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Law professor examines property rights in cyberspace

STANFORD -- The concept of "property" may be up for revision in cyberspace, as the rapid expansion of the information superhighway results in a collision between public and private values, according to Stanford law Professor Margaret Jane Radin.

Speaking on Wednesday, March 29, at the fifth annual Conference on Computers, Freedom and Privacy, co-sponsored by the Stanford Law School's Law and Technology Policy Center and the Association for Computing Machinery, Radin said that the development of new communications technology will force a rethinking of property rights in this country and elsewhere. She is a specialist on property law and political philosophy.

The U.S. concept of intellectual property as having only economic value, she said, "should be tempered with a sober understanding of the interaction between market power and political power. American antitrust law originated partly in an impulse toward decentralization of political power. The impulse is a good one."

The Internet is an international community of people who police themselves and orient new members to the rules of using a shared resource. No one owns it, but like grazing land, Radin said, the Internet could quickly become a "tragedy of the commons" where "everybody grabs as much as she can as fast as she can, and the resource becomes overcrowded and useless," Radin said.

One way to protect land in such cases, she said, has been to turn it over to private ownership, "so that the costs of overuse would be brought to bear on the self-interested profit maximizers who own it."

But Radin said that applying such a solution to all of cyberspace would be a tragedy in itself, because the value of electronic communication, like that of land, is not strictly economic.

"Cyberspace is a big place; we ought not to be afraid to draw lines between primarily commercial and primarily non-commercial forms of interactions, even if the lines must be fuzzy. We ought not to be afraid to develop different schemes adapted to different purposes involved. If we can do this, both economic and non-economic interactions will benefit."

Radin, the author of a 1994 book, Reinterpreting Property, explained that the United States simultaneously holds two contradictory understandings of property rights. One regards property ownership as the natural right of every individual to possess an "island or context" in which to live free of unwanted intrusion. This property right, which is applied to land but not intellectual property, has no economic value but is "bound up with one's personhood, one's self-constitution as a unique individual," and his or her ability to maintain freedom, privacy and independence from the government, she said.

The other understanding regards property as a commodity that can be traded, sold or taken by the government for its "fair market value." In this understanding, she said, "the person is a self-interested profit maximizer" and everything that people value -- from a clean environment to bodily organs to sexual or surrogate parenting services -- is capable of being translated into a cash value.

People often regard their homes as having value that is "incommensurable with dollars," she said, but they can still be forced to sell their homes at fair market value if the government condemns them for a freeway. "If you can understand why having to give up your home against your will in return for dollars seems unjust . . . then you can understand how a non-economic paradigm of property coexists with a market paradigm" in our culture, she said.

U.S. laws primarily treat intellectual property as an economic property right, she said. The laws were designed to give copyrights and patents to people with creative ideas so they would have an economic incentive to produce something of value to society as a whole.

Yet poets do not primarily write poetry for money nor do most academics write journal articles with remuneration in mind, Radin said. "Something similar is going on, perhaps, for many of the non-commercial home-page writers and list-posters" on the Internet.

This doesn't mean that people who post information on the Internet choose to let go of their work to the point where it "sinks back into the great unidentified mass," she said. "Its function for personhood seems to require that it keep its identity, by which I mean both attribution to the creator and the integrity of the work."

Copyright laws were created to prevent unauthorized copying of these ideas, she said, but the premise is in "serious trouble" for two reasons:

  • "It seems that copying is endemic to a networked digital world in such a way that trying to prevent it may well cost more than it gains; and perhaps more important,
  • "the thing being copied is hard to pin down. The work doesn't stay put. It metamorphoses as it proliferates."

Because there are no longer "stable enough artifacts to think of as things that cannot be copied," she said, "other methods of rewarding creators of useful works and processes must evolve."

Yet Radin cautioned against proposing the solution of turning all of cyberspace over to private ownership, noting the example of television.

"Right now I think the best way to describe the TV audience is that it consists of a bunch of potential customers that are delivered to advertisers for a fee. The TV broadcasting industry is a commercial fishing industry. When I turn on my TV I am a fish -- a commodity.

"But when I turn on my computer I am not a commodity, or at least not only a commodity. It would be good if cyberspace doesn't turn us into fish."



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