In the Critiquing Copyright Canards piece, the eighth myth was that “Copyright is not a property right.” I understand that some long for a commons culture, and thus oppose all property as did Robert Owen, the founder of the failed Utopian community New Harmony in Indiana. They, naturally, will resist copyright as a property right. But the fact is that the Founding Fathers, following in the footsteps of their philosophical guru John Locke, recognized that property can come from one’s own labor, and they ensured that labor would come with rights. James Madison even convinced Thomas Jefferson, a man who today would likely be part of the Free Culture movement, of the merits of copyright.

I’ve long been frustrated by how little respect some show for a creator’s property rights. People who would never trespass on someone else’s land — or shoplift a CD or DVD or book or videogame — routinely lift those for free online, somehow believing that it’s not okay to steal plastic or paper but it is okay to steal the creation of someone’s mind and hands. After all, the same creativity went into the physical and non-rivalrous version of the work. But what is most troubling is that there are activists seeking to erode or eliminate the property rights of creators, and these activists seem to actually believe they are acting in the best interests of artists.

They are wrong.

A few years ago I wrote a paper expressing concern about this Nirvana known as compulsory licensing (see Canard #6). Regular readers know how appalling I find this taking of rights; it’s no different from eminent domain, which is often a disaster, although at least when the government steals physical property they pay a market rate and move on, as opposed to a compulsory licensing regime, in which the government either directly or through a charter expects to collect fees, which will always be below market rate.

The paper I wrote compared this seizure of property rights to what we did to Native Americans, and chronicled a struggle lasting more than a century to have Native Americans properly compensated for the seizure and continued use of that land. (Note there it is very similar to a compulsory licensing regime, the government makes use of the land and then has sole power to determine ongoing compensation.) “Why Government Can’t be Trusted with Trust Funds: A 118-Year-Old Case Study Highlights the Dangers of Compulsory Licensing” gave me some pause before publishing, because the plight of Native Americans and real and has cost lives, but the analogy of unwelcome loss of rights is a real one.

This analogy came back to me recently when reading John Meacham’s “American Lion: Andrew Jackson in the White House.” (Like his last book, “American Gospel,” the book is well researched and has occasional brilliant turns of phrase, but it seems to spend too much time showing off his research, for example spending chapters on the scandalous reputation of the War Secretary’s wife and how this divided Washington. But I digress.)

Andrew Jackson had fought side by side with Native Americans. He had a strong respect for their character, bravery and fortitude. But he felt that civilization (the white man’s world) was crowding them out, at least those in the Northeast and South. There wasn’t sufficient land to allow Native Americans to continue to live as they preferred, he felt. He wanted to give them a better life.

Note a few things here. One, the “progress” he saw was important enough to him that it should supplant a people’s rights. In no way should growth of white civilization adjust to accommodate those already there. Two, he felt he had a right to determine how another people should live. Three, he believed he was acting in their best interest.

He did negotiate a voluntary departure to Oklahoma with some Native Americans (through tough political leveraging), but most Native Americans lobbied to the bitter end in opposition. And it’s understandable. Why should they be forced from their home of generations, where there was fish and hunting and a good quality of life, to move to a place they had never been? Why should their women and children have to march a thousand miles? They had to do it because of progress. A new era had dawned, and there was no room left for Native Americans.

I thought about the plight of Native Americans a lot growing up. My home state, Arizona, is close to 90% owned by the government, and much of that is in trust to Native Americans in the form of reservations. The Native Americans in Arizona weren’t forced to that part of the country, but they weren’t stuck in certain sections of land, for the most part, as most of the tribes were nomadic (you would be too in a desert). I would read of the high alcoholism rates and the low literacy rates, and feel shame on the part of my ancestors that this had been permitted to happen.

Are artists being rounded up and marched to Oklahoma? No, although there are a lot of artists in Oklahoma, you can see that on our interactive map. But this analogy is important as it serves to show the dangers of one’s hubris, where you take “progress” as a priority over all else, where you feel you have the right to dictate to others how they will live and behave (or what business model they’ll pursue), and when you think you have someone else’s best interests at heart.

They have their best interests at heart. Listen to them.

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This entry was posted on Tuesday, March 17th, 2009 at 2:51 pm by Patrick Ross and is filed under copyright law, copyright opponents, founding fathers, licensing, p2p, piracy, property rights. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.