I just read a provocative paper that, though I doubt it meant to, reinforced my sense that calling copyright “property” is unhelpful: Jonathan M. Barnett, What’s So Bad About Stealing? The paper skips straight to the proposition that any kind of unauthorized copying (including copying of ideas and expression, but also and of more present interest mechanical reproduction) is theft, then concludes that “Some positive level of tolerated theft is an essential component of any transaction structure that maximizes the social wealth generated by creative production.” I don’t quite understand how you can call copying theft without first establishing that the copied thing is owned.
As I tried to work through the reason the paper proceeds as it does, it’s that “theft” is a necessary concept in the property system, but that historically what formally counts as IP theft is highly variable. But I still don’t understand why “theft” is the right concept for copyright, since it inherently takes a normative side while Barnett simultaneously seems to want to disavow taking a normative side. It might be correct to say that slaveowners believed that runaway slaves were stealing property, but for us to adopt the language of theft as our own description of what happened would be extremely problematic without a lot of dramatic/poetic license.
What really struck me here about the language of theft (second-comer side), rather than the more apparently neutral language of property (first-comer side), was the ways in which it highlights that intellectual property isn’t about theft. Since the paper makes arguments about the Demsetzian structure of property rights in intangible goods, I think it’s fair to bring up patent: patent’s formal definition is definitely not about copying. Trademark, a cousin regime, takes copying into account, but again the fact that the defendant invented the accused mark herself is no defense. Even copyright, with its doctrine of unconscious copying, can’t really sustain the language of theft. If I take your umbrella from a restaurant, believing it’s mine, I might create a bailment (I don’t really know the law there) but it would be bizarre to call me a thief. Maybe a less tendentious term like “taking” would make it easier to see the argument, but theft is just too rich a concept for me to get past it. This is very much about spillovers/causation—even in copyright, which is about copying, the use of “theft” to describe unauthorized utility causally related to the existence of an expressive work makes very little sense to me.
There’s still an interesting argument in the paper about what norms and formal law surrounding copying of expression will look like given various interests, but I’m left puzzled what purpose the language of theft serves. I suppose the idea is to avoid the question of what the boundaries of copyright are/should be (among other things, copying of ideas, copying of facts, private copying, private performance, first sale, and all the specific exceptions in the Copyright Act are apparently legalized theft, which might be efficient, in this view), but I don’t think that can be done.
This paper is also another datum for my theory that copyright restrictionists like to talk about “readers” and maximalists like “users.” Or anyway, they like to use that name for them.