In Classifying Patent and Copyright Law as ‘Property’: So What?, I noted that some libertarian proponents of IP, like Richard Epstein and Adam Mossoff, try to defend IP by arguing that it “can” be treated like property by a legal system. As I explain there, it is not really relevant whether it “can” or not. Libertarians should not be legal positivists: the fact that a given thing is or can be law is not an argument that it is justified. And in fact, IP is not similar to property rights in scarce resources, as noted by legal scholars such as Tom Bell, Peter Menell, and Wendy Gordon.
The fundamental differences between IP and normal property is also recognized in a recent article by Avihay Dorfman & Assaf Jacob, “Copyright as Tort,” 12 Theoretical Inq. L. 59 (2011) [h/t Gary Chartier].
In these pages we seek to integrate two claims. First, we argue that, taken to their logical conclusions, the considerations that support a strict form of protection for tangible property rights do not call for a similar form of protection when applied to the case of copyright. More dramatically, these considerations demand, on pain of glaring inconsistency, a substantially weaker protection for copyright. In pursuing this claim, we show that the form of protecting property rights (including rights in tangibles) is, to an important extent, a feature of certain normal, though contingent, facts about the human world. Second, the normative question concerning the selection of a desirable protection for creative works is most naturally pursued from a tort law perspective, in part because the normative structure of copyright law simply is that of tort law.