PropertyProf Blog

The Music-Copyright Enforcers

This week's New York Times Magazine has a fascinating article about the business of enforcing music copyright.  The author travels with a BMI employee, Devon Baker, as she knocks on the doors of dozens of bars and restaurants to inform the owners that (1) the music they've been playing is copyrighted; (2) BMI has been designated by the copyright holder to collect royalties; and (3) it's time to pay up.

Not surprisingly, it's not welcome news to the owners -- and not just because no one likes to discover an unpaid bill.  The ease of sharing music through technological advances has both made its presence ubiquitous and altered norms regarding its free use.  Bar owners who would never would have dreamed of stealing an album from a record store because doing so would violate their sense of right and wrong see nothing wrong with attracting patrons by playing karaoke discs -- royalty-free.  But those norms are misaligned with federal copyright law.  That gap between norms and law regarding property rights creates some very interesting and difficult problems for BMI and employees like Ms. Baker.

BMI, recognizing the gap between norms and law with regard to paying royalties, has taken a patient suasion approach with these business owners, since an agressive approach creates indignant resistance and simply doesn't work.

Ultimately, BMI and the business owners both know the law is on BMI's side.  But whose side is time on, if the gap between norms and law remains?  

My article Acceptable Deviance and Property Rights, forthcoming in the Connecticut Law Review, explores that very gap, so it's exciting for me to see it addressed in the New York Times.

Mark Edwards

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End Community Property?

I'm back form the SEALS boondoggle law conference in Palm Beach, where I attended an engaging discussion on "The Continued Vitality of the Community Property Regime."  Panelists Terry Turnipseed and Thomas Oldham made the case that law professors should continue to push for an expansion of community property schemes and the erosion of the old common law/separate property norm.  In opposition, Andrea Carroll argued that extending community property is a mistake.  She contends, in short, that community property regimes incentivize divorce and hand too many rights to creditors.  I thought Professor Carroll raised some very sharp points (and her paper on the subject is excellent), but I don't think she had the better of the argument.  First, although community property may incentivize divorce in a few limited situations, overall it sends a far better message about the meaning of marriage.  Second, states could easily fix her concerns about creditors rights without jettisoning the whole system. 

The question and answer segment raised another fun question: If the economic partnership theory that underlies community property is more in-tune with the way society currently views marriage (and creditors like the system), why hasn't it caught on?  Why aren't more states rushing to adopt community property?  Is the T&E bar really that resistant to learning a new set of laws?  Is the T&E bar really such a shadowy, all-powerful cabal?  Will states change their ways as men fall further and further behind women in educational attainment and job prospects?

Steve Clowney   

(photo credit: Amazon)

Uniform Partition of Heirs Property Act

Thanks to a post by Kathleen Bergin at the Faculty Lounge, I see that NCCUSL has approved the Uniform Partition of Heirs Property Act.  I haven't had a chance to read it yet, but it might make sense to incorporate the UPHPA into your coverage of concurrent interests.  Of course, we'll have to see whether states adopt it over the next couple of years.

Ben Barros

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Slave Plantation in Maryland

The New York Times has an excellent article on the plantation where Frederick Douglas lived--there is even some cemetery talk in the article.

Alfred Brophy

Echeverria on Stop the Beach Renourishment: Why the Judiciary is Different

John D. Echeverria (Vermont Law School) has posted Stop the Beach Renourishment: Why the Judiciary is Different on SSRN.  Here's the abstract:

This essay, one of a collection of essays on Stop the Beach Renourishment v. Florida Department of Environmental Protection to be published by the Vermont Law Review, has two objectives. First, it attempts to situate the Supreme Court’s debate over the judicial takings concept within the framework of established takings doctrine. The results of this analysis suggest that the justices’ split over the judicial takings concept reflects fundamental disagreement about the relative virtues of per se vs. ad hoc analysis and about the nature of the Takings Clause as a constraint on government action.

Second, this essay assesses the merits of the judicial takings concept by analyzing the core issue of whether court rulings, like actions by the other branches of government, can constitute “takings” within the meaning of the Takings Clause. Contrary to Justice Antonin Scalia’s argument that all branches of government must be treated the same under the Takings Clause, this essay concludes that there are numerous reasons for treating courts differently, including: (1) the judiciary is not vested with the eminent domain power; (2) the rationale that takings liability serves to constrain majoritarian political impulses generally does not apply to the judicial branch; (3) the judicial takings concept would undermine the relationship between the federal and state court systems; (4) the state courts’ institutional structure provides a relatively strong assurance of fidelity to federal constitutional values; and (5) court rulings on property law issues tend to apply broadly across the community rather than single out particular individuals to bear special burdens.

Ben Barros

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What would you save if your house were on fire?

I am at the tail-end of packing up our house to move to Winston-Salem.  The truck comes on Tuesday!  For days, I have been categorizing my personal property into: (i) stuff we're taking; (ii) stuff that we don't need or want but someone might, i.e. Goodwill; and (iii) stuff we don't need or want and nobody else needs or wants.

I am struck and frankly embarrassed by the sheer amount of stuff that we have accumulated.  But this isn't a diatribe on the rampant consumerism of which I am equally guilty.  No, this task is super-boring, so I began trying to figure out a fourth category -- what would I save if the house were on fire?

Dispense with the easy stuff -- spouse, kids, pets.  Let's just focus on personal property.

The vast majority of stuff that I have is replaceable, given sufficient insurance proceeds.  I'm left with three categories of irreplaceable (or replaceable only at a time and expense that won't be adequately compensated by insurance): family heirlooms, art, and information (most of which is digitized).  I am struck by the contrast between the categories. 

I am the family historian, so I have LOTS of family heirlooms (just ask my husband).  Civil War discharge papers, family Bibles from the mid-1800s, a receipt for a land purchase in 1830, family photos from the turn of the last century, handwritten marriage certificates, deeds, wills, military papers.  My maternal grandmother's set of kitchen crockery and my paternal grandmother's wedding ring.  A cherry china cabinet made by my great-great grandfather in the late 1800s.  The desk from my grandfather's general store.  A lot of stuff.  So you can see that choosing five items from that assortment would be heartbreaking.  The china cabinet would have to burn.  Its just too darn heavy.

But the family heirloom category is other people's stuff that defines their lives.  What personal property defines mine?  Besides my wedding ring and the art that I've acquired or made, it would seriously have to be my iPhone.  Because the personal property that is most important to me is information -- pdfs, mp3s, jpgs.  My important personal property has been digitized and saved on a passport hard drive smaller than an index card.  As long as I grabbed that and my iPhone, and as many family heirlooms as we could carry (most of which are scanned in on that hard drive, btw) we'd be okay.

What five items would you save if your house were on fire? 

Tanya Marsh

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