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.

For example, property law conveniently ignores the role of the commons in adding value to private ownership. Its champions generally fail to acknowledge the public system of law that enforces all those private contracts; the social trust engendered by regulation which in turn enables markets to function well; the ecological commons that are used as free waste dumps; and the civil infrastructure of roads and bridges that enable commerce to take place in the first place.

So private property rights are extolled as the most powerful engine for "progress" — and soon the idea takes root that the stricter and more absolute those rights, the better.

It is the conceit of a new book, Property Outlaws, that the dissenters to this catechism play an invaluable role in making property law more socially responsive and functional. Or as the subtitle of the book puts it, "how squatters, pirates and protesters improve the law of ownership." Property Outlaws is the rich, neglected history of conscientious objection to property law.

The authors, Eduardo Moises Penalver and Sonia K. Katyal, are professors of law at Cornell Law School and Fordham Law School, respectively. In their telling, the people who challenge the broad scope of property laws through deliberate protests are a highly useful and indeed, honorable force for good. They are the ones who have shown great personal courage in forcing property law to become more responsive to evolving norms. They are the ones who dare to assert that property owners have certain affirmative responsibilities to larger social and democratic values.

Penalver and Katyal start their book with the story of four African-American college students who sat down at the lunch counter in a Woolworth’s store in Greensboro, North Carolina, in 1960, seeking to be served. This nonviolent protest was not just an attempt to win equal civil rights; it was also a challenge to the strict prerogatives of property law.

The students wanted to prohibit a private property holder (Woolworth’s) from being able to discriminate on the basis of race. In the end, of course, the civil rights movement helped achieve this change. This principle has become so integrated into American values, in fact, that it is difficult for many to appreciate that the change was catalyzed by "property outlaws" — dissenters who were willing to make a public spectacle of themselves by protesting the (overly broad) privileges of private property.

Penalver and Katyal deserve great credit for excavating this little-explored history of subversives trying to remake property law. It is surely easier to strike a triumphalist pose about the myriad (materialist) virtues of private property, and to ignore how social struggles helps incorporate new social values into property law.

Penalver and Katyal introduce a number of conscientious objectors for our consideration: the peer-to-peer file sharers who are challenging the record industry’s failure to offer digital distribution of music, and the Norwegian hacker who landed in jail after reverse-engineering Hollywood DVDs so that they could run on a Linux-based computer.

The authors also describe the battles of HIV-infected people against companies who claim exclusive patents (and charge expensive prices) for life-saving AIDS drugs. One chapter is devoted to the students who discovered software flaws in Diebold electronic voting machines and posted internal corporate documents confirming the flaws — only to be accused of violating copyright law by posting the documents on the Web.

In each instance, as the authors explain, social protest is a means by which property law is improved and reinvigorated. Since property law is inherently conservative (its stability and predictability is regarded as a virtue by owners), it invariably falls to troublemakers to call attention to the anti-social limitations of property law and to demand reforms.

In our time, property outlaws focus much of their attention on copyright, trademark and patent law, especially as they apply to activity on the Internet. They ask why the public’s "fair use" rights to excerpt and re-use existing copyrighted material should be so limited. They question the exclusive patent protection for lifeforms, genes and human tissue. They challenge trademark limitations on how imagery and design may be used, even for public commentary and expression.

Penalver and Katyal introduce a number of useful distinctions — a vocabulary of sorts for understanding property outlaws. For example, some dissenters object to the very idea of information as private property. Others simply oppose the broad scope of copyright law. They think that fair use should not be so constricted, or that the terms of copyright law ought to be shorter (thus enabling works to enter the public domain more rapidly).

The authors propose a useful distinction between the property outlaw and so-called "altlaws."  "Whereas the outlaw might disagree with the concept of intellectual property altogether, an altlaw might seek simply to expand privileges like fair use in order to allow more access to nonowners."

Protests against private property are a conspicuous form of social and political communication, note Penalver and Katyal, because they enable people to "send a message" that is not effectively communicated otherwise. That was the point of the Woolworth lunch counter sit-ins, and that was the point of anti-globalization protesters smashing the windows of Starbucks stores. "There is a difference between talking about something and being confronted with an actual example of it," write Penalver and Katyal.

They note that our "lived experience of the law" is relevant to how we make legal and moral interpretations of the law’s justice and injustice. "Property outlaws are therefore able to offer a particularly concrete vision of their alternative conception of the law." Violating property law becomes a vehicle for expressing a different cultural role for property. The civil disobedience becomes an appeal to the general public to change the law.

I recently encountered a great example in the form of Isaac Hacksimov, a hackers’ group based in Madrid, Spain. Isaac Hacksimov sent a certified fax notifying the police of their intention to publicly download files — and then they did just that in front of a police station.

Their point was to dramatize in a noisy public way that file-sharing is legal in Spain. (Legislators and culture industries were claiming that it was illegal, in order to win support for legislation that would actually make it illegal.) The hacktivists essentially dared the police to arrest them, which they didn’t. Point made. The public perhaps began to see property rights in digital files in a different light. (A video of the demo can be seen here .)

"We have needed this book for a long time," writes copyright scholar Siva Vaidhyanathan on the back cover of Property Outlaws. Indeed. Civil disobedience has a long and venerable history. It’s about time that its relevance to so-called intellectual property is made clear, because the scope of copyright, trademark and patent law represents one of the great cultural battlegrounds of the future.