from On the Commons
by David Bollier
The pantheon of property law generally honors the great virtues of private ownership — while making the case that the public benefits from such arrangements.
Unfortunately, the benefits to the public are often more nominal than real. Drug makers frequently use their patents to extract exorbitant prices for life-saving drug compounds. Tech companies claim exclusive rights to common “business methods” and mathematical algorithms embedded in software. The record and film industries have expanded their copyright monopolies in numerous ways at the expense of the public domain and fair use rights.
As practiced, in short, property law tends to expand private prerogatives and suppress public benefits. Its priorities — to turn ownership into money — often trump those of democracy, community, free expression and life outside of the marketplace.
For example, property law conveniently ignores the role of the commons in adding value to private ownership. Its champions generally fail to acknowledge the public system of law that enforces all those private contracts; the social trust engendered by regulation which in turn enables markets to function well; the ecological commons that are used as free waste dumps; and the civil infrastructure of roads and bridges that enable commerce to take place in the first place.
So private property rights are extolled as the most powerful engine for “progress.” — and soon the idea takes root that the stricter and more absolute those rights, the better.
It is the conceit of a new book, Property Outlaws, that the dissenters to this catechism play an invaluable role in making property law more socially responsive and functional. Or as the subtitle of the book puts it, “how squatters, pirates and protesters improve the law of ownership.” Property Outlaws is the rich, neglected history of conscientious objection to property law.
The authors, Eduardo Moisés Peñalver and Sonia K. Katyal, are professors of law at Cornell Law School and Fordham Law School, respectively. In their telling, the people who challenge the broad scope of property laws through deliberate protests are a highly useful and indeed, honorable force for good. They are the ones who have shown great personal courage in forcing property law to become more responsive to evolving norms. They are the ones who dare to assert that property owners have certain affirmative responsibilities to larger social and democratic values. continue reading at onthecommons.org