VESTED USE-PRIVILEGES IN PROPERTY AND COPYRIGHT.

• Author: Newman, Christopher M.
• Position: Symposium: Intellectual Property and the New Private Law

TABLE OF CONTENTS I. INTRODUCTION 75 II. VESTED USE-PRIVILEGES IN PROPERTY 78 A. Hohfeldian Specification of the Sovereign Use Principle 78 1. Defining "Use-Privilege" 78 2. Defining "Vested" 80 B. Vested Use-Privileges as Recognized Property Interests 81 1. Ownership of Use-Privileges Without Rights To Exclude 81 2. Is the Sovereign Use-Privilege Vested? 82 III. VESTED USE-PRIVILEGES AND COPYRIGHT 87 A. The Object and Scope of Ownership in Copyright 87 B. Analysis of the Copyright Holder's Exclusive Rights 89 1. Performance Rights 89 2. The Reproduction Right 90 3. Distribution and Display Rights 92 4. Moral Rights 95 IV. CONCLUSION 95 I. INTRODUCTION

Despite the best efforts of a few generations of law professors and Supreme Court justices, the claim "If it's mine I can do whatever I want with it" continues to exert a strong normative pull in our culture. (1) I shall dub this claim the "sovereign use principle." This principie 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 "right to exclude." (3) This latter claim can be restated colloquially as "If 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 "If it's mine, I can do what I want with it," they also assert its logical corollary: "If 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.A explains in Hohfeldian analytical terms what it means to have a vested use-privilege. A use-privilege is an interest denoting the absence of any duty to consult the discretionary preferences of others in deciding how a resource is to be used. The interest is said to be vested when the privilege owner enjoys immunity from expropriation absent consent or at least compensation. Section II.B examines the extent to which vested use-privileges exist in practice as cognizable property interests, concluding that they are well-established and protected in private law but that current regulatory takings doctrine leaves use-privileges with insufficient protection to qualify as vested. This discussion includes an attempt to articulate formal criteria to distinguish between rights claims properly characterized as affirmative assertions of discretionary control over the used property, and ones that defensively assert the claimant's own countervailing right of noninterference in his or her own property interests.

Part III applies this framework to analyze the exclusive rights conferred by Section 106 of the Copyright Act (9) and concludes that the exclusive rights to perform and reproduce copyrighted works, while restricting personal liberty, do not constitute claims of discretionary control over identified chattels so as to violate the sovereign use principle. Exclusive distribution and display rights, on the other hand, as well as the rights against mutilation and destruction granted by the Visual Artists Rights Act ("VARA"), (10) are the functional equivalent of appurtenant servitudes on specified chattels. This finding is consistent with the fact that the first-sale doctrine, which serves to reduce the servitude-like effects of exclusive rights, applies only to distribution and display.

The Article thus has two main purposes: It attempts to make a contribution to private law and property theory by providing a formal account of use-privileges as property interests distinct from any right to exclude. It also seeks to advance discussion of the relationship between tangible property law and copyright, both by showing how analogies drawn from the former can illuminate our understanding of the latter, and by considering to what extent the rights protected by copyright undermine tangible property interests.

2. VESTED USE-PRIVILEGES IN PROPERTY

   1. Hohfeldian Specification of the Sovereign Use Principle

      1. Defining "Use-Privilege"

         What does it mean to assert "If it's mine, I can do whatever I want with it"? To describe with precision what this claim means when translated into a set of legal entitlements, this Article adopts the analytical terminology proposed by Wesley Hohfeld, which divides the world of jural relations into four possible sets of contrasting correlative pairs. (11) In these terms, a first cut at restating the sovereign use principle might be: "Title to a thing includes the privilege to engage, or to refrain from engaging, in any use of which the thing is susceptible." In Hohfeld's system, a "privilege" is the opposite of a "duty," and the correlative of a "no-right." (12) A privilege to do X is thus the negation of a duty to refrain from doing X. Accordingly, the sovereign use principle would appear to assert that ownership of a thing entails an absence of any duty either to engage in or to refrain from engaging in any uses of which the owned thing is susceptible. When stated this way, the asserted privilege clearly requires some qualification if it is to correspond to anything actually existing in our legal system. There is no such thing as an absolute privilege--in other words, a legal entitlement to take action X such that doing so cannot possibility violate any duties owed to anyone else. (13) Even the most diehard proponent of the sovereign use principle understands that there are many things you are not allowed to do even with the objects you own. As the saying goes, "Your freedom to swing your fist ends just where my nose begins." (14) You cannot assert that others should respect your property rights without agreeing that your own freedom of action is properly limited by their property rights. Because of this seeming impossibility of identifying any actions that one has an unqualified privilege to take, it may appear pointless to conceive of use-privileges as vested entitlements, which is likely part of the reason why it is common to gravitate toward the "right to exclude" principle alone as defining the essence of property.

         Actually, Hohfeld's system provides a fairly straightforward answer to this objection. To speak of "absolute privilege" is to forget that Hohfeld's system is one of bilateral jural relations. (15) Every right possessed by A must correspond to some defined duty possessed by some dutyholder B. (16) By the same token, any privilege possessed by A must correspond to some defined no-right possessed by some person B. (17) The privilege conferred by property ownership does not purport to negate the existence of any conceivable duties owed by the property owner to others that may restrict her use of the owned thing. It purports only to negate one specific duty: the duty to comply with the discretionary preferences of others as to how the owned thing will be used. Even under the sovereign use principle I may well be able to raise a legally valid objection to your use of your property--it's just that this objection will have to be justified by something other than the phrase "I want that thing to be used differently." Only the owner has the right to say "I want that thing to be used in this way and not that way," and have this expressed preference impose a duty on others not to engage in uses that violate those preferences. The non-owner has no right to do this--or rather, as good Hohfeldians we should say affirmatively that he has a no-right to do this. The correlative of this no-right is the owner's use-privilege, and our precise definition of the former also defines the scope of the latter. Rather than "If it's mine, I can do...