Kevin Werbach takes issue with my post yesterday on the Free Culture Movement, arguing that successful open source projects are indeed based on property rights because they depend on well-defined software licenses.

His point has some merit. The open source movement has several branches. Some of these are hospitable to a regime that is partly private and partly public, a rough analogy to the physical world, in which we depend on a mixture of private lands and a commons infrastructure of roads, communication rights-of-way, and other public facilities. In the software area, the Berkeley Software Development license would fall into this camp.

Other parts of the movement are not hospitable to property rights. The Free Software Foundation is dedicated to the idea of using property rights in the form of the "copyleft" General Public License to undermine copyrights in proprietary software -- a sort of ju-jitsu trick.

Lessig's Creative Commons is a neat attempt to bridge these gaps, providing licenses for every ideological taste. It is a very useful enterprise.

In my view, the Free Culture Movement in general tends to be overwhelmingly tilted toward the FSF view and much too little inclined toward the BSD. Nor does it recognize the importance of property rights in spreading ideas and culture, a point made in a recent article by R. Polk Wagner. However, I would be delighted to be proven wrong in this judgment of the FCM.

I take umbrage at Werbach's characterization of me and my ilk as "copyright maximalists." It is clear as a matter of historical experience and common sense that property rights get cut and trimmed to fit the technological and transaction-cost realities of the age. This is inevitable and proper -- my book Property Matters: How Property Rights Are Under Assault and Why You Should Care (1997) devoted several chapters to this theme. (You can buy it for a buck and a half on Amazon.) Harold Demsetz looked at this issue in his classic 1967 article, Toward a Theory of Property Rights.

The Internet is creating new technological and transaction-cost realities, and property rights are getting cut to fit, sometimes with a razor and sometimes with a meat-ax. This is both good and bad, and I have been on both sides of the issue. For example, I have defended both the music industry and the music downloaders within the space of 1,000 words, which is a pretty good trick.

Take another example: Should I have linked to the Demsetz article in the above paragraph? It is a link to the American Economic Review, which is a copyrighted publication. My view is that if Google finds it, I can link to it. If the linkee does not want this, it has the responsibility of protecting itself. The transaction costs of any other property regime are too high. In the Montana of the 19th century, the farmers had the responsibility of fencing their fields to keep the cattle out; it was not the ranchers' duty to fence in the range. I am also influenced by fair use considerations in the context of a political discussion, and by the impossibility of accessing the article even for payment. But the AER might take a different view of finding my cattle in its field.

Finally, contrary to the claims of the FCM, the trend in copyright has not been a one-way road to expansion. As a former Register of Copyrights pointed out:

"During the past 90 years, to solve political controversies and to hand out economic freebies to sympathetic supplicants, Congress has sweet-talked authors into giving up their right to say yes or no to a use of their works -- the essence of a property right -- in exchange for a longer term. A long list of special pleaders now gets free use of copyrighted works, including small businesses, veterans' groups, bars, scholars, restaurants, fraternal groups, marching bands, Boy Scout troops, nursing homes, libraries, radio broadcasters and home tapers. Another long list of powerful industries gets to use copyrighted works in exchange for a small government-set fee, whether the author likes it or not: cable and satellite companies, record companies, juke-box operators, public broadcasters and, most recently, Internet companies."
(Ralph Oman, Letter to Editor, Washington Post, March 11, 2002, p. A20.)

The FCM should be making important contributions to the process of redefinition, but so far what we hear from it is why property rights are bad, in whatever context happens to be under discussion at the moment, except, perhaps, for the spectrum problem mentioned by Werbach. The FCM should be on both sides of the issue - "here is where rights should be trimmed, and here is where they should be expanded."