In a discussion on the P2P Foundation’s mailing list the question concerning the Free Software Foundation’s view on property and how they see copyright in relation to property has come up. Below I reproduce a section from the essay, which comes to terms with this, but it is without page numbers and with the footnotes as endnotes and other bits of formatting (especially lost italics for emphases) mangled in the transition from OpenOffice.org to WordPress.
Property and the tangible/intangible divide: a policy of what?
In this section I examine the reasoning behind the particular framing of the intangible realm that characterises information exceptionalism.
Siva Vaidhyanathan, prominent cultural environmentalist and professor of Media Studies and Law at the University of Virginia, writes that “[i]t is essential to understand that copyright in the American tradition was not meant to be a “property right” as the public generally understands property” (2001: 11) and “[c]opyright should be about policy, not property” (ibid: 15) and “[c]opyright is not property as commonly understood. It is a specific state-granted monopoly issued for particular policy reasons” (ibid: 253). Moreover “[c]opyright was a matter of policy, of a bargain among the state, its authors, and its citizens” (ibid: 23) and “Jefferson even explicitly dismissed a property model for copyright” (ibid.).
That copyright is a matter of policy, not property might sound strange to a lawyer or a philosopher trained to understand copyright as a particular instance of property relations with a temporal limit and who understands property as a matter of policy. Some things do not quite add up. Nevertheless, that copyright is a matter of policy, not property, is a point that the founder of the Free Software Foundation, Richard Stallman, together with other advocates of “Free Culture”, wants us to accept1.
Essentially, the Free Software and Free Culture movements reject the concept of property and instead choose to frame issues pertaining to ideas, information and knowledge – or the intangible realm – in terms of freedom, liberty, human rights, policy, intervention, and regulation. Anything but property, but preferably “policy”.
Two mediate questions arise from this position: (i) What is policy? (ii) Why should we choose to adopt one term instead of another? I will answer them in turn.