempts gone unnoticed. At the end of the 19th century, Augustine Birrell wrote:

"The origin of property, of exclusive ownership, is one of the subjects about which our predecessors in title loved to discourse at large after a fashion more ingenious than historical. ... Occupancy and Labour are the mythical parents of Property, but we shall be less wrong in assuming the pedigree was invented to account for the fact of possession than in attributing the fact of possession to the virtues of the pedigree.”
Augustine Birrell, "Seven Lectures on the Law and History of Copyright 11 (1899).

What those who seek to have copyright classified as property is clear enough though: Blackstonian sole dominion, justified by the very classification of property. Again Birrell (id. at 103-14):

"[T]he Western World has throughout its long history shown an ever increasing disposition to recognize the right of individuals to the exclusive possession of certain things, and these rights it has clustered together, recognized, venerated, worshipped, under the word property.

To be allowed to enter this sacrosanct circle is a great thing none but the oldest families need apply … Once inside this circle your rights were supposed in some romantic way to be outside the chill region of positive law – they were based upon natural rights, existing previously to the social contract, and without which Society was deemed impossible.

Nor were these romantic conceptions more jeux d’esprit. Consequences flowed from them. If your right to turn your neighbor off your premises to keep your things to yourself – was property, and therefore ex hypothesi founded on natural justice, he who sought to interfere with your complete dominion was a thief or trespasser, but if your rights were based upon some special concession made to you upon your own merits, you find yourself dubbed a monopolist … Monopoly is always an odious word. Property is still sacred one."

But what if copyright is just a tort, as indeed courts refer to it as. Might that not lead to consideration of things in a different light, one that involves more of the balancing of interests one typically sees, say in, negligence actions, a Coase Theorem of copyright? There is an article about this too, Robert Merges, "Of Property Rules, Coase, and Intellectual Property," 94 Colum. L. Rev. 2655 (1994), but academia aside, in the real world, one wonders whether the recent willingness of courts to decline issuing injunctions signals a shift toward a less property-oriented view.