It Was Never Property | Reclusive Libertarian

In late 2023 Sony told the people who owned its game consoles that a batch of movies and shows they had bought, and paid real money for, and pressed a button marked “Buy” to acquire, would be deleted from their libraries at the end of the year, because a licensing deal had lapsed. The purchase, it turned out, was a revocable license wearing the word “buy.” The moment the paperwork behind the scenes expired, the thing on the button stopped being yours. Sony later walked that particular deletion back after the outcry. The structure of the deal did not change. As the industry drifts further from physical media, this stops being a quirk and becomes the model. And the internet answered with a slogan that has been everywhere since: if buying isn’t owning, then piracy isn’t theft.

I understand the anger completely. I think the slogan is wrong twice over, wrong in its words and wrong in its target, and the two mistakes are really the same mistake. The people saying it have the grievance right and have handed their opponents the victory anyway.

The word does the other side’s work

Take the second half of the slogan, “piracy isn’t theft,” because it gives the whole game away. Copyright infringement has never been theft, and it has never been piracy either. Both words are metaphors, and both were chosen by the people who benefit from you believing the metaphor is literal. Theft means someone has less than he had before. When you copy a film, the studio still has what it had a moment ago. Another copy simply now exists in the world. Thomas Jefferson saw this two centuries ago and put it better than anyone has since. He who receives an idea from me, Jefferson wrote, receives instruction himself without lessening mine, as he who lights his taper at mine receives light without darkening me. Ideas are not loaves of bread. Copying is not taking. The entire moral charge of the word “theft” depends on a physics that does not apply.

“Piracy” is the same trick in an older costume, a word for cutthroats who boarded ships and killed men for gold, pinned onto a teenager copying a song. The counter-slogan misses this about its own cleverness. When you answer “piracy isn’t theft,” you have still said “piracy.” You have accepted their noun and asked only for a lighter sentence. You are arguing on ground they surveyed and fenced, defending against a charge you should have refused to let them file. The frame was the whole battle, and it was lost the moment the word was conceded. The honest description of what Sony’s customers are tempted to do is copying, or at most infringing a limited government monopoly. Say that, and the outrage drains out of it, which is why the other side will never say it.

What copyright actually is

The slogan quarrels about the punishment while surrendering the premise. It treats copyright as a kind of property, so that the only question left is whether copying it is stealing. But copyright is not property, not in the way your house or your savings or the bread in your kitchen is property. It is something narrower and stranger, and the founders were careful to say so.

The power lives in one clause of the Constitution. Congress may act “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Read what that sentence is doing. The founders did not speak here the way they spoke of life and liberty. The sentence grants a power, for a stated purpose, to promote progress, and hedges it with a hard limit, for limited times. Copyright is a monopoly the public agrees to create, on purpose, for a while, because a temporary monopoly is judged the price worth paying to get more books and inventions into the world. And the deal has a second half that everyone now forgets: when the limited time runs out, the work belongs to everyone. The public domain is the whole reason the public agreed to grant the monopoly in the first place. The bargain was always temporary privilege now in exchange for common inheritance later.

This is the classical-liberal reading, and the great liberals said it plainly because they distrusted monopoly in their bones. Thomas Macaulay, arguing against a term extension in 1841, called copyright “a tax on readers for the purpose of giving a bounty to writers,” a necessary evil to be kept as short as the good it did required, and no shorter and no longer. He did not think authors should starve. He thought a monopoly was a serious thing to hand a private party, justified only by its public payoff and dangerous the instant it outlived that payoff. That is the tradition the word “property” was invented to make you forget.

How the bargain was broken

Once you see copyright as a deal, the story of the last century reads as one side quietly tearing up its side of it.

The first American copyright, in 1790, ran fourteen years, renewable once for fourteen more, so twenty-eight years at the outside, after which the work was everyone’s. Today copyright runs for the life of the author plus seventy years, and for a work made by a corporation, ninety-five years from publication. Steamboat Willie, the cartoon that introduced Mickey Mouse, entered the public domain in 2024. Ninety-five years for one short film, and it took an act of Congress named, only half in jest, the Mickey Mouse Protection Act to stretch it even that far. When that extension was challenged, in Eldred v. Ashcroft in 2003, the Court shrugged and let it stand. “Limited times” became a phrase that limits nothing a determined studio cannot outlast. The public domain, the public’s half of the bargain, has been starved for a generation.

Then came the locks. The Digital Millennium Copyright Act of 1998 made it a crime to break the digital protection on a work, even one you lawfully own, even to do something you have every right to do, so that the copy you paid for is a copy you may not open, move, preserve, or repair without the owner’s permission. And running under all of it was the linguistic coup, the rebranding of this bundle of temporary, purpose-bound privileges as “intellectual property,” three words engineered to make a limited public grant sound like a natural and eternal right, the moral equal of the deed to your land. Once the public accepted that copyright was property, every argument was pre-decided. Property, once the public accepted the word, was forever and absolute, and taking it was theft. The word did in the public mind what no statute could have done at the ballot box.

The lie inside the word “Buy”

Which brings us back to Sony, and to the one piece of law that actually protects an owner, the piece digital licensing exists to destroy. It is called first sale. Since a 1908 case called Bobbs-Merrill, and by statute ever since, the rule has been that once you buy a copy of a work, you own that copy. Not the copyright, the copy. You may lend it, resell it, give it away, or keep it on a shelf until you die, and the publisher has nothing more to say about it. First sale is why a used bookstore is legal and why you never worried that a novel might be repossessed. It is the ordinary meaning of the word “buy.”

Digital distribution was built, deliberately, to route around first sale. Call the transaction a license instead of a sale, and the copy is never yours. You are renting access on terms the other party can rewrite or revoke. This is why Sony could announce that films its customers had “bought” would vanish. Not because of a glitch. The word “buy” on the button was a marketing decision, and the license in the fine print was the actual deal. That is the injustice the slogan is groping toward and cannot name, because it is still arguing about theft. The scandal is that buying is no longer owning. A company can take your money under the most ordinary word in commerce and hand you something that vanishes when its lawyers say so.

What I am not saying

The careless version of this argument leaves doors open, and it deserves to be attacked if it stays sloppy.

Do not hear this as go copy everything. The slogan’s real defect is that it slides from a true grievance to a false permission. That Sony broke faith does not make every download an act of justice. The anger is earned. The blanket license to copy is not what follows from it. Diagnose the wound without prescribing that particular medicine.

I want creators paid. I want no part of the “information wants to be free” fantasy that would abolish copyright and leave the songwriter and the novelist and the small studio with nothing. A monopoly long enough to earn a living from your own work is the legitimate core of the whole system. The public domain bargain requires that there be a copyright first. You cannot inherit in common what no one was ever given reason to make. The enemy here is the ninety-five-year corporate term. The license masquerading as a sale. The lock that outlives the company that sold it. Not the fifteen-year copyright.

And this is a different fight from the one I have deliberately stayed out of. When I argued that the AI labs owe the public a return on the corpus they trained on, in The Last Enclosure, I said plainly that it must not become a copyright claim, because copyright would route the money to the largest rights-holders and drag everything into court. That still holds. This essay is not claiming infringement against anyone. It is attacking the frame that turned a public bargain into a private right, which is a separate matter and, if anything, the other side of the same coin.

Restore the bargain

Remember whose deal this was, and take the public’s half back, honestly and out in the open. That is the answer. Not abolish copyright. Not defend what copyright has become.

Make the words true first. If a transaction is a revocable license, a seller may not call it a sale, and the button may not say “Buy.” A plain rule against deception, and it would end half the abuse on its own. Not even a copyright reform.

Restore first sale to the digital world. What you buy, you own: to keep, to lend, to resell, and to hold onto after the seller has lost interest or gone out of business. A purchase that can be deleted from a server was never a purchase.

Bring “limited times” back to something a human lifetime and a living public domain can breathe under. Reasonable people can argue the number. No reasonable person can defend ninety-five years as what the founders meant by limited.

And unlock what people own. If you bought it, you may open it, move it, preserve it, and repair it, and no law should make a criminal of you for picking the lock on your own front door.

The people chanting that piracy isn’t theft have the grievance right and the language wrong. They are not pirates. Copying was never theft. What they are furious about is not that they cannot copy freely. A bargain struck to serve them, the public, has been rewritten until the public gets sold a button marked “Buy” that owns nothing and can be emptied at will. Copyright was a deal to promote progress and end in the commons. Ask for the commons back. Not because piracy isn’t theft, but because buying is supposed to be owning, and the Constitution never promised the studios a single day more than a limited time.