Property Outlaws

Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership

Eduardo Moisés Peñalver
Sonia K. Katyal
Copyright Date: 2010
Published by: Yale University Press
Pages: 288
https://www.jstor.org/stable/j.ctt1nq0pt
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  • Book Info
    Property Outlaws
    Book Description:

    Property Outlawsputs forth the intriguingly counterintuitive proposition that, in the case of both tangible and intellectual property law, disobedience can often lead to an improvement in legal regulation. The authors argue that in property law there is a tension between the competing demands of stability and dynamism, but its tendency is to become static and fall out of step with the needs of society.

    The authors employ wide-ranging examples of the behaviors of "property outlaws"-the trespasser, squatter, pirate, or file-sharer-to show how specific behaviors have induced legal innovation. They also delineate the similarities between the actions of property outlaws in the spheres of tangible and intellectual property. An important conclusion of the book is that a dynamic between the activities of "property outlaws" and legal innovation should be cultivated in order to maintain this avenue of legal reform.

    eISBN: 978-0-300-16123-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. PREFACE
    (pp. vii-x)
  4. INTRODUCTION
    (pp. 1-20)

    At 4:30 p.m. on Monday, February 1, 1960, Ezell Blair Jr., Franklin McCain, Joseph McNeil, and David Richmond—all freshmen at the North Carolina Agricultural and Technical State University (North Carolina A&T)—walked into the cafeteria at the Woolworth’s store in downtown Greensboro, North Carolina. They sat down at the counter and quietly waited for service. They received none. Blair, McCain, Mc-Neil, and Richmond were black, and Woolworth’s, like all the department stores and restaurants in Greensboro, followed the local “custom” of refusing to allow black patrons to sit down to eat at the lunch counter. Although they received no...

  5. Part I. Foundations

    • 1 WHY PROPERTY OUTLAWS?
      (pp. 23-35)

      We are not the first to observe the role of intentional lawbreaking in fostering valuable legal change. Legal theorists have long left some space for the occasional disorder created by conscientious civil disobedience. Two aspects of this literature, however, are of particular interest to us. First, these discussions typically fail to distinguish among the various substantive areas of law on which the mechanisms of intentional lawbreaking might operate. Second, with a few notable exceptions, they tend to disfavor or condemn what we are calling “acquisitive” disobedience. In this chapter we address the first of these issues. Later in the book...

    • 2 PROPERTY AND INTELLECTUAL PROPERTY
      (pp. 36-52)

      In February 1996, in Davos, Switzerland, John Perry Barlow, a cattle rancher and former lyricist for the Grateful Dead, sat down to write Declaration of the Independence of Cyberspace, largely in response to Congress’s passage of the Telecommunications Act of 1996, one of the first major legislative attempts to govern the Internet. “Governments of the Industrial World, you weary giants of flesh and steel,” he began, “I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone.” “Governments derive their just powers from the consent of the...

  6. Part II. Property Outlaws and Intellectual Property Altlaws

    • 3 ACQUISITIVE OUTLAWS: THE PIONEERS
      (pp. 55-63)

      The history of land law in the nineteenth-century American West is, in part, one of protracted conflict between those who held legal title, whether Native American tribes, the federal government, or private land speculators, and white settlers who resided on the land, often without any formal legal entitlement. This story is well known and has been ably narrated by a series of historians.¹ Our purpose in this discussion is therefore not a comprehensive retelling. Instead, we hope simply to bring out the ways in which this struggle replicates a pattern of legal change instigated by property outlaws, one that that...

    • 4 EXPRESSIVE OUTLAWS: CIVIL RIGHTS SIT-INS
      (pp. 64-70)

      Prior to the 1960s, the civil rights movement was focused largely on achieving legal change through a sophisticated litigation program in the federal courts directed by the NAACP. Congressman John Lewis, who made his start in public life as a student leader of sit-ins in Nashville, characterized the NAACP-led strategy as relying on “a handful of lawyers [working] in a closed courtroom.”¹ Students in Greensboro, North Carolina, however, dramatically shifted the focus of the movement when they began sitting in at segregated lunch counters in February 1960—protests that were quickly replicated by student groups across the South.² Within weeks,...

    • 5 PROPERTY OUTLAWS AND PROPERTY ALTLAWS
      (pp. 71-89)

      In September 1999, Jon Johansen, a teenager from Norway, grew frustrated that he couldn’t watch DVDs on his computer. Johansen’s computer was running on the Linux operating system, which had not been licensed by the motion-picture industry to play DVDs.¹ To protect their movies from piracy, the studios relied on a digital rights management system called a Content Scramble System (CSS), an encryption algorithm that scrambled the data on a DVD and used a system of “keys” for decryption and authentication, thus enabling a user in possession of the “keys” to “unlock” the contents of a DVD. The studios licensed...

    • 6 ACQUISITIVE ALTLAWS: THE TREATMENT ACTION CAMPAIGN, PATENTS, AND PUBLIC HEALTH
      (pp. 90-108)

      Patents, like copyrighted works, occupy a delicate intersection between public and private property interests. But, in addition to the utilitarian bent of much of intellectual property law, at least part of the justifications for frequently offered patent protections stem from Lockean theories that focus on the desire to reward inventors: the law establishes a proprietary system of protection, giving the patent holder a quasi-monopoly right to price the invention, which, in turn enables him or her to exclude others from using the same invention for a limited period. Perhaps as a result, our system of patent protection is robust: patent...

    • 7 EXPRESSIVE ALTLAWS: COPYRIGHT AND THE NEW LIBERATION OF INFORMATION
      (pp. 109-122)

      In January 2003, a woman named Bev Harris came across, through Google, a Web site that contained a cache of user manuals, software patches, and the complete source code for the voting machines made by Diebold Election Systems, one of the leading manufacturers of electronic voting systems in the United States.¹ It was an unexpected—and incredible—find. Harris was writing a book about ballot tampering and had found the material on an unprotected Web site. After realizing what the material was, she immediately posted it to her Web site. The sheer volume of the material, not to mention its...

  7. Part III. Responding to Property Outlaws

    • 8 TWO PERSPECTIVES ON PROPERTY OUTLAWS
      (pp. 125-142)

      In part 2, we described several cases in which property disobedience yielded important shifts within existing legal regimes governing property and intellectual property. In this part and the next, we explore the ways in which the law responds to property disobedience, both for better and for worse. Along the way, we point to several doctrines that seem to recognize the value of leaving some space for property disobedience and suggest some ways in which the law (especially the law of intellectual property) might be changed in order to encourage productive disobedience while continuing robustly to protect rights of private ownership....

    • 9 RESPONDING TO PROPERTY OUTLAWS
      (pp. 143-166)

      Our principal purpose in this book has been to highlight the importance of certain categories of intentional property disobedience to the evolution of property law. In particular, we wanted to bring to the forefront two neglected values generated by some intentional property disobedience—what we have called its redistributive value and its informational value. Given the power of these two values, we argue for a reconfiguration of sanctions in certain contexts. This does not mean that sanctions are always (or even usually) inappropriate; indeed, as we argued in the context of our discussion of expressive outlaws, the expressive outlaw’s willingness...

  8. Part IV. Responding to Intellectual Property Altlaws

    • 10 THE INFORMATIONAL VALUE OF INTELLECTUAL PROPERTY DISOBEDIENCE
      (pp. 169-182)

      In January 2006, Larry Downes, at the time the associate dean of the U.C. Berkeley School of Information Management and Systems, proclaimed in an influential column that, even though the U.S. Supreme Court had recently ruled in favor of the recording industry in an important case involving peer-to-peer file sharing, “copyright is effectively dead.” “Any law that is ignored by nearly every young adult in the country,” he observed, “is no law at all.”¹ His argument was, in part, supported by a study that found that 72 percent of Americans between eighteen and twenty-nine years old “do not care whether...

    • 11 RESPONDING TO ACQUISITIVE ALTLAWS
      (pp. 183-207)

      In part 3 we outlined a variety of different approaches that the law might take in responding to property disobedience in the context of tangible property. How we described those responses depended on whether we approached the question from a utilitarian or nonconsequentialist perspective. In the intellectual property context, our analysis would similarly differ. For a variety of reasons, however, this distinction looms less large in the intellectual property context, where utilitarian considerations often predominate. Nevertheless, when it becomes relevant, we will distinguish between these two broad approaches, identifying situations in which favoring one or the other lens could make...

    • 12 RESPONDING TO EXPRESSIVE ALTLAWS
      (pp. 208-226)

      In 2003, a little-known disc jockey by the name of Brian Burton, also known as Danger Mouse, came up with a unique idea: mixing the Beatles’White Albumwith the contemporary vocal sounds of the recently releasedBlack Albumby the artist Jay-Z.¹ After methodically sampling and combining the beats, rhythms, and lyrics from the two works, Burton produced an innovative combination of the two albums, which he then titled, quite aptly,The Grey Album.² Danger Mouse knew that the album would never be commercially released, because of the unlicensed use, but he believed that it was still worth the...

  9. CONCLUSION
    (pp. 227-240)

    It was January 20, 2004, when Gavin Newsom, the young, charismatic mayor of San Francisco, went to Washington, D.C., to attend the State of the Union address. As he sat in the audience, he heard George W. Bush proudly praise the Defense of Marriage Act, a federal law that bars federal recognition of same-sex marriages, proclaiming the need to “defend the sanctity of marriage . . . as a union of a man and a woman.”¹ In his speech, President Bush announced a plan to go even further, and proposed a constitutional amendment to ban gay marriage.

    Newsom found himself...

  10. NOTES
    (pp. 241-284)
  11. INDEX
    (pp. 285-294)