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Appropriating Property



Back in 1987, I went with a friend to see singer Joan Armatrading play Wolf Trap, an outdoor amphitheater in a national park in Virginia. We went early to stake out a good spot and laid out a big blanket. The closer it came to concert time, the more people packed in and we found our blanket covered increasingly valuable space. A couple asked to overlap their blanket behind us and offered us some wine. One group asked to infringe on a corner, and in exchange offered some fried chicken. Finally, by giving up half a foot off our right side my friend snagged some weed. We scored over a tiny piece of land we only temporarily possessed. It wasn't as if we had any right to it. If someone had simply flung their blanket over the area our bodies didn't cover, we could have done little except huff.

Our experience exemplified what French philosopher Pierre-Joseph Proudhon discusses in a mind-blowing book I read last summer called What Is Property? He published it back in 1840. In it, he questioned the notion of ownership and distinguished between property, which we consider a right, and possession, which is a matter of fact. To Proudhon, the concept of property rights was wrong, even though by that time it had become more sacred than the concept of God. No one should be able to own a place they did not occupy, he felt. I read the book free on my iPad because it is in the public domain.

This month we saw how tricky the idea of property rights has become. A group of Internet insurgents known as Anonymous launched what it called "Operation Hiroshima" in protest of a congressional bill called the Stop Online Piracy Act. If passed, it would have allowed the government to go after and shut down websites that violate copyrights and sell counterfeit goods. Members of Anonymous found and published private information about media execs as well as congressional legislators and staff. And the Internet info giants -- Facebook, Google and Wikipedia -- launched their own protests, with dramatic banners and in some cases by temporarily letting their sites go dark.

They feared that what had happened to Megaupload.com could happen to them. The U.S. and New Zealand governments shut down the website Megaupload, which gave users a place to store media such as movies and music, and arrested five people connected with the site. The shutdown left Megaupload users without access to whatever it was they had uploaded.

In a telling quote in a Jan. 13 New York Times article about Operation Hiroshima, an unnamed congressional staffer complained about the privacy invasions, saying "Why can't they just hire a lobbyist like everyone else?"

This is the problem. Those who own property have a hard time understanding the frustrations of those who don't. Those who own property make money off their property, and with that money they can hire lobbyists to convince lawmakers to pass laws to protect that property. Those without property lack the money to hire lobbyists. So they have to find free ways to influence lawmakers to grant them access to property they don't have. 

More and more, the property in question is media property. Rights to the TV show House are far more valuable than any actual house you might own. If I trespass on a physical house police might arrest me. If I use without permission episodes of House, well, that's what is at issue now.

It is hard to feel sympathetic to Fox and Disney and Viacom and the other members of Big Media. They spread their content all over the web so that their movie trailers and posters and ads for TV shows land on our Facebook pages and next to our Google search results and above the news story and in the corner of the television screen. They push their media properties into our faces like candy or chips. Then when we reach out our digital fingers to grab more of the sweet and salty snacks, they suddenly yank them back and want our cash. Not all of us have the cash, but you can't now unwhet that appetite. When we try to consume the media by illegally viewing it or copying it or incorporating it into our own creations, the media companies scream copyright infringement. It is as if someone buys nearly every inch of property surrounding the shack I live in, and then when I cross his land he has me arrested for trespassing.

I'm not saying people shouldn't be able to protect their creations. I'm a writer, after all, and I would like people to pay me for what I write. But I think companies and some individuals have unreasonable expectations of property rights.

In general, most people will willingly pay reasonable prices for media they consume. Just look at Spotify or iTunes. Most people know that with a little effort they can figure out how to get music for free and most likely they won't get caught. But music streaming service Spotify says it has 3 million paid subscribers and millions more pay for music on iTunes.

Our copyright laws are ridiculous. Really, if I create an image or write a story or tune, should I be able to control all use of that for 95 years? That's the length of time the current law gives me. J.K. Rowlings has already made more money than she will ever need off Harry Potter, and Harry has become so popular it is hard to think of a world without him. Maybe there should be a short circuit to public domainship for media properties that become outrageously lucrative -- maybe cut down the copyright time from 95 years to 20 years after the 100 millionth sale.

Or perhaps we need to treat media property the same way we treat traditional property. You want complete control over a story or song you wrote or a movie or show you produced? Maybe you should pay property taxes on it. If I have a rental property I pay income taxes on the rents I bring in, and I pay property taxes as well.  Fox pays property taxes (in theory anyway) on buildings it owns. Why shouldn't it pay taxes on the show House? If no one makes money off the media property, its owner wouldn't pay any taxes, since the taxes would be based on market value.

And as with real estate, you could grant the public easements in exchange for tax write-offs. Perhaps you would let members of the public freely copy an image or use the characters as long as they don't try to earn any money off it. A playwright might grant an easement to schools so they wouldn't have to pay royalties for performances.

With the money from property taxes, the government could invest in media or give money to artists and writers and software developers and indie producers and whatnot to seed creation of new media products and forms. For beloved media, like Thornton Wilder's play Our Town, the government might use the money to purchase public easements so people could consume it for free, as the government does with land for public parks.

I was able to see that Joan Armatrading concert back in '87 because two decades earlier retailing heir Catherine Filene Shouse donated 100 acres of her dog-breeding farm to the public for a national park for the performing arts. All of us who packed Wolf Trap that evening lay blankets down on public land. And we found ways to share it as we listened to great music together.

Marcy Burstiner is an associate professor of journalism and mass communication at Humboldt State University. Since age 10 she has saved for the Smithsonian everything she has ever written. Unless someone wants to pay good money for it first.


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