Mossoff Throughts [8:06 pm]
The paper is actually far less controversial that he tries to make it seem, but it *is* confrontational. His use of phrases like "Internet exceptionalists" is clearly designed to get a rise out of Larry and Siva; not to mention Doc Searls.
All Prof. Mossoff appears to be saying is that, in the end, either all property is a social construction, or it all isn’t. If the former is true, then copyright is as much a property concept as any other. If the latter, then you have to decide what makes property "real."
Since he is in the latter camp (after putting Lessig, Viadhyanathan and others into a counter-copyright, pseudo-communist camp), he proposes Locke — if you put the effort into making it, you own it — the natural rights argument. (Since the paper asserts that it should not be quoted, you’ll have to find it yourself - see p6-7). Sadly, in his view, current legal thinking has eschewed this sort of absolutist description for one that suggests that property rights are just a specific bundle of carefully constructed rights, and that the difficulty is that "excludability" is one that is hard to accomplish in the digital realm — but it should be. And, someday soon, we’ll all realize that and move on. In a nutshell, that’s the argument.
Now, the first issue I have with the paper is that there are some real problems with the simplistic description of natural rights when you speak of intellectual property — I cannot resist quoting this single line from page 12: "Property is the right to acquire, use and dispose of the things that one has created through one’s labor."
If what you own is what you have created, what’s the role of the common foundation upon which your work is based? If it were easy to separate each individual’s actual contribution from the rest of the constituents of the work, and the law were constructed so that one could only claim ownership to that, Locke might be just fine.
But it doesn’t appear to work that way today. For all intents and purposes, "Snow White" now belongs to Disney — only someone with substantial means would be willing to gamble that a court would decide against a Disney claim in that arena. Disney built upon something and, under the current copyright regime, now has presumptive ownership not only of their work, but all the work that they built upon. ("Second Enclosure Movement")
And, although Prof. Mossoff might prefer to ignore it, the law of copyright as currently constructed makes such blanket awards, largely through arguments stemming from the technologies of digitization — Barlow’s digital bottles.
Prof. Mossoff tries to paint opponents of the current construction of copyright as opponents of copyright itself — and few of those he calls to task in the paper would take that position. Rather, it’s their opposition to the "land grab" that’s going on in the guise of digitization that has everyone so concerned.
It’s definitely a paper to get one worked up — and the cite over at Legal Theory Blog shows why.
(I might come back to this: the idea that monopoly is at the heart of property is another terribly ugly point in this paper, IMHO)