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The “Common Law Property” Myth in the Libertarian Critique of IP Rights (Part 1)

In libertarian critiques of intellectual property (IP) rights, such as copyrights and patents, it’s common to the hear the claim that “traditional property rights in land” is based in inductive, ground-up “common law court decisions,” but that IP rights are top-down, artificial statutory entitlements.  Thus, the argument goes, property rights in land are rooted solely in court decisions arising from facts of the world, but IP rights are state-created monopolies that mostly serve the interests of rent-seeking special interests exploiting access to unbounded legislatures.

For those who may think that this is an improper characterization of this widespread claim about IP rights need only have attended the “Copyright Unbalanced” event at the Cato Institute on December 6, in which copyright was attacked in precisely these terms.

This oft-made contrast by libertarians between so-called “common law property in land” versus “statutory IP” is a myth that has no basis in the reality of how common law property rights in land evolved in England and then in the United States of America.

This is important, because history is very informative and provides importance evidence for inducing principles in both ethical and political theory, but when myth is passed off as history, these ersatz “historical” claims undermine clear thinking and perpetuate falsehoods.  This is especially important when these mythical claims are advanced in the policy debates, as this misleads commentators and decision-makers about the true nature of our property rights and the true foundations of our political and legal institutions.

With respect to IP rights as property rights, I and others have been explaining in our academic law journal articles for years that these “historical” claims are a myth, but we have focused only on the IP side of the myth.  For instance, I have shown with my substantial research into primary historical documents how the history of patents evolved under the guiding hand of natural rights philosophy, both in America and in England.  I have also explained, contrary to claims by Tom Bell, Jerry Brito and other libertarians, how John Locke expressly endorsed copyright in his writings and positively referred to “inventions and arts” in his natural rights justification of property in the Second Treatise (you can read my article here). Professor Justin Hughes has uncovered similar historical evidence on the side of copyright law (you can read his article here).

But I have never addressed why the libertarian argument advanced by Tom Bell, Jerry Brito and others is entirely a myth even in its claims about the historical legal development of common-law property rights in land (at least not in public, as I have done this in private email exchanges.)

First and foremost, I know it’s a myth because I teach the Anglo-American evolution of property rights in land every year in my Property class (what we call the 1L year in law school).  But I’m not unusual, as this information is in all of the Property textbooks used by property professors in every law school.  As all law students learn each year in their Property classes, the foundation of the “fee simple” in land is not court decisions, but rather a statute passed by Parliament: the Statute Quai Emptores of 1290.  This statute is explicitly identified in all Property textbooks as the foundation of the entire Anglo-American property system in land; as the most famous and widely used property textbook states, “By the end of the thirteenth century, Quia Emptores settled that the fee was freely alieneable,” and thus it explains that it was this statute that first established that “the [originally feudal] relationship between tenant and lord was basically an economic one.”

What followed in the ensuing decades and centuries were more and more statutes enacted by Parliament, further defining the scope and boundaries of many of the rights that constitute property rights in land. Here are just a few of the prominent statutes (there are far too many to effectively list all of them in a blog posting):

Statute of Gloucester (1278) (creating rights against life estate owners by the owner of the follow-on future interest or broader estate)

Statute of Uses (1535) (creating many future interests in land)

Statute of Wills (1540) (securing and creating conveyance rights in land in wills)

Tenures Abolition Act (1660) (eliminating feudal services associated with property rights in land)

Of course, the common law courts extended and applied these statutes, and developed in classic common-law fashion more legal doctrines that defined and further secured property rights in land, but it is simply an historical myth that common law property rights in land were entirely fashioned by courts, contrary to the legislatively created IP rights in patents and copyrights.  (In fact, the English common law system was heavily influenced by the Roman Law and the natural law philosophers working within the Roman Law, and of course all property rights in Roman Law were based in statutes as well.)

This same pattern in the creation and enforcement of property rights in land continued in the early American Republic. For example, early American state legislatures enacted statutes defining and securing the rights of adverse possessors, creating title recordation requirements, defining and securing property conveyance rights, defining and securing wills and the creation of future interests in land, as well as adopting statutes eliminating English common law property rights, such as the fee tail, among many others.  This pattern has continued today; for instance, most states have adopted statutes eliminating the famous property doctrine of the Rule Against Perpetuities (creating much happiness among property lawyers and law students alike), replacing it with a doctrine that goes by the acronym of USRAP (Uniform Statutory Rule Against Perpetuities). Of course, these statutes have all been interpreted, applied and extended in common law fashion by American state courts in the same way that the English common law courts did so with Parliament’s statutes.

In short, the libertarians advancing the false distinction between “common law property in land” versus “statutory IP rights” are misstating what it means when we all say that the Anglo-American property system is rooted in the “common law.”  In the technical sense of this term, the Anglo-American property system is a common law system insofar as courts have developed the law and the rationale for their decisions without having to validate these decisions by reference to a particular statute.  This is in contrast to the “civil law” system in Europe, in which all judicial decisions must ultimately refer back to a statute as the validating source of the judicial decision itself. But to say that the Anglo-American property system is a “common law system” does not mean, of course, that there weren’t statutes that were interpreted, applied and extended by courts, and as a straightforward historical fact there were many statutes enacted by Parliament that defined the foundational rights in Anglo-American property law.  The fact that statutes weren’t mandated by the Anglo-American legal system as an institutional requirement for valid court decisions does not mean that statutes did not play a substantial historical role in the creation and enforcement of property rights in land.

In sum, it’s a complete myth for libertarians to argue that IP rights are “different” from property rights in land because property rights in land developed in “common law” as opposed to “statutory” IP rights.  But it’s even worse than a myth, because this is not a false claim made in the ivory tower in a dispute between academic historians. Rather, this false historical claim is asserted in the policy debates today to advance an anti-IP agenda. Thus, it’s important to call out this misleading historical myth, as it’s being used to leverage misleading attacks on copyright and patents.  I don’t mind engaging in bracing public policy debates about whether IP rights are right or wrong — I love these debates, especially with people who share my own commitment to free market principles — but let’s at least get the basic historical facts correct in these debates.  These are facts that are not in dispute and are well known, including even to the libertarians who survived their 1L Property classes in law school and are now speaking on these issues in the academy and in think tanks.

(In my next blog posting on this topic, I’ll address how there was the exact same interplay between statutes and common law decision-making in the courts in the development of patent and copyright law.)

UPDATE: For Part 2, see here.

UPDATE: I made a few, minor copy-edits to this posting.

Filed under: truth on the market