On Commodifying Intangibles

Abstract

James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society. Cambridge: Harvard University Press, 1996. Pp. xvi, 270. $35.00 (cloth), $15.95 (paper). Margaret Jane Radin, Contested Commodities. Cambridge: Harvard University Press, 1996. Pp. xiv, 279. $35.00. It was made clear long ago that property and value are different things. Value exists. It is a fact. It can arise from law, and much of law aims at creating more value in the world. But value can also arise in spite of law (consider, for example, the fortunes that bootleggers made during the Roaring Twenties), or in law's interstices. When a particular value arises despite a lack of explicit legal protection, its possessors often ask courts or legislatures to give them a legal entitlement to preserve and further exploit that value. Typically the holders demand (1) a liberty to employ the valued thing; (2) a right to exclude others from using it; and (3) a power to transfer the rights of exclusion and liberties of use to a market buyer. Taken together, these three entitlements - to use, to exclude, and to alienate - are recognizable as property. The law of intellectual property and unfair competition must continually decide which valuable things and behaviors should be subject to private control, and whether that control should take the form of "property." Such decisions are not necessary with regard only to newly developed technologies. Courts are called upon to make similar decisions about long-established media, including books. For example, copyright courts often must decide whether the "fair use" doctrine justifies or excuses a prima facie violation of a copyright owner's exclusive right - an open-ended inquiry that boils down to a determination that the contested use is or is not subject to the owner's property right. Sometimes "fair use" treatment is justified by a finding that no market is available to exploit the contested use, but sometimes copyright courts seem to distrust the market even when available. This raises the issue of when and why the market should be distrusted.