property rights

Can the boundary-bursting categories of the commons penetrate the mighty citadel of Harvard Law School and its entrenched ways of thinking about property, markets and law?  I set out to find out last Saturday at the “This Land Is Your Land:  Remaking Property After Neoliberalism” conference.  The one-day event was convened by Unbound, the Harvard Law journal of the legal left, and the Institute for Global Law and Policy.  I had been invited to participate on a panel, “From Homo Economicus to Commoner” and to explore with about 100 students and a few professors how “the left” might approach property rights in some new ways.

The liberal/leftist luminary Duncan Kennedy, a founder of the critical legal studies movement and an advisor to Unbound, opened the day with a talk about “property as fetish and tool.”  He explained how both the right and the left have their own versions of property fetishism.  The right has adopted highly naturalistic arguments that regard property as an entirely natural, ahistorical reality.  An example is the right’s imposition of intellectual property rights on countries of the global South. 

The left, meanwhile, generally regards property law as a “bundle of rights” that is principled and conceptually coherent when it is in fact, he pointed out, simply an incoherent accretion of laws that reflect countless political struggles of the past.  The problem with the left, Kennedy suggested, is that it does not have an alternative conception of property law except as a useful tool of left political projects, such as better housing and social conditions.  Kennedy implied that it was futile for the left to try to get “outside” of property discourse.

Fortunately, Michael Hardt of Duke University – author of Empire and Commonwealth, among other books –objected.  He argued that we need to develop a conception of property that lets us think outside of standard property discourse and property relationships.  But is this possible and desireable?  Conference participants disagreed, and came back to the topic many times throughout the day.

On the eve of Thanksgiving here in the US, Andro Linklater, the author of a new book, Owning the Earth:  The Transforming History of Land Ownership (Bloomsbury), describes how the Pilgrims imposed their notions of private property on the land commons in the New World.  The consequences – while perhaps inevitable, whether from them or other settlers – were nonetheless pivotal in the future development of America.  Lanklater published an excerpt of his book recently on the Bloomberg News website. (Tragically, Linklater died a week before his book’s publication on November 12.)

In 1623, William Bradford, the future governor of the colony, declared that land would be privately owned and managed, with each family assigned a parcel of land “according to the proportion of their number.”  This decision had profound effects on how individual Pilgrims managed their land and related to each other.  

As Bradford wrote:  ‘‘And no man now thought he could live except he had catle and a great deale of ground to keep them all, all striving to increase their stocks. By which means they were scattered all over the bay quickly and the towne in which they lived compactly till now was left very thinne.’’ You might say that private property rights in land were the beginning of suburban sprawl. 

Linklater points out that the native people, the Wampanaog, had allowed individual parcels of land to be used and occupied by individual families, but no one could have exclusive, permanent ownership of the land.  As the Wampanaog leader Massasoit explained:  ‘‘The land is our mother, nourishing all her children, beasts, birds, fish, and all men. The woods, the streams, everything on it belongs to everybody and is for the use of all. How can one man say it belongs only to him?’’

In this age of marauding markets, it almost seems quaint to ask, “Who owns culture?”  We know the answer.  When push comes to shove, the owners of copyright, trademarks and patents own everything.  We may think that the music, images and stories of our culture belong to us, but as a matter of law, in the 165+ countries that have signed the Berne Convention, our designated role is....to buy (and not use someone else's "property.")   

A new book of essays complicates this picture.  Negotiating Culture:  Heritage, Ownership and Intellectual Property -- just published by the University of Massachusetts Press -- points out some of the distinct limits to “intellectual property’s” dominion.  The book is a series of essays by academics from various disciplines that explores how social practice and culture have their own moral legitimacy and social power -- enough to push back on claimed property rights. 

The book chronicles controversies over who should have legal rights of ownership and control over Native American remains, Green and Roman antiquities, works of art looted by the Nazis, among many other objects and resources.  We are asked to consider whether culture should be treated as property that can be bought and sold (and treated accordingly), or whether it must be considered inalienable, or not suitable for sale on the market, and treated with the utmost dignity and respect.  

These are the magic words:  It seems that the core issue in so many of these disputes is a matter of identity, dignity, respect and, of course, power.

Museums are increasingly at the epicenter of cultural ownership issues these days.  The 2005 trial in Italy of Marion True, the former curator of classical art at the J. Paul Getty Museum, is a beautiful case study of how social norms about the ownership of ancient antiquities have dramatically shifted.  Prior to that trial, museums often bought or accepted donated antiquities without too much thought about the provenance of the work.  After all, antiquities don’t usually come with title deeds or receipts, and it was an open secret that many of them were dug up by looters and spirited out of the country into the hands of profit-minded dealers.

As commercial interests try to convert what has essentially been a commons into a total market order, the Internet is experiencing a mid-life crisis.  The open Internet is in the process of being enclosed by a variety of commercial forces.  The struggle for political and creative freedom is getting more urgent and complicated as commercial forces try to “develop” the Internet.

The challenge for people who believe in free culture is to reinterpret the core values of the Internet and somehow develop new ways to protect them in today’s more complicated environment.

So what the some of the key macro-economic trends of our time?

Who Owns the River?

The property rights crowd just can’t seem to comprehend that ownership rights are not absolute. Property doesn’t exist in a vacuum, but in a social, ecological context. The latest installment of this long-running drama is the controversy between private landowners in Gunnison, Colorado, and river-rafting outfitters that take people down the river.

The question at hand: Are the rafters violating the private property rights of landowners when they float down the river?

Historically, under the public trust doctrine of most state’s laws, the water in river and lakes belongs to everyone, and can be accessed through public rights of way. However, as the New York Times reported on April 16, it seems that they are some ambiguities about the scope of private landowner rights in Colorado. The water belongs to the public, but the river and lake beds and banks belong to the people who own the adjacent land.

Property Outlaws

The pantheon of property law generally honors the great virtues of private ownership — while making the case that the public benefits from such arrangements.

Unfortunately, the benefits to the public are often more nominal than real. Drug makers frequently use their patents to extract exorbitant prices for life-saving drug compounds. Tech companies claim exclusive rights to common “business methods” and mathematical algorithms embedded in software. The record and film industries have expanded their copyright monopolies in numerous ways at the expense of the public domain and fair use rights.

As practiced, in short, property law tends to expand private prerogatives and suppress public benefits. Its priorities — to turn ownership into money — often trump those of democracy, community, free expression and life outside of the marketplace.

The Tragedy of the Anticommons

Property law is not exactly a riveting subject, and law professors are not usually good storytellers. But in his new book The Gridlock Economy, Michael Heller, a professor at Columbia Law School, has written one of the most intelligent and accessible critiques of how overly broad property rights can be harmful not only to the commons, but to the market.

If you care to learn why cell phone service is so bad in the United States, why breakthrough medical treatments cannot be taken to market, and how holdouts can stymie valuable real estate development, The Gridlock Economy helps locate a core problem: the fragmentation of individual property rights and the paralysis that results. Though economists like to tout property rights as a wonder-cure for virtually everything that ails us, Heller explains how all sorts of innovation and market growth is killed in the cradle simply because there are too many rights-holders with too many divergent concerns.

Syndicate content