Search for property rights

Private property, real and intellectual, is under constant attack these days by folks who insist they represent the public good.

The Supreme Court, for example, in its instantly infamous Kelo decision has expanded the power of eminent domain to allow state and local jurisdictions to seize property and turn it over to others simply because the new owners might develop or use it in a way that will increase the jurisdiction’s tax revenues.

Private property, real and intellectual, is under constant attack these days by folks who insist they represent the public good.

The Supreme Court, for example, in its instantly infamous Kelo decision has expanded the power of eminent domain to allow state and local jurisdictions to seize property and turn it over to others simply because the new owners might develop or use it in a way that will increase the jurisdiction’s tax revenues.

The court doesn’t see anything wrong with that, though the Founding Fathers are no doubt turning over in their graves at the way their words and intent have been expanded by jurists who either don’t understand or choose to ignore the meaning of the Constitution they have sworn to uphold.

Today, though, everything is justified in the name of the people or the public good. The free-speech guarantees of the First Amendment, for example, no longer apply to political speech because reformers acting in the name of the people have decreed that other values simply outweigh the value of free speech. The Fourth Amendment’s safeguards against unreasonable search and seizure don’t mean much to a government that believes its primary mission is to protect us while forcing us to give up rights we have enjoyed since the founding.

That government can get away with so cavalierly dismissing traditional rights is bad enough, but that private parties aping the rhetoric of public good are doing the very same thing is perhaps even worse.

Consider the ongoing battle between Google and the U.S. publishing industry over whether Google can, in the name of making searchable information available to the public, ignore copyright law and make an author’s work available through its search engine, regardless of the author’s wishes and without paying royalties for doing so.

The ability to “google” a subject makes research in today’s world easier than ever in the past, and many of us would be almost lost without being able to do so. As anyone with a computer knows, more information is available via this research route than one can imagine.

There is no doubt in my mind that if absolutely everything out there was fed into the Google data base so that we could search it for the information we seek, life would be even easier for us. It would also be good for Google’s search engine to move from convenience to indispensability.

To say that there would be a demand for such a comprehensive research engine is to understate the obvious, and the folks at Google are intent upon providing just that. They have decided to scan the complete contents of various libraries, and a number of libraries have worked with them to get this done. The problem is that, with the exception of books that are “out of copyright” and therefore in the public domain, the scheme involves taking the intellectual property of hundreds of authors with neither permission nor compensation … something that the authors who labored to create the works are understandably not all that happy about.

To be fair, Google says it won’t make entire copyrighted texts available or printable to Google users and argues that this limit makes what it is doing legal and should actually increase book sales to those who want the entire text. Many authors and publishers aren’t buying the argument; they are in court to stop the “taking” of their property by a private corporation that argues its right to do so on the basis of public and social good.

To them, the question is not whether the database Google wants to create will be useful to others but whether its potential usefulness justifies Google’s “taking” with neither permission nor compensation. Unless a compromise can be reached, this question will have to be addressed by the courts.

Given the nature of the decisions our courts are handing down these days, one would be foolish to bet on the outcome of this case. The United States takes the position internationally that intellectual-property rights are sacrosanct and deserve protection. Congress and the White House are, in fact, quick to confront nations that pirate our music, films and books.

Whether our courts will be as ready to protect these same private rights within our borders is another question. The success of the argument that the social benefits of ignoring an author’s right to control his own output supersedes the traditional right to intellectual property right protection remains to be seen.

Fortunately, the text of our Constitution is available through Google, so maybe the judges hearing the case will find it.

Keene, chairman of the American Conservative Union, is a managing associate with Carmen Group, a D.C.-based governmental-affairs firm (www.carmengrouplobbying.com).