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and why this concept is relevant to copyright law
The advent of "new property" has had a profound impact on constitutional jurisprudence and is illustrative of a paradigm shift that has affected American political, moral and social thought. Law is not stagnant, it is a dynamic field that deals with changing times—but law does so through analogy and reference to past experience. Understanding how the concept of new property was able to utilize traditional legal thought, even reconcile new thinking with old, will demonstrate the significance of grounding legal arguments about the illegitimacy of copyright extension. Further, the concept of new property provides a blueprint for the legal recognition of the Internet era, and thus the foundation upon which to build the information superhighway.
Justice Brennan's seminal opinion in Goldberg v. Kelly introduced and legitimized the concept of new property in constitutional argument. In Goldberg, the Court declared that a welfare recipient possessed no constitutional right to such benefits. Once given those rights, however, they could not be withheld without evoking procedural due process protection. Basically, decisions to take away an individual's welfare had to be justified.
Brennan's majority opinion quotes Charles Reich's book, "The New Property", which argues that the modern state's ubiquitous nature has become a significant source of wealth. Not only welfare, but government contracts, government jobs, licenses and medical insurance are all a source of government wealth. Once these sources of wealth have been acquired, individuals form the reasonable belief that they have a right to these governmental entitlements and rely upon that right. The guarantee of procedural due process recognizes this reliance interest like it were a property right, and dictates that such a right cannot be taken away without the protection of the law.
At the heart of utilizing the Public Trust Doctrine to challenge the Sonny Bono Copyright Term Extension Act is the notion of protecting the public's reasonable expectations. New property, at its core, shows that society recognizes the reasonable expectations that derive from a myriad of sources—not just those expectations stemming from traditional property rights. The public's reliance on, and expectation of, an unfettered access to the ideas of the past was formed at the metaphorical signing of the "copyright contract" between author and society.
The introduction of the Internet further enhanced and encouraged society's reasonable and fair expectation interest. The low production and distribution costs associated with the Internet, made it possible to efficiently produce for a smaller demand. The Eldritch Press exemplifies this idea. By providing access to books online, the Eldritch Press has been able to meet a heretofore ignored demand, that of the old book enthusiast. For those who see the complexities inherent to the Internet and the extension of copyright, the challenge lies in helping society to see the future with the eyes of the past, much like Justice Brennan did.
| Last modified April 11, 1999. | Berkman Center for Internet & Society |