Wendy J. Gordon

A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property.

102 Yale L.J. 1533, 1540-78 (1993)



A. Natural Law

This Article takes as its organizing principle John Locke's theory of natural law, n31 and, in particular, his argument that labor provides a foundation for property. n32 Locke's work influenced the framers of our Constitution n33 and continues to influence contemporary courts. In 1984 the Supreme Court cited Locke when it held that intangible "products of an individual's 'labour and invention'" can be "property" subject to the protection of the Takings Clause. n34 Similarly, other courts have extended common law protection to intangibles on the Locke-like ground that no entity should "reap where it has not sown." n35 Locke's labor theory of property and allied approaches n36 have been used so frequently as a justification for creators' ownership rights n37 that Locke's Two Treatises have been erroneously credited with having developed an explicit defense of intellectual property. n38 Given that versions of labor theory are so often touted as support for giving creators strong intellectual property rights, Lockean theory deserves closer examination than the intellectual property courts have given it so far. Such an examination will show that Locke's theory has much to reveal about when property in intangibles should not be granted.

[*1541] Locke tells us that in the state of nature there is no positive law parceling out ownership or giving any particular person the right to command anyone else. n39 There are, however, moral duties that constrain persons' behavior toward each other. n40

Locke argues that these duties are imposed by God and are discernable by reason. n41 The state of nature differs from civil society primarily because the former lacks judges who can give binding interpretations of the law of nature to resolve individuals' conflicting claims. n42 People form civil society precisely because its authorities n43 will provide a security for natural rights which is unavailable in the state of nature. n44

Since all humanity is equal in the state of nature, the duties we owe others are also the duties they owe us, and the rights I have against others they have against me. n45 One can discern in Locke's theory two general classes of rights: liberty rights (areas free of duty) n46 and claim rights (areas where the right-holder [*1542] is owed a duty by others). n47 Using these two classes, one can identify four general sets of natural rights and duties particularly relevant to our discussion. n48

First and foremost, all persons have a duty not to harm others, n49 except in some cases of extreme need. n50 This right not to be harmed is lexically prior to the other natural rights; thus, except in cases of extreme need, the no-harm duty would prevail in any conflict arising between the no-harm duty and the other natural laws mentioned below. Second, there are two key liberty rights: 1) all persons have a liberty right to dispose of their efforts as they see fit, n51 and 2) all persons have a liberty right to use the common n52 -- "the earth and all its fruits" -- which God gave to humankind. n53 These two liberty rights mean that, at least in the absence of extreme need, the law of nature gives no one a claim right over any other person's nonharmful use of her own efforts, or her nonharmful use of the common. Third, all persons have two central [*1543] duties in regard to their resources. Each person has a duty to let others share in her resources (other than her body) in times of great need, so long as the sharer's own survival is not imperiled by such charity, n54 and each has a duty to share any of her nonbodily resources which would otherwise spoil or go to waste. n55 Fourth, all persons have a duty not to interfere with the resources others have appropriated or produced by laboring on the common. n56 This duty is conditional, and is a keystone in the moral justification for property rights. n57

Taken together, these duties and liberties generate moral claims n58 and entitlements. Of these, some we possess by virtue of what we do, and some we possess by virtue of our humanity. n59 Of the humanity-based entitlements, three are most important: our claim right to be free from harm, n60 our claim right to have a share of others' plenty in times of our great need, n61 and our liberty right to use the common. n62 We might call these three unearned rights "fundamental human entitlements." n63

[*1544] As individuals we can take actions that cause us to deserve more or less than these fundamental human entitlements would dictate. Most notably, if we work productively, our labor may entitle us to own more goods than less industrious people are entitled to have. n64 But by our own actions we cannot give ourselves a right to impair others' fundamental human entitlements. We cannot "earn" a right to harm others, n65 or a right to impair their access to the common. n66

This Article seeks to answer a basic question at the heart of Lockean natural law: what happens when a conflict arises between fundamental entitlements of the public, and the moral claims that a creative laborer possesses by virtue of having created an intellectual product? The next two Sections, B and C, will describe respectively the laborer's claims and the public's entitlements. Section D will present the correct method for resolving conflicts between the two types of claims.

B. The Laborer's Claims

The law of nature summarized earlier suggested that property could arise in the state of nature when someone labors on the common, either by appropriating from it directly -- drawing water from a stream, picking apples from a wild tree -- or by making something from it. This Section suggests that the ethical structure of Locke's argument has persuasive power even for a secular ethicist who does not share Locke's theological premises. The Section then defines the various entitlements that constitute conventional property and investigates the extent to which the creator of intangible products in the Lockean system might have a natural-rights claim to possess these entitlements in regard to her creations.

1. The Harm-based Structure of Locke's Argument for Property

Locke's property theory has many strands, some of which are overtly utilitarian and others of which draw on varying notions of desert. n67 To the extent that his theory purports to state a nonconsequentialist natural right in property, it is most firmly based on the most fundamental law of nature, the "no-harm principle." The essential logic is simple: Labor is mine and when I [*1545] appropriate objects from the common I join my labor to them. If you take the objects I have gathered you have also taken my labor, since I have attached my labor to the objects in question. This harms me, and you should not harm me. You therefore have a duty to leave these objects alone. Therefore I have property in the objects. n68

Similarly, if I use the public domain to create a new intangible work of authorship or invention, you should not harm me by copying it and interfering with my plans for it. I therefore have property in the intangible as well. To analyze whether this conception can serve as a tenable guide for modern decisions about the ethics of property, three issues must be addressed. First, a strict no-harm rule merely enshrines a status quo, so that Locke's natural right against harm is unpersuasively overbroad. What needs to be established is not simply whether harm is done, but rather whether there is an unjustified or wrongful harm. Second, labor is not itself property. Therefore, even if persons are entitled to be free of some kinds of harm, it remains to be shown that the same right pertains to their labor. Third, it is possible that a harm-based argument for property cannot validate intellectual property, for the "public goods" characteristics of intangible creations make them infinitely capable of being shared without depriving the initial creator of their use. n69 I will address each of these in turn.

As to wrongful harm, Locke argued that the only justifiable harm was punishment properly meted out to someone who violated the law of nature. n70 Even if there are a host of potentially justifiable intentional harms -- in other words, even if Locke were wrong -- his argument for property would not be undermined, since it rests on a particular kind of harm that virtually all would agree is wrongful. The stranger whom Locke rebukes for taking a laborer's property is one who "desired the benefit of another's Pains, which he had no right to." n71

Imagine that there is a forest of wild apple trees in full fruit, and that someone has collected a few apples from each tree and piled the apples neatly [*1546] on some moss with the expectation of taking them home to eat. Imagine further that the gatherer has left more than enough fruit on easily-reached boughs to satisfy anyone who might come along, that she has posted a notice on the apples declaring the nature of her investment and interest in them, and that the apples in her pile are no better than any of the apples remaining on the trees. If a stranger came along -- someone whose characteristics are no different from what the laborer's were when she began work that morning -- and he took her apples, it would be clear he was taking them only to save his labor. After all, in the absence of a desire to save labor, he would have picked apples of his own.

The apple-taking stranger can offer no justification for his act except that he prefers his own welfare over the gatherer's. This will not justify his action, since he commits a fundamental wrong when he uses another solely as a means toward his own welfare. The stranger is treating the laborer not only "as if [s]he existed for purposes [s]he does not share," n72 but also as if she were less worthy than he. Thus, even a narrowly drawn prohibition on unjustified harm would condemn the stranger's actions and so create against such strangers a property right in the gatherer. Similarly, someone who creates an intangible has moral rights against noncreative copyists who copy purely from commercial motivation if, like the stranger who takes the apples, their sole aim is to substitute another's efforts for their own.

But none of this tells us why the laborer has a right to the fruits of her labors, be they apples or intangibles, in the first place. It may be clear that others have a prima facie duty not to take what is yours for their own benefit, but it is still necessary to decide what is yours and what is theirs. That brings us to the discussion of the second issue, namely that labor is not property.

Property has at least two meanings in the law. We can say that "property" is any vested entitlement, or alternatively "property" can mean that particular complex of entitlements -- such as the right to exclude and the power of transfer -- usually associated with ownership. It is a mistake to think that only property in the latter sense is protected against harm. The positive law protects a wide variety of nonowned interests from malicious harm, even to the extent of invalidating a malicious property owner's ordinary entitlements. n73 The interests that courts have protected range widely beyond property: examples [*1547] range from mental tranquility n74 to prospective advantages n75 such as wild ducks not yet caught n76 or barbers' customers. n77 One need not approve these particular cases or doctrines to recognize that an interest is not disqualified from all protection simply because it is not ownable in the usual sense. These cases and doctrines seek to protect something from harm in which the claimant has an interest or stake. n78 Does Lockean labor invested in a tangible or intangible item constitute such a stake?

Locke himself offered no precise definition of the kind of appropriative labor that could give rise to a property claim, n79 and his notion of labor has been much debated. The ambiguities of his text are multiplied when one tries to extrapolate from its physical examples, such as picking up acorns, drawing water from the river, or putting land under cultivation, to the intangible realm. Some things, however, are fairly clear. Aimless effort is not labor. Appropriative labor involves altering what was in the common in a way that makes it usable and thus more valuable to humanity. n80 It may also involve a kind of psychological identification, an "infusion of personality." n81 Most important from the perspective of the laborer's claim, however, is the laborer's purposiveness. n82 A stranger's taking of another's labored-on objects is likely to merit legal intervention only if the taking interferes with a goal or project to which the laborer has purposely directed her effort. n83 If the taking does [*1548] interfere, the actor needs some special justification for doing it. n84 The scope of the laborer's purpose will help to define the scope of the rights she can assert. n85

Turning to the third issue, the idea that copying intellectual products cannot be harmful because intellectual products are physically inexhaustible "public goods," it would appear to lack merit. Copying can harm important interests even if the copying does not deprive the creator of physical use of her creation. For example, if someone creates music not only for the sake of listening to it herself, but also for the purpose of feeding herself by selling the royalties to it, she can be harmed by a bootleg copyist as severely as if he took the physical sheet music out of her den or stole the food she had bought. The intellectual laborer requires some kind of anti-copying protection if her property in her creations is to be meaningful.

There are, however, some differences between tangible and intangible property that may be relevant from a normative standpoint. When a stranger takes the apples another has labored to pick, he steps into the laborer's shoes; by the terms of the hypothesized situation, the laborer and the stranger are the same except insofar as one has labored and one has not, so the stranger is no better situated than the laborer was to eat, sell, or make pies from the fruit. From an economic perspective, therefore, the transfer of apples to the stranger's possession has no predictable allocative significance except insofar as it may alter laborers' future incentives in negative ways -- discouraging labor and encouraging laborers to make wasteful expenditures on defensive measures to protect their harvests. By contrast, if a stranger copies an intangible product, he is not stepping into the laborer's shoes. Since the copyist does not divest the laborer of possession, the copying adds another source of the intellectual product to the world. If the copyist distributes many copies to the public, it will decrease the "deadweight loss" n86 to which an author's right against [*1549] copying almost always gives rise. Unlike physical takings, then, copying produces a positive short-term allocative effect which could outweigh its long-term negative incentive effects on future creators. n87 Does this difference in potential economic effect justify the harm caused by the copyist stranger in a way that the harm caused by apple-taking stranger cannot be justified? From a Lockean perspective, it does not.

For the public's needs to justify harming the laborer they must have some particular moral weight, such as claims based on exigency ("charity"), or the public's own right to have unharmed access to the common. Nothing in a natural-rights framework gives the public the per se entitlement to cheap access to what the laborer has produced. As I have argued elsewhere, the public has no prima facie right to the price and quantity of intellectual products that would be available in a world devoid of intellectual property law. n88 The public has no more right to the "benefit of another's pains" n89 than the apple-taking stranger had.

"Deadweight loss" merely measures the difference between what society gains from an intellectual product distributed subject to anticopying restraints, and what society would gain from a freely-copied intellectual product. Avoiding "deadweight loss" is a natural right only if the public has a right to free copying. As just discussed, it has no such right. Granting laborers anticopying rights that may make some works more expensive or less accessible thus does not deny the public anything to which it is entitled, with the result that the unconsented copyist who harms the laborer is not justified by the benefit his act may give the public. The claims of the laborer who produces intangibles and the claims of the laborer who works with physical objects are therefore of equal strength.

2. The Nature of Lockean Property Entitlements

For years, scholars have disputed what Locke had in mind when he used the word "property." n90 In many of his usages, "property" includes virtually all of one's entitlements, including "Lives, Liberties, and Estates." n91 But this Subsection restricts its attention to the circumstances under which Locke's [*1550] moral law envisaged conventional property rights in tangible things and intellectual products.

Conventional property in the Anglo-American system usually includes at least three entitlements. First, a property owner has a liberty to consume the property and use it harmlessly. Second, an owner has a power to transfer the property. n92 Third, an owner has a claim right to exclude anyone whose entrance or interfering use she wishes to oppose. n93 The discussion below explores these three crucial entitlements in Locke. n94

a. Liberty Right to Use One's Property

Locke argues in favor of appropriation, consumption, and use. n95 The owner possesses a broad privilege or liberty to use her property in any way she sees fit, as long as it causes others no harm. n96 Locke's argument concerning the necessity of property rights rests heavily upon the liberty rights to appropriate, consume, and use harmlessly. He writes:

[The earth's fruits and beasts] being given for the use of Men, there must of necessity be a means to appropriate them some way or other before they can be of any use, or at all beneficial to any particular Man. The Fruit, or Venison, which nourishes the wild Indian . . . must be his, and so his, i.e. a part of him, that another can no longer have any right to it, before it can do him any good for the support of his Life. n97

If others have no right to the nourishment someone has gathered, the gatherer violates no duty in eating it. She has a rightful liberty to consume.

As noted above, however, the natural law imposes restraints on one's liberties to use one's property, such as the duty to refrain from harm. n98 [*1551] Moreover, even if a laborer is ordinarily at liberty to keep the benefits she can draw from her product, the natural law imposes on her an obligation to share her plenty with those in extreme need. n99 As a result of this duty, in combination with the "waste" limitation that requires that one not allow one's property to perish uselessly, n100 the laborer's freedom not to use the product may be limited.

Most of these liberties (and their limitations) are applicable to the realm of intangibles. The "waste" limitation, for example, might restrict a misanthropic inventor of a cure for cancer from destroying her notes. Similarly, a liberty of harmless use does not pose particular analytic complexities regarding intangibles, and appears applicable to intellectual products. Someone who creates an intangible should be at liberty to use it.

b. Power of Transfer

Locke assumes contracts can be made in the state of nature. n101 He clearly envisages the barter or sale of objects. n102 Some things, however, namely those that are inalienable under the law of nature, cannot be sold. n103 Because persons are stewards of their lives, responsible to God, n104 they cannot choose to enslave their bodies. n105 Mental liberties essential to the rational life of a servant of God would also presumably not be alienable. People thus may not sell those things that are essential to their lives, but they may otherwise sell or trade what they appropriate or make from the common.

Because of the intangible nature of intellectual products, it may be impossible for the creator of an intellectual product to divest herself of it fully. For example, a composer is unlikely to forget her music when she sells the copyright to it. The entitlements in intellectual products can nevertheless be transferred: the creator can impose on herself by contract a duty to cease using what she has made, and transfer all her rights and powers over the use of the intangible to someone else. Therefore intellectual products, like other products of labor, are capable of being subject to a power of transfer.

[*1552] c. The Claim Right to Exclude

A property owner ordinarily has a claim right to have others refrain from entering or otherwise interfering with the property. She also has a power to waive the right and give others permission to make use of the property. The claim right to exclude is usually "good against the world," which means that all persons in the world have a correlative, prima facie duty to respect it. In positive law, it is when someone breaches this correlative duty that the right to exclude is most obvious, for then the owner brings a trespass suit (for land) or an infringement suit (for an intellectual product) to enforce the right. The correlation between rights and duties forms a part of natural law theory as well. If one held a moral right or ius over another, that other was "in a state of subjection" to the right-holder. The "moral power" of the right-holder was termed a facultas moralis, and this power to prohibit others from using our possessions is "[t]he force of the right of property." n106

It is often argued that the "essence" of property is "the right to exclude others." n107 The claim right to exclude protects the owner's ability to say "no" until the other party pays consideration the owner thinks suitable. This right, then, is the condition for the existence of self-executing markets. For intangibles, the parallel entitlement to the right to exclude physically is the right to forbid others' use of one's product. n108 This species of entitlement is as vital in the intellectual property context as it is in the context of tangibles.

Since Locke argues that people form governments precisely to make their property more secure, n109 and since the claim right to exclude is such a valuable part of property, one would expect this right to play a role in the state of nature. n110 And Locke does indicate that one who harms another in his "Life, Health, Liberty or Possessions" n111 has violated a duty under the law [*1553] of nature. n112 This indicates that the owners of possessions have at least a claim right good against the most important intrusions, namely, those that are harmful.

To be sure, Locke's treatment of the right to exclude is somewhat unclear. He was more concerned with arguing that individuals in the state of nature would have had a rightful liberty to use the earth's plenty n113 than with the idea that productive individuals have claim rights over others. The obscurity of his treatment of the latter issue is such that even a thoughtful commentator such as Karl Olivecrona seems to think that Locke ignored the concept of a claim right over property -- worse, that the concept "is never mentioned or presupposed" in either of the Two Treatises. n114

To suggest that Locke was merely concerned with justifying liberty rights of consumption, however, is too restrictive of his intent. The defining characteristic of liberty rights is an absence of restraint, whether legal (in civil society) or moral (in the state of nature). n115 Therefore struggles between the holders of liberty rights are indeterminate as far as moral or legal result is concerned. n116 Notwithstanding Locke's sometimes bucolic image of the state of nature -- a land of abundant space where each holder of liberty rights could work her plot of earth without need to struggle with her neighbor -- Locke was concerned with the possibility of conflict. n117 He could hardly have thought the competitive realm of liberty rights capable of generating the security he imagined the enforcement of natural law would bring. n118

We will return later to the question of the scope of an owner's claim right to exclude. For now, it is enough to note that the laborer who achieves property in what she takes from or makes from the common, has a claim right in it that all others have a prima facie duty to respect.

[*1554] 3. From Natural Property Rights to Property in Civil Society

Are natural property rights enforceable in civil society? It appears so. Locke argues that people enter civil society in order to obtain security in the enjoyment of their natural rights. n119 In the state of nature, everyone was at liberty to punish violations of the law of nature themselves, n120 and this led to discord. n121 When people enter civil society, however, they bind themselves to refrain from exercising this liberty, n122 and delegate it to the commonwealth. n123 Once the commonwealth has the liberty (and perhaps the duty) n124 to punish violations of the law of nature, natural claim rights come closer to something a positivist would recognize as legal rights: violation of them induces governmental action.

Locke's argument suggests that government exists only to enforce natural law, and that it is constrained by its precepts. n125 Other than the relinquished [*1555] liberty right of pursuing and punishing offenders, the individual retains virtually all the other rights and duties of the law of nature in civil society. In civil society they become legal rights and duties. After all, if the purpose of government is "the preservation of their Property," n126 part of which is the "estate" one possesses, n127 it is logical to expect one's natural property rights to be guaranteed by law in civil society. Thus, even though we are no longer in a state of nature, Lockean theory remains available as an appropriate source of guidance for positive law.

C. The Public's Entitlements

The public has entitlements in order to ensure equality between persons and to give human beings what they need to flourish. n128 Let us begin with the latter. In order to flourish, all people need a degree of security. Lockean natural law therefore seeks to provide people with a right against harm. n129 People also need minimal sustenance. Thus, Lockean natural law gives all persons, whether or not in distress, a liberty to take from the earth a portion of that which all own in common. n130 Yet the need for sustenance is not simply physical: it comprises our intellectual, expressive, and artistic needs as well. n131 People must have access not only to the physical common of which Locke explicitly writes, but also to a common of intangibles. Our common encompasses not only our physical country but our culture as well. n132

[*1556] 1. Importance of a Common Heritage in Maintaining Expressive Capacity

In a civilized society, human beings create the reality around them. Our direct surroundings are buildings and landscape architecture rather than woods and natural water. To be a creative maker of new meanings, n133 a rational being needs access to her heritage. Just as land is necessary for farmers to bring forth fruit (in Locke's imagery), a common of previously-created intangibles is necessary for creators to bring forth new works of the imagination. Too broad a set of intellectual property rights gives one set of persons potential control over how that "created" reality can be interpreted. In other words, it can give them control over what the world means. Such control would deny others the understanding, or "naming," that is one crucial way humans interact with the world.

New creators inevitably n134 and usefully build on predecessors. In her invention of techniques, discoveries, ideas, or themes, the new creator speaks out of a history, and the very value of her contribution will depend upon her advancing upon what has come before. The inventor of the automobile builds on one predecessor's invention of metal-smelting processes, another predecessor's invention of gears, another predecessor's invention of the wheel, and ultimately on the efforts of some Promethean cave-dweller who, in discovering how to make fire, laid the groundwork for the internal combustion engine. The pattern is not limited to the technological culture. Artists learn from predecessors the laws of perspective, the uses of oils, acrylics, and watercolors, and the very traditions that give meaning to their productions. As for music, it is often argued that there is a limited vocabulary available for musical composition, n135 and that composers will inevitably and necessarily work in a received tradition, as well as re-use prior themes. Communication depends on a common language and common experience. Labor itself is guided and organized by anterior ideas. n136

One cannot assume that early creators or their heirs would consent to the use of property by others to create new intellectual products if the first creators [*1557] had control of these necessary prior resources. Some owners might consent to others' use without demanding compensation. n137 Some might agree to compensated use. But others might refuse to sell altogether n138 or charge more than the new creators can afford. More significantly, the cost of tracing ownership and effecting transactions could itself be prohibitive, n139 particularly for fundamental ideas of fairly ancient origin, such as the discovery of perspective. For example, basic story ideas are fundamental building blocks in this way. From Romeo and Juliet to West Side Story and beyond, the plot in which children from warring factions fall in love has provided fruitful ground for a host of authors. Yet it took a twentieth-century decision of the Second Circuit Court of Appeals to make clear this story idea could not be owned. n140 Had the decision been otherwise, who knows how many potential claimants could demand a toll from the next film producer to come along.

Thus, if perpetual property existed in all intangibles, many creators would have to choose between using someone else's property without permission, or forgoing creation of their own. Because of transaction costs, the possibility of transferring rights through the market would not help substantially. For new creators to flourish, they must be able to draw on an array of prior creations that are not privately owned.

2. Intergenerational Equity

Considerations of equity between generations mandate the same result. Later creators should be as free to use their faculties as their predecessors were, a liberty only possible if each generation is allowed some use of prior creations. An unencumbered freedom to attempt to describe and give meaning to reality -- including that reality created by predecessor artists -- must be granted to every potential artist lest she be "checkmated" n141 by her predecessors. A painter in the state of nature who wants to depict her reality [*1558] paints trees and caves. A painter in Renaissance Venice who wishes to depict reality will not only paint trees, but also the gondolas and buildings that others have created. When the age of modern copyright first arrived, a painter was free to depict what came before; her exercising that liberty should not close it off from others who come after her. A painter in the modern city should be as able as the cave painter to depict and interpret her surroundings, even if in the modern world many of the things she sees are artifacts created by others. That a first creator has labored is not sufficient ground to justify giving her a right to keep others from achieving their proper goals. n142

The argument is of course not exhausted by the visual arts. A writer must be free to write about the effect of earlier writers upon her. n143 Harold Bloom goes so far as to argue that all poetry involves a creative misreading of one's predecessors, n144 so that, in a "sense, all poems can be read as rewritings of other poems." n145 Without some freedom to copy, later artists will lack the ability to describe their world that was enjoyed by their predecessors. n146

3. The Intangible Common

Could Locke have foreseen a common of intangibles? A concern with human expressive capacities was central to his thinking. Locke built his theory largely around religious notions which highlighted human rationality and creativity as the source of man's claim of dominion over the earth's bounty. n147 James Tully suggests that one of the "crucial point[s]" for Locke is that "everyone is able to labour in, and enjoy the fruits of, his calling in a manner appropriate to man, and analogous to God's activity as a maker." n148

Thus, although the common explicitly discussed in the two Treatises was the physical realm -- both that which existed already (land, seas, mountains) or that which was continually in the process of coming into existence without the assistance of humankind (deer, fish, acorns) -- applying Locke's analysis to the [*1559] intangible realm would not do violence to his thought. Admittedly, for the intangible reality of intellectual property, the common must be defined differently. The central criteria are the same, however: equality and need. Everyone has an equal right to use the common, and everyone needs to use the common for sustenance.

The most obvious component of the intangible common is equivalent to what our law now identifies as the "public domain": those intellectual creations already in existence but not privately owned. In American law, the public domain is largely filled with creations whose period of protection has expired, works which have been abandoned, or works for which no protection existed ab initio. Similarly, if there are works which, under Lockean principles, would have only limited duration or would not be capable of being owned, n149 they would be part of the common.

4. The Common as Property

For Locke, the word "property" embraces virtually any liberty or claim to which one was entitled under the law of nature. n150 The public's liberty to use the common is a species of property in even a stronger sense, for as a "liberty right" n151 it is a stable and guaranteed entitlement. Admittedly, this Lockean entitlement does not entitle us to force others to assist us in using the common resource. Rather it defines an area in which one is entitled to be free from the restraint that others' property rights impose. n152

It is conceptually untenable to treat "property" and "liberty" as if they were fully separate categories. Every conventional private property right contains a "liberty to use," n153 and some liberties are public property strong [*1560] enough to keep conventional private property from forming. Illustrating the latter category is a recent pre-emption case, in which the Supreme Court decided that the patent law not only created private rights in patentees, but also created certain liberties of use in the public. n154 These liberties were entitlements that no state could undo -- and to preserve them the court struck down state laws imposing duties not to copy certain intellectual products. n155 Similarly, the common would be an enforceable "right to use" inhering in the public, and thus property.

Regarding the nature of this property in the common, Locke says that Adam's many descendants individually had a right to possess and use as much as was needed to "provide for their Subsistence," n156 with certain duties attaching. His text suggests that he had in mind a property entitlement of the following sort: each of us (1) has a justified liberty to use the common, (2) subject to no duty (absent charity or waste) to account to our co-owners for any profit or product we make out of the common, (3) coupled with a duty not to deplete our co-owners' ability to use the common. n157 What Locke posits is a sort of compromise, an entitlement midway between nonownership and tenancy-in-common: freedom to keep one's gains, subject to a duty not to impair others' abilities to draw their own gains from the resource.

The preservation of this public property right raises a critical problem. All persons in the state of nature have a liberty right in the common. But private property also exists in the state of nature, and such property involves a claim right over third parties. Thus, the public will sometimes have duties that conflict with its entitlement to the common.

D. Conflicts Between the Laborer's Claims and the Public's Entitlement in the Common: The Proviso

Which entitlement takes priority in cases of conflict? In circumstances where the laborer's claim to deserve property would, if honored, impose duties on others restricting their use of the common, should those duties nevertheless be imposed, or should the laborer's claim to exclusive property be invalid?

[*1561] Locke is not willing to favor the laborer's claim automatically under these conditions, n158 and his hesitation is well founded. When the common is threatened by a laborer's claim to property, it seems right that the laborer cannot use the moral law to restrain the common's use. Yet because the products are only partially drawn from the common, and are partially drawn from the laborer's own effort as well, it seems right that the public cannot use the moral law to force the laborer to share. The two claims are in apparent stalemate.

To understand how Locke resolves the stalemate, recall how the laborer's claim to deserve property is itself justified. n159 That claim is premised on two primary elements: an assumption that to take the product of the laborer's effort is to cause harm to the laborer, n160 and the law of nature that all persons have a duty to refrain from causing harm. n161 But the same no-harm principle dictates that the laborer should not do harm to other peoples' claim to the common. n162 When the two conflict, the common must prevail. Were the result otherwise, the natural law would grant laborers a claim right to do harm, reversing Locke's first law of nature that no harm be done.

It is bad enough when a private party does harm and violates the law of nature. But it would be worse for the law of nature itself to grant a claim right to do harm (and to impose the correlative duty, to accept harm or impose harm on oneself). Further, the logic of the property owner's initial claim gives priority to a no-harm principle. If the property claim itself would do harm, it cannot be enforced without raising additional problems of justification -- problems which are not solved by Locke's account. n163

[*1562] Thus no natural right to property could exist where a laborer's claims would conflict with the public's claim in the common. n164 One could argue for a different result. Perhaps at the point of conflict in the structure of natural entitlements, natural law could give way to other, prudential considerations, like economics. For example, prudential considerations might justify a particular right to property where natural law would not. Whether in cases of conflict natural right would forbid the creation of entitlements premised on bases other than the natural law itself is an issue Locke did not reach and this Article will not address. Locke's own resolution is to declare the conditions under which a natural right to property is justified: if there is "enough, and as good left in common for others" after the appropriator has taken up his share, n165 then no one has grounds for complaint. n166

This is Locke's famous proviso, and it plays a crucial role both in the Lockean justification for property, and in resolving the conflicts that can arise between a laborer's property claims and the public's entitlements. Applying it to conflicts between the laborer's and the public's rights establishes that no duties (and thus no claim rights) arise where conflict exists: neither party can use the natural law to restrain the other, and both parties have liberties of use. Consequently, in cases of conflict, the public's liberty right in the common prevails.

1. Defining the Proviso

Locke states the proviso thus: "Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joyned to, at least where there is enough and as good left in common for others." n167

With the proviso, Locke argues that one person's joining of her labor with resources that God gave mankind ("appropriation") should not give that individual a right to exclude others from the resulting product, unless the exclusion will leave these other people with as much opportunity to use the common as they otherwise would have had. A person who wants access is entitled to complain only if he is worse off (in regard to the common) when [*1563] he is denied access than he would have been if the item had never come into existence. If the proviso is satisfied, others are no worse off if they are excluded from the resource the laborer has marked off as her own. n168

Natural law writers before Locke had long struggled with the problem of how to justify individual property rights and still give due deference to the rights of the rest of mankind. n169 Pufendorf's solution was to suggest that all persons consented to others' property rights. n170 This argument, however, was ridiculed by Sir Robert Filmer, a strong advocate of the divine right of kings. In Filmer's view the very impossibility of obtaining such consent helped to show that mankind as a whole did not have common rights in the earth, and that the earth had instead been given to Adam and Adam's proper heirs -- the monarchy. n171 In turn, Filmer's alternative was anathema to Locke. Indeed, refuting Filmer, and defending the common ownership of the earth's bounty, was the primary point of Locke's First Treatise. Yet Locke did not deign to use Pufendorf's argument that all mankind consented to each act of appropriation. n172 Locke's own solution is more elegant. He specifies a ground for justifiably dispensing with consent: if there is "enough, and as good left in common for others" after the appropriator has taken up his share, n173 then the appropriation "does as good as take nothing at all." n174

The proviso that "enough and as good [be] left" lies at the center of this Article's thesis: that creators should have property in their original works, only provided that such grant of property does no harm to other persons' equal abilities to create or to draw upon the preexisting cultural matrix and scientific [*1564] heritage. All persons are equal n175 and have an equal right to the common. n176

It is important to understand several things about the proviso. First, the proviso does not allow property to form merely because it is "efficient" or otherwise serves the social good. Even if a grant of property might be desirable from these various points of view, natural law forbids it if recognizing a property right would significantly reduce third parties' ability to use the common. n177 Conversely, if the proviso is satisfied, the theory allows property to form regardless of whether a nonproperty status would better serve social goals such as efficiency.

Second, the proviso only offers limited protection for members of the public. Persons whose rights in the common are not adversely affected by the creator's property right would have no ground of complaint, and the creator could assert property rights against them unimpeded. Further, even as to the individuals whose freedom from property-based restraints may be guaranteed by the proviso, the proviso gives such individuals no entitlement to affirmative societal intervention on their behalf.
Third, the proviso treats only one kind of harm as relevant for property-formation purposes: it protects the propertyless from depletion of the common. While Locke posits that persons should in general refrain from doing harm to one another, the proviso is not written this broadly, nor should it be interpreted in this way. Harms to interests outside the common would not invalidate property under the proviso. n178

[*1565] 2. The Role of the Proviso in Justifying and Limiting Property

Criticism of a theory of property is likely to come from two quarters: from property owners who feel the theory is too narrow in its grants of title, or from those among the propertyless who object to finding themselves barred from resources and goods which they desire. In Locke's theory, the proviso serves as Locke's bedrock response to the complaints of the nonpropertied. n179 As Judith Jarvis Thomson has asked, if "enough and as good" is truly left, how could the proviso "fail to be" a sufficient condition for property acquisition? n180 If the proviso is satisfied, creating property gives the laborer a reward (and creates socially useful incentives, to boot) at no cost to the fundamental human entitlements of the nonpropertied in the common.

It is the proviso therefore that gives Locke's theory much of its moral force. n181 Locke here takes a step that helps to justify an exclusion right, for, with the proviso satisfied, the public's fundamental entitlements will not be impaired if the owner excludes it from the owned resource.

The proviso has additional functions within Locke's argument. For example, the proviso usefully limits the amount of property that can be claimed by an individual. A principle that property results from mixing labor with the common could be absurdly overbroad. Thus Robert Nozick has asked "if I own a can of tomato juice and spill it into the sea . . . do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?" n182 Once the proviso is added, Nozick's hypothetical is no longer problematic: oceans may not be owned without violating the proviso, but smaller claims may be justifiable. Thus, today there are artists whose work consists of stringing fences or wrapping areas of landscape. Suppose such an artist stirs some tomatocolored dye into a bay and changes its color to complement the sunset. The artist would seem entitled to keep everyone else out of the colored area to preserve his handiwork from being marred by eddies and diluents, provided that the world offers the other ocean users -- boaters, swimmers, aestheticians -- equally good and convenient areas of ocean for their use.

The desert basis for such "property" may be trivial, depending on one's view of this sort of art, but if the proviso were satisfied, the claims of those who would want to disrupt this particular patch of ocean would seem even [*1566] more trivial. n183 If there were equally direct and scenic routes available elsewhere, one would probably disapprove of a prankster's deliberately driving his motorboat through the artwork, and think it appropriate for the artist to receive a permit and the aid of a park official in a governmental motor boat to help head off intruders.

Ordinarily we imagine that it is the property claimant who has to justify why the law should aid him in excluding other people from his domain. But if no one's baseline position is worsened by a grant of property, then it is the would-be entrant or user who bears the burden of explanation; he should be required to show why a laborer's property claim should not bar him.
Locke suggests the following test for determining whether the proviso is satisfied: a covetous and contentious stranger has no justification to complain of another's taking possession and ownership of land if, after the owner's appropriation, "there was as good left, as that already possessed, and more than he [the envious complainer] knew what to do with, or his Industry could reach to." n184 Since the number of potential intellectual products is not limited by physical constraints -- the globe may be entirely taken up, but new intellectual products can continue to be made -- it might be argued that intangible creations easily pass Locke's test. Even if the creative laborer receives exclusive property in them, there will always be more possibilities open to strangers than they "kn[ow] what to do with." n185 At the outset, then, the creation of virtually all intellectual products seems to meet Locke's test, and the proviso might appear to impose no constraints on intellectual property formation whatsoever.

Many commentators have indeed suggested that intellectual property rights cost no one anything. For example, Steven N.S. Cheung recently traced the "something-for-nothing" thesis from Jeremy Bentham, through J.B. Say and John Stuart Mill, to J.B. Clark, and applied it to patents: "If the patented article is something which society without a patent system would not have secured at all -- the inventor's monopoly hurts nobody . . . his gains consist in something which no one loses, even while he enjoys them." n186 That is, if A [*1567] makes something that did not exist before, excluding B from using it will arguably leave B unharmed. In Lockean terms, the claim is that because B still has free access to the same public domain elements that A had, her ability to use the common is unimpaired.

If indeed a creative person creates something, and denying others access to it imposes no costs on the latter, then giving the creator rights of exclusivity would seem justified. But there is no reason to suppose that rights to intangibles invariably conform to this pattern. Mill was wrong to suggest that no one ever "loses" by being prohibited from "sharing in what otherwise would not have existed at all." n187 That an intellectual product is new, would not have otherwise existed, and may initially bring benefit to the public, does not guarantee that later exclusions from it will be harmless.

Tort law has long recognized that once action has begun, inaction can result in harm, not merely in the failure to confer a benefit. n188 Analogously, once a creator exposes her intellectual product to the public, and that product influences the stream of culture and events, excluding the public from access to it can harm. For example, assume that A takes substances from the common from which, with great ingenuity, she manufactures an enzyme that greatly improves one's health. Because of its salutary properties, a decision is made to include the enzyme in the drinking water. The benefits, however, come at the cost of a particular form of addiction: some people who drink the enzyme become unable to metabolize carbohydrates without continued intake of this elixir. To people so affected, ordinary food becomes valueless for nourishment -- it is useless unless eaten along with the enzyme. In such a case, the fact that the common continues to have an ample supply of both food and the elements from which the enzyme can be made is not sufficient to protect the public from harm. The addicted public also needs A's knowledge of how the enzyme is manufactured, for without it, they will starve in the midst of plenty. If, after the enzyme is put into the water supply, the inventor is given a right to prohibit others from using her manufacturing technique, addicted members of the community are worse off in their ability to use the common than they were before.

Thus, the mere presence of abundant raw materials would not suffice to give A a right to exclude B and other strangers from the enzyme or from learning how it can be made. Giving A ownership of the enzyme or a patent [*1568] over its method of manufacture would leave the proviso unsatisfied, for even if A's appropriation leaves "as much" for others, it does not leave "enough, and as good." Mere quantitative identity is not enough. This is essentially a reliance argument: having changed people's position, the inventor cannot then refuse them the tools they need for surviving under their new condition.

Consider for example the position of an early mathematician. Once Arabic numerals are introduced into her culture, it will be virtually impossible for her to make significant contributions to mathematics if she is limited to the public domain of Roman numerals. For the later mathematician to be able to use her knowledge and her faculties as well as she could have prior to the invention of the new numbering system, she would need access to the new system that someone else has developed. Or suppose a politician gives a speech that made promises upon which the public relies; if the promises turn out unfulfilled, it may be necessary to quote the promises in order to mobilize the appropriate political reaction. If quotation is forbidden, the speech -- however consensually listened to in the first instance -- may do the public irremediable harm. More generally, if someone tells lies, it may be necessary to quote those lies to rebut them more effectively and to protect oneself and one's friends. Or consider a landscape photographer. As each bit of the natural landscape is replaced by buildings, statues, and other human artifacts, the only way her interest in the common can remain "as good" is if she is given the freedom to photograph her new surroundings.

Finally, suppose a preacher instructs his flock to follow precepts that he claims are based on divinely inspired writings, and his audience does in fact follow these rules. Perhaps the precepts contain a ban on birth control, or perhaps a general ban on seeking the help of doctors. If some of the congregation begin to doubt these guidelines, they need to be able to resort to the original text on which the preacher relied to judge for themselves whether the restrictions are justified. If the doubters in the congregation cannot quote, print, and distribute to like-minded persons the portions of the writings that suggest the preacher's interpretation is not the only or best one, the doubters and those whose interests they serve are harmed. That is, if the preacher is empowered to forbid any unauthorized translations or unauthorized set of excerpts from these scriptures, it may happen that the congregation may be worse off having been exposed to the "authorized" version than if they had initially been left to their own resources to find a source of moral guidance in the common.

Texts much less important than scriptures can also have a grip on the mind that only use of the original can shake. Perhaps an advertiser saturates the airwaves with a cute little symbol (the Eveready bunny or the Pillsbury dough boy) which come to have a deep impact on children viewers. Should those children, once adult, want to free themselves and people like them from the consumer culture that surrounded their growing years, they may wish to use [*1569] those images satirically, out of context, to try to break the chain of "charming" associations that would otherwise determine the symbols' psychological effects. Should these former audience members and those they serve not be able to play with the symbols that formed their mental vocabulary, they may be worse off than if they had initially not been exposed to them.

Moreover, a prohibition on copying can cause harm even when the audience has no complaints whatever about the artifact to which they have been exposed: it is possible to become addicted even to beneficial mental substances, and all addictions carry with them the possibility of harm. Some poems, some ideas, some works of art, become "part of me" n189 in such a way that if I cannot use them, I feel I am cut off from part of myself. I would prefer never to have been exposed to them rather than to experience that sort of alienation.

Consent does not eliminate the problem. In a pervasive media culture there will always be "seepage" n190 -- some ideas and some images will impinge on one's consciousness whether or not one has sought them out. Even in cases of express consent, as when someone pays money to enter a movie theater, there is no guarantee that a prohibition on copying will do no later harm. When someone agrees to expose herself to a new cultural artifact, she cannot know how it will affect her in advance. An audience may be told that it will be forbidden to copy what it is about to see, and the members of the audience may nevertheless agree to see it and even pay to see it. But it may live to regret the bargain as ultimately ill-informed.

Being forbidden to copy thus may require one to choose between silence and deception. An early twentieth-century psychologist may read Freud and be convinced that the ego-id-superego structure well describes the organization of the human psyche. If such a researcher were forbidden to use those concepts in her books, however, she might be left with no way to describe honestly her beliefs about human nature. She can use evasion (and injure her scholarship), not publish (and nullify her scholarship), or violate the prohibition. At that point she might well wish to exchange her post-Freud expanded understanding for intellectual freedom -- but she cannot; she cannot unlearn what she now believes to be true.

This example may seem far-fetched, for in our country ideas like Freud's cannot be owned and are therefore in the public domain for all to use. But part of the reason general ideas are not ownable under current law is precisely because there is a Lockean concern with protecting the public from harm. n191 For visual artists, the public domain of current law is not as accommodating as the Lockean spirit would imply. Images that capture artists' attention and [*1570] become "part of them" are often owned by others. And when an image or poem captures the artist, he or she may be unable to create except on the agenda it sets. As artist J.S.G. Boggs has observed:

Creative people are prisoners. That is to say that they get "captivated", and the only way out is to beat a path away from the point of captivity. If my attention is "captured," it is impossible to simply get away. The bars are not physical. They are produced by the intellectual, the emotional, or, more usually, a combination of the two. But, they are as functional as any jail cell you will ever construct in the material world. . . . n192

In sum, if there is only one culture (and whether technological or literary culture is at issue, the point is the same), a person who wishes to contribute to it usually is required to use the tools of that culture. Giving first creators ownership over any aspect of the culture, even if that aspect is newly created, may make a later creator less well off than he or she would have been without the new creation. Intellectual products, once they are made public in an interdependent world, change that world. To deal with those changes, users may have need of a freedom inconsistent with first creators' property rights. If they are forbidden to use the creation that was the agent of the change, all they will have to work from will be the now devalued common. The proviso eliminates this danger. It guarantees an equality between earlier and later creators. The proviso would thus ensure later comers a right to the broad freedom of expression, interpretation, and reaction which earlier creators had, a right which cannot be outweighed by other sorts of benefits.

3. Individualized and Nonfungible Nature of the Proviso's Protection

This Article will treat the proviso as establishing an "individualized" criterion. In other words, the Article argues that a later arrival on the cultural scene should be at liberty to use an existing creation if prohibiting his own use would make him worse off individually than he would have been if the predecessor creator had not created the intangible at issue. This is a somewhat controversial interpretive step to take. Many commentators have interpreted Locke's proviso as imposing only an "aggregate" condition, as if Locke had written something like "a laborer's appropriation results in property as long as the institution of property, on the whole, leaves nonappropriators better off than they would have been in a world without property rights." From this premise, it seems to follow readily that the proviso is permanently satisfied by the extensive benefits generated by a market economy. n193 C.B. MacPherson, [*1571] for example, views the proviso roughly along these lines, and he uses his interpretation to argue that Locke was not concerned with the welfare of the nonpropertied. n194 Clearly a proviso this easily satisfied is tantamount to no proviso at all. But this should provide evidence that the aggregate interpretation is wrong.

There are two possible tacks an aggregative approach can take. First, one might think that Locke would accept erosion of the common so long as the net social welfare increased. This interpretation, however, ignores Locke's concern with individuals. Consider, for example, his focus on what "each" of us inherits. Locke's First Treatise was written primarily as an attack on Sir Robert Filmer, an advocate of the divine right of kings. n195 Locke's reasoning involved an attack on primogeniture, and a defense of all individuals' rights to survive and inherit. n196 Further, the individualistic foundations of Locke's starting assumptions would not seem to allow for routine trade-offs between persons. n197

As a second possibility, an aggregative exponent might assume that all resources are fungible, so that giving economic benefit to an individual would always compensate her for her loss of the common. But Locke distinguishes between ordinary resources which are bought and sold, and goods like freedom that are essential to human nature. The latter are inalienable; n198 they cannot be transferred no matter how much their possessor desires to do so, and no matter what benefit is offered in exchange for them. A fortiori, in property formation, where nonowners do not even consent, things essential to life cannot be fenced off from any individual who needs them, even if some other kind of benefit is given in exchange.

The second version of the aggregation argument ignores the problem of exchanging inalienable benefits because it assumes that the benefits the proviso [*1572] protects are fungible with other benefits. If they are fungible, then property can form even if the proviso is violated, so long as the property rights create an aggregate economic benefit for the individual excluded from the owned good. n199 This may be an acceptable argument for some parts of the common, like land. But not all costs and benefits can be measured in a common coin. Much in the common of intangible products is not fungible with ordinary economic goods. n200 There is little, for example, that could compensate for loss of freedom of expression.

The protection the proviso gives free speech is thus both individualized and nonfungible. Summarizing that protection as a whole we find: (1) The proviso protects peoples' liberty to use what has already been created and is in the public domain. Nothing can be taken from the public domain unless "enough and as good" is left. (2) If a new creation renders the public domain less valuable, the proviso gives people a privilege to use the new creation to the extent necessary to make themselves as well off as they previously were. Among other things, this means that major cultural developments must be open for all to use. (3) The proviso gives people the same kind of liberty to create that they would have had if the creators had not sought to appropriate. As one application of this principle, persons have the liberty to use what they would have discovered in the absence of prior creators. As a broader application of this principle, persons have the liberty to deal with reality as fluidly and freely as if prior creators had not existed.

E. Natural-Right Rewards Other than Property: The Proviso in an Ideal World

In an ideal world we could minimize conflicts between the public's entitlement in the common and the laborer's claim to desert. Although Locke for historical reasons n201 concentrated on whether full property rights were justified, nothing in his Treatises indicates the laborer forfeits all claims to deserve reward in cases of conflict between the laborer's claim to property and the public's entitlement in the common. True, the laborer loses her claim to property in such cases. But perhaps she still deserves reward under natural law, [*1573] and perhaps a reward that is less than full property can be given to her that leaves the public "enough and as good."

In a world containing an all-seeing administrative eye and transaction-costless computers, such limited reward schemes could be devised. A full property right is, inter alia, (1) presumptively good "against the world" and (2) enforceable by an injunction. Either of those characteristics could be removed in order to avoid violating the proviso. For example, there might be a "liability rule" option, giving a right that is not enforceable by injunction, or what I call a "stowaway" option, giving a right that is good only against those persons whose motives are parasitic.

Though in the real world these alternatives are unlikely to be practicable, they are worth discussing for two reasons. First, they help to illustrate further the nature of the claims involved, namely the public's liberty right in the common and the laborer's claim to deserve reward. Second, they may provide guidance for governmental agencies willing to try to gather the information necessary to implement these options. Since the "liability rule" and "stowaway" approaches give the laborer (who deserves a reward) something without impairing the public's right in the common, these approaches are morally superior to handling conflicts by denying the laborer all reward.

1. Liability rule protections

Awarding property rights does not usually preclude use of an owned resource, because ordinarily markets form and users pay for the benefit they seek. If allowing property rights in the goods at issue generates an increase in efficiency and thus boosts the gross societal output, it could be argued that the increase might be spread among members of society in such a way that people who need to use the owned resources can pay for them out of the "excess" output so generated. This possibility does not, however, ensure that granting a full property right will never violate the proviso. It is far from clear that all intellectual property rights add to society's total wealth, n202 and it is even less clear that a particular user will individually reap enough of a benefit to pay for any rights to copy, particularly considering that the level of transaction costs in the intellectual product area can be quite high. n203 But there may be some [*1574] alternative to the market -- perhaps a governmentally-created market substitute such as a "reasonable royalty" damage award, or a compulsory license n204 -- that could offer the laborer some reward while preserving for the public its liberty to use the common.

Conceivably subject matters not otherwise ownable might become partially ownable through this device. For example, although the proviso allows particular musical songs to be owned, it would prohibit the ownership of musical forms (such as the symphony, the fugue, or the concerto), on the ground that there would be no alternative musical form "enough and as good" in which composers could communicate in the relevant period. Thus, even if the invention of the symphonic form were attributable to a particular individual, he or she could have no ownership in it. But what if the invention of the symphonic form made all musicians one hundred dollars richer than they otherwise would have been? In this case, giving the inventor ownership of the symphonic form would leave a later composer with no ground for complaint under the proviso, so long as she could purchase the right to utilize the symphonic form she needed at a total cost n205 of no more than one hundred dollars. The law could mandate that the price go no higher. n206 When the amount the plaintiff creator charges for the use is no greater than the amount of money her product has put in the pocket of the defendant who is utilizing the work, then access is costless for the user. That is because the creator is essentially paying the access fee herself, by her "Pains" to which the other has "no right." n207 In such cases, a creator might be entitled to assert a semiproperty [*1575] interest in the many subject matters that the proviso would otherwise require to be open to costless use.

The foregoing analysis thus suggests that perhaps a creator whose injunctive control over a work would violate the proviso would be entitled to a lesser degree of control, such as a right to a monetary benefit. The court could award a "damage only" remedy, n208 or the legislature could create a compulsory license to give the creator this right, and set rates so that the user will not have to pay more for the intellectual product than the product brought him in revenues. When full property rights would violate the proviso, such a limitation of remedy might allow the creator some reward for her efforts.

Allowing the proviso to be satisfied in this way does not violate the "nonfungibility" criterion discussed earlier. While we have stipulated that there is no possible tradeoff which could compensate a later creator from being prohibited from commenting about his culture, money trades off against money quite easily. This mode of satisfying the proviso, however, is obviously not applicable when the intellectual product has given the potential user only nonmonetary benefits.

There are several implications of the foregoing discussion. First, this nonproperty mode of satisfying natural law is probably only available against commercial users, for they are the only ones likely to be able to draw a monetary return from their use. If the benefit a user stands to draw from the initial work is nonmonetizable, then no matter how sizeable the benefit, he might be unable to purchase a use right, or he might be able to purchase it only at the cost of impairing other nonfungible interests. Assertion of a property right against a non-commercial user could therefore do impermissible harm. Second, this approach is equivalent to giving creators rights against users for any net monetary benefits they reap from the work. That is, this approach does little more than produce a restitutionary right to payment for value added.

Third, under the suggested approach, courts or administrative agencies would have to determine and put a price on the user's level of transaction costs and benefits. It is difficult to determine the proportion of a defendant's income attributable to use of a plaintiff's intellectual product. In addition to problems of proof, the notion of "attributable to" may involve a normative judgment. Admittedly courts engage in that task now (in deciding, for example, how [*1576] much of a movie's revenues are attributable to use of an infringing screenplay n209), but the task is difficult and imprecise.

The legal system may be unwilling to adopt this approach because it may be expensive or even impracticable. Markets are less expensive to administer, more sensitive to varying preferences, and more conducive to incentives than are governmental substitutes. n210 A system of intellectual property bereft of injunctive relief raises the prospect of a fully regulated pseudomarket, with all the familiar and intractable issues of centralized decisionmaking.

2. Stowaways: Instead of a Trespass or Strict Liability Right, Owners Might be Given a Right Actionable Only upon Proof of Specific Intent by Defendants

A second potential method exists for reconciling the public's claim in the common with the creative laborer's claim to deserve a reward. Even though a creator might not be able to bar a user with legitimate purposes linked to employment of the common, the creator should be able to bar a commercial user who has been drawn to the work solely in order to save himself fungible resources such as money, effort, and time. It arguably will not threaten the proviso to allow a creative laborer to assert a right of exclusion against such a commercial user, whom we will call a "stowaway" to distinguish him from more innocent free riders.
If a stowaway's purpose is solely to save effort or expense by taking advantage of another's investment of effort, and he has no interest in utilizing the intellectual product for its own sake, several things follow. Unlike the scholar or artist, this person's position has not been changed by the dissemination of the intellectual product in a way that requires use of the product to maintain his freedom to comment on his world. Nor is he someone for whom use of the product is essential to the use of his rational and creative faculties. Instead, this person is indifferent to the content of the product itself, and he wishes to copy it for reasons unrelated to its substance. Engaged in a deliberate effort to reap benefits, he can choose to refrain from involvement with the product if it will not be profitable. n211

[*1577] In the case of a stowaway, motivated as described, we may be able largely to dispense with the restrictions on property rights otherwise necessitated by the proviso. Locke suggested at one point that his proviso was intended only to protect the stranger who had an honest desire to work the previously-appropriated resource for himself, and not to protect the stowaway who "desired the benefit of another's Pains, which he had no right to, and not the Ground which God had given him in common with others to labour on. . . ." n212 Only the former had a right to complain or a potential right to use what the appropriator had produced. "God gave the world . . . to the use of the Industrious and Rational . . . not to the Fancy or Covetousness of the Quarrelsom and Contentious." n213 It may, therefore, be unnecessary to investigate whether giving property would satisfy the proviso in those cases where a stranger's solely parasitic, stowaway motivations can be shown. n214

A pull toward a "stowaway" expansion of a creator's exclusive rights would help to explain the results in certain anomalous copyright cases. In copyright, motive is legally irrelevant to the basic question of infringement; even unconscious copying triggers liability. n215 Yet under the fair use rubric, the presence of a stowaway motive nevertheless seems to persuade courts to make actionable types of use that might otherwise be outside an author's control. For example, although facts are usually not subject to copyright ownership, n216 in one case a reporting service was enjoined from summarizing factual material because it was engaged in "chiseling for personal profit." n217 In the field of parody, courts have been more likely to find infringement where the defendant wishes only "to capitalize financially on the plaintiff's original work" n218 or "to reap the advantages of a well-known tune and short-cut the rigors of composing original music." n219 Such results are consistent with the [*1578] Lockean approach, where such stowaway parodies would probably not be within the proviso's protection.

There are problems, however, with predicating any expansion of creators' rights on stowaway motives. First, the various doctrines of intellectual property law divide among themselves the many kinds of intangible products that might be ownable under a Lockean system. It would be improper to allow a "stowaway" finding to erode the boundaries among doctrines, as some of the cases just mentioned seem to have done. Second, an infringer will ordinarily have a mix of motives. Since the proviso gives a "trump" to motives of free expression, there may be relatively few persons who have a sufficiently singletrack motive to be classified as stowaways. Third, there are administrability problems whenever motives are part of a legal standard. States of mind are difficult to determine with accuracy. Fourth, even if it could be determined that a defendant is a stowaway, his motives are not the only ones that matter. The people who buy the defendant's work may have more complex motives, the pursuit of which may be sheltered by the proviso. For example, although a stowaway may have been unaffected by the dissemination of the intellectual product in question, and may be uninterested in addressing the substantive issues raised by the product's contents, those who buy from him may have been negatively affected by the initial dissemination and wish to buy the stowaway's copies in order to respond to the original work. If so, arguably the stowaway should be allowed to utilize the prior work as their agent.