While I generally like Andrew’s journalism, I have to point something out as simply incoherent in his defense of Rand Paul’s appearance on Rachel Maddow.

Specifically, I’m referring to his statement “But was the Act in many respects an infringement of freedom? Of course it was.”

Well.  Yes, of course the CRA was an infringement of restaurant and hotel owner’s freedom to discriminate against their customers.  But not passing it would have been an infringement of freedoms too (or more correctly giving license to an ongoing infringement).

Let’s take it away from the ideologically loaded sphere of discrimination for a brief hypothetical.  Let’s say I own a piece of property.  My neighbor has an easement allowing him to walk across it without my permission.  Isn’t that easement an infringement of my freedom to do what I want with my property?  At the same time, were we to legislatively terminate his easement, isn’t that an infringement of his freedom to walk across my property?

Now, as a thought experiment, let’s say that the CRA set of rules barring such discrimination was our baseline.  Essentially, let’s assume we live in the world we live in today.

Let’s consider what would happen if we were to repeal the CRA.

Would it be any less an infringement of freedom to repeal it, infringing on private people’s freedom to choose the restaurant or hotel that they desire to eat in or stay at?  It’s an infringement of freedom to use coercive government force to prevent discriminatory choice by proprietors of institutions.  It’s equally an infringement of freedom to use coercive government force to enforce these discriminatory choices (by way of lending its authority to the choice of a property owner to expel such a customer).

I don’t pretend this is a particularly new insight; it isn’t.  It’s been written about for nearly a hundred years – see Robert Hale’s “Coercion and Distribution in a Supposedly Non-Coercive State” for an example (which was written in response to an early essentially libertarian viewpoint).  But to pretend that the CRA somehow increased the amount of government coercion going on simply ignores the baseline problem.  To make that assertion requires assuming that the infringement on freedoms that the “initial” state of affairs requires in order to operate are not, in fact, infringements.

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Rights-holders will tell you that a statutory license (also known as a compulsory license) is an infringement on their sacred property rights in their creative work.  I mean, of course they will – it hurts their economic interests to have one of their rights taken away from their own control and placed into federal government control, right?

Not exactly.  That viewpoint relies on the assumption that they have that right inviolate prior to the statutory license.  In the case of copyright, that viewpoint is often false as a matter of law – the rights in intellectual property explicitly being granted by the federal government (or, prior to 1972 for sound recordings, by the states), those rights often did not exist prior to grant, and as such if the grant is accompanied by a statutory regime for licensing, the characterization placed by rights holders of one of their rights being removed from their control is inaccurate.

However, when the right was a pre-existing grant, or an implied right that originates from some other explicitly recognized right, the characterization looks a lot better.  And when we cast it in the parlance of property, that some right of value to the right-holder is being taken away from them, our sympathy increases.

Should it?

It is not, I think, a new insight that property is no less a set of rights granted by the government than intellectual property.  I first ran across the notion in 1930s pieces by Robert Hale (Coercion and Distribution in a Supposedly Non-Coercive State), discussing the coercive nature of property, and Morris Cohen (Property and Sovereignty), discussing the idea that property is not about rights over things but rather rights against others regarding things.  In this sense, all property is intellectual property – the ability to make some use of your property does not convey you the right to use it in that way (copying a copyrighted work, or creating a nuisance on your land), nor does having the ability to prevent others from using your property allow you to do so legally (DMCA exceptions to technological measures, the defense of necessity in trespass).  All property rights flow not from ownership of the piece of property, but from recognition by the coercive authority that such rights exist.

So, if we have this notion, that property both real and intellectual is not inherent, and that the two are equally created notions flowing from coercive authority, why is it we can create a statutory licensing regime for intellectual property but not real property?

I can offer two reasons.  First, we do, in fact, create statutory regimes in real property.  We are willing to create zoning ordinances that necessitate allowing certain uses of ostensibly private property.  We have a Takings Clause that is, essentially, statutory licensing of the coercive sale of land and its valuation in cases of sale to the government, and a Due Process clause that denotes the procedure for modification and removal of property rights.  The primary reason we limit statutory licensing of real property is because of resource contention issues (analogous to the tragedy of the commons) – unlike intellectual property, there is one and only one piece of land at 1776 Sovereignty Lane.  However, as noted, some limited statutory license regimes against real property do exist.

Second, we lack guidance, if not authority, in the case of real property.  Unlike intellectual property, we lack some equivalent to the Intellectual Property Clause, to guide us in *why* we might limit these rights.  Arguably other clauses of the Constitution provide this guidance – if nothing else we must try to “promote the general Welfare” – but none in quite so clear a relation as that in the IP Clause gives us.  We are reluctant enough (albeit partially because of the absolutist perception of property we attach to intellectual property) to limit the rights in intellectual property based on promotion of progress; much less so when we don’t have that clear a goal with respect to real property.

A side note: we are less reluctant to consider such exemptions in the case of trademark law and patent law, though still reluctant, than we are in the case of copyright law.  A possible reason for the greater willingness to provide exemptions in trademark and patent is that these are explicitly based in economic incentives (although trademark is derived from consumer confusion rationales, those rationales are themselves derived from an economic basis – the desire to increase commerce by allowing trademarks to serve a valuable signaling function, a function which is eliminated in the event of widespread trademark infringement).  Where the economic rationale is the reason we protect the right, we readily accept economic rationalizations for limiting the rights.  Contrast that with copyright.  Although we say copyright is economically motivated, that’s only a first level analysis.  We often dress up moral rights for authors in economic terms, and the goal explicitly stated in the Copyright Clause is not to maximize value to the creators of “Science”, but rather to promote the “Progress of Science”.  We attempt to maximize creation (and yes, creation can also be categorized economically – but in doing so, we potentially run into a version of the utilitarian moral monstrousness problem).  As a result, explicitly economic motives often ring false, especially when they seem to cut against creation of new works.