Notice to the PFF
Just e-mailed this to James DeLong at the Progress & Freedom Foundation:
I enjoy the tussle you and you colleagues at the PFF have with the folks over at the EFF over the issue of IP, and copyright in particular, in the digital age. One aspect of the issue you keep harping at is that both for moral and economic reasons property rights should be defended against those who might use another's property without their permission. You argue that this should apply to intellectual property as well even though it is a non-rivalrous good.
However, as you know, the right to use one's own property can and has been circumscribed by law and statue. Although you may be able to own a gun that does not give you the right to bring it into a school. Although you may own a car, you must obey speed limits. Although a man's house is his castle, he cannot blast loud music all night long.
What I am getting at is the principle that communities have the right and obligation to set up rules on how one can use one's property even if it conflicts with the wishes of the property owner and even if it causes the value of the property to fall or be unrealized. Of course, the laws and regulations set forth can always be influenced by property owners, but property owners do not get a carte blanche say in creating the rules without input from the public or their representatives.
So for instance, I am sure you have heard that the MPAA is laying out to electronics manufacturers what types of DRM and other restrictions need to be in the new HD DVD technologies in order to gain the approval of Hollywood. As you also know, consumer groups or Congress have not been consulted in this process. Now, if you feel that they have no business mettling in what private groups do together, then I guess you'd also have to agree that your local town council has no business restricting what a private developer can do with the property he bought next to your cul de sac should he wish to install a noisy, polluting factory.
But of course developers can't just willy nilly build anything on THEIR land, that is what zoning laws are for. Zoning laws were enacted to give local communities a strong say or even outright veto in shaping what kinds of uses are appropriate for a particular property because it is important to uphold their values in how it impacts their environment and sensibilities. Even if it causes extreme economic hardship, a developer cannot build a fast food joint on land zoned as residential. He must find land elsewhere, possibly in a more isolated part of town that costs more, that is appropriately zoned for the establishment he wants to erect.
What I am getting at is that I believe there needs to be enacted zoning laws for intellectual property that explicity describe what kinds of restrictions the government--as a proxy for the community--can IMPOSE on intellectual property owners. This would go beyond fair use, which is only a defensive mechanism to a lawsuit, and spell out where the interests of the public lie versus the property owner. Moreover, there would be specific prohibitions, just as in zoning ordinances, on what an owner could do with his property unless it was properly zoned. I am not laying out any specifics on how the law would be shaped, but I'd give consumers a prominent seat at the table whenever issues affecting their downstream use (as opposed to the creators) of intellectual property came up.