Vested Use-Privileges in Property and Copyright

Abstract

TABLE OF CONTENTS I. INTRODUCTION II. VESTED USE-PRIVILEGES IN PROPERTY A. Hohfeldian Specification of the Sovereign Use Principle 1. Defining 2. Defining B. Vested Use-Privileges as Recognized Property Interests 1. Ownership of Use-Privileges Without Rights To Exclude 2. Is the Sovereign Use-Privilege Vested? III. VESTED USE-PRIVILEGES AND COPYRIGHT A. The Object and Scope of Ownership in Copyright B. Analysis of the Copyright Holder's Exclusive Rights 1. Performance Rights 2. The Reproduction Right 3. Distribution and Display Rights 4. Moral Rights IV. CONCLUSION I. INTRODUCTION Despite the best efforts of a few generations of law professors and Supreme Court justices, the claim it's mine I can do whatever I want with continues to exert a strong normative pull in our culture. (1) I shall dub this claim the use This principle asserts not only the entitlement to do things with what is owned, (2) but also the entitlement not to do with it what others might like. Note that this claim is very different from the other key normative claim of property owners, the so-called to (3) This latter claim can be restated colloquially as it's mine, you have to keep off without my permission. There is some debate among property theorists as to which claim provides the central principle of property law. (4) We need not weigh in on that debate to observe that people care deeply about the sovereign use principle even apart from the right to exclude. People tend to regard the freedom to use their property as they please as a sort of affirmatively vested entitlement inherent to the very possession of property. Moreover, when they assert it's mine, I can do what I want with they also assert its logical corollary: I can't do what I want with it, it's not really mine. Interestingly, intuitions derived from the sovereign use principle have become the basis for a significant strand of rhetoric and argument directed against copyright law. The thrust of this argument is that copyright violates the sovereign use principle. (5) It does so by imposing restrictions on our use of chattels that in every other respect we own as property. Even though you own a copy of a book, film, or music recording, copyright law may forbid you from doing certain things with it, such as using it to produce additional copies, or to read (or play) it aloud in a public place. (6) The same is true of your computer, television, and smart phone--even though you own them, copyright law restricts you from using them in certain ways, such as downloading certain files from or posting them to the Internet, or showing a television broadcast. (7) As Tom Bell has argued, [C]opyright relies for its very existence on violating property rights--the traditional common-law rights that each of us presumably enjoys in such tangible things as our printing presses, guitars, and throats. (8) Of course, copyright is not the only area of law that prevents people from using their property in ways they would like. In fact, virtually all laws restricting certain types of conduct have the practical effect of preventing us from doing things we might like to do with our property. Traffic laws restrict our use of our automobiles. Environmental laws restrict our uses of land. Laws against murder restrict our uses of knives, guns, and other objects. Are any or all of these laws violations of property rights? Does property ownership grant stronger standing to contest some of these restrictions than others? If so, which ones? To answer these questions, we must first assess the status of the sovereign use principle posited above. Is it analytically coherent? Does it accurately describe the way property rights are instantiated in positive law? Part II of this Article addresses these questions. Section II. …