American Property: A History of How, Why, and What We Own

by Stuart Banner

In America, we are eager to claim our homes, our ideas, our organs, even our own celebrity. But beneath our nation’s proprietary longing looms a troublesome what does it mean to own something? More what is property? The question is at the heart of many contemporary controversies, including disputes over who owns everything from genetic material to indigenous culture to music and film on the Internet. To decide if and when genes or culture or digits are a kind of property that can be possessed, we must grapple with the nature of property itself. How does it originate? What purposes does it serve? Is it a natural right or one created by law? Accessible and mercifully free of legal jargon, American Property reveals the perpetual challenge of answering these questions, as new forms of property have emerged in response to technological and cultural change, and as ideas about the appropriate scope of government regulation have shifted. This first comprehensive history of property in the United States is a masterly guided tour through a contested human institution that touches all aspects of our lives and desires. Stuart Banner shows that property exists to serve a broad set of purposes, constantly in flux, that render the idea of property itself inconstant. Despite our ideals of ownership, property has always been a means toward other ends. What property signifies and what property is, we come to see, has consistently changed to match the world we want to acquire.

Genres: History, Nonfiction

340 pages, Hardcover

First published March 1, 2011

Reviews

[Frank Stein · Rating 5 out of 5]

Of course this is not supposed to be a comprehensive history of American property law. What it is is a look at some of those areas where the law of property has changed the most in the past 200 years, and what that means for our understanding of property in general.

First Banner disposes of the old saw that property was once purely based on tangible objects while now property deals mainly with intangible things. Old English landed property was in fact loaded with intangible rights, like the advowson, the right of a particular landholder to appoint a minister to a church, or dignities, the royal title associated with land. Many of these "incorporeal hereditaments" were dissolved upon contact with American open fields, and thus in a sense property became MORE tangible as time advanced. Other intangible property rights, such as the right to continue holding a public office, were translated from property rights to mere temporary grants of trust from the state, this time under the force of American republicanism.

Much of this book, though, has to do with how new rights to property were created as different interest groups battled over the benefits and costs of technological change. Banner's chapter on rights in sound is perhaps the most revealing. While composers and their sheet music were covered under U.S. copyright law since 1831, they were not allowed to restrict or license public performance of their songs, as playrights were able to do for their productions, and it took 60 years of battles in Congress to give them a right to collect from concerts. Yet just as composers began receiving royalties, they were threatened by the new technology of automatic piano-sheet rolls, which the Supreme Court in 1908 said was not a violation of copyright or a taking of their property. Soon Congress gave composers rights to those rolls and to reproductions on new phonograph records, but this right was circumscribed by demanding a legislated price of two cents a copy. This grant was then a kind of quasi-property right, not equivalent to the old rights on sheet music. But what about the rights of the recording itself, as opposed to the written song it was based on? When early phonograph companies began pirating others' records, some judges thought this was legitimate as long as the original composer was paid. After all, who had rights to a recording? The company? The musicians? What if there were a hundred musicians in an orchestra, were they all given rights? What about editors? The dilemma of dividing rights meant all of these potential rights went unacknowledged and infringement was rampant. The problem was exacerbated when radio began playing records and courts decided the recording industry had no rights to those proceeds either. It wasn't until 1972 that Congress declared that sound recordings could be copyrighted, by the recording company, but it also said that THAT copyright did not include the right of public performance, namely radio play, so even that right, relative to those for composers, was restricted. In sounds, each technological change was accompanied by calls for new property rights and new laments that technology was destroying the music industry, and each change led to new compromises on where and how to draw the line on who owned what. It's all wonderfully apropos.

Other chapters deal more with debates and struggles over defining property in judge's chambers rather than in Congress and state legislatures, such as the battle over who owned news reporting. In the early 20th century the Associated Press went before state courts and finally the Supreme Court (1918) asking them to declare that the information in their news was a kind of "quasi property," and thus they could restrict other companies, such as William Randolph's Heart's INS, from copying their reporting. The Supreme Court agreed, and the AP went on to become a semi-monopolistic news powerhouse. In another example of judge-made law, the "Right to Privacy" was established when judges began declaring that citizens had a right to forbid use of their picture and name in public, and soon judges expanded that to include the right of celebrities to charge and sell for the right to use their picture and name. But this always produced conundrums. What if someone was portraying you in a semi-fictional book? What if they were reporting you as news? What was "news" reporting exactly as opposed to advertising? As property rights in the self expanded, judges had to confront all of these problems and more.

On the whole, this book is wonderful evidence that the law of property has always been in flux, and that questions of exactly where one's property rights end and another's begin will always perplex jurists and lawmakers. Again and again in our history courts were forced by circumstances to declare that some new property right is really a "quasi property" right, distinct from the complete control one often associated with owning property. Thus this book also proves that there is no way to ever define exactly what property is, or what it means for those who hold it or fight over it.

[Howard Mansfield · Rating 4 out of 5]

“Information wants to be free,” goes Stewart Brand’s famous edict. In the next – and less often quoted sentence – he said, “Information also wants to be expensive.”
The first sentence is invoked to declare the end of the copyright, and to declare the ownership of intellectual property to be an illusion. But Brand’s statement is actually quite traditional. It is just another episode in our changing definitions of property.
Our ideas about property – about rights to ownership – have always been in flux, as Stuart Banner shows in his superb history, American Property.
At the nation’s founding, Americans threw out centuries of feudal laws, layers of “incorporeal hereditaments” – rights and privileges associated with owning land: escuage, burgage, knight service, frankalmoin, advowson, tithes, corodies, dignities. All gone. Land was now a commodity, to be bought and sold, and owned, “free and clear.”
What was considered “property” in 1790 would not be the same thing in 1890 or 1990. It changes all the time, says Banner. He explores the changes in the right to having property in music, the news, radio wavelengths, body parts, genes, plant hybrids, condo and co-op apartment buildings, and, of course, information and music online. Fame, it turns out, has an interesting history. Before the 20th Century, a famous person didn’t own his own name or likeness. Ben Franklin arrived in Paris to find his face used everywhere. He was amused. His face, he wrote his daughter, was “as well known as that of the moon.”
Perhaps the most far-reaching change came in the legal definition of property. It wasn’t the thing itself, lawyers argued in the late 19th Century, but rather it was a “bundle of rights,” a set legal relations in the object. Owning a “bundle of rights” rather than a few acres would have a profound effect in limiting how government regulated land.
American Property is a smart history. Only the title is dull.

[Andy Oram · Rating 5 out of 5]

Banner's book is a highly readable survey combining the general with the specific. While he covers a wide variety of aspects and things in property law, he preserves some threads from one chapter to another, such as the notion that property is defined by the goals of litigants and governments. There are many useful accounts of familiar incidents in American law, such as the "Right to Privacy" article by Warren and Brandeis. (Read the book to find out how privacy evolved into a property right.) But even more valuable are the histories of epochal shifts through court cases that are little known among the general public. I found Banner to be generally fair to all sides. It is probably a tribute to say that he does not establish easy choices, but shows the dilemmas inherent in almost any legal decision.

[Evan Thomas · Rating 5 out of 5]

A very readable history of the way the concept of property has changed in America. Of particular interest is how earlier battles over things like piano rolls mirror current battles over music downloads. Banner is especially good at showing how changing views of what is property alter even how people make music.

[Tobe · Rating 5 out of 5]

Wonderful overview of the development of property law in the United States. Written for the general reader but highly recommended for the lawyer or students who need an introduction to main themes and debates.

[Robert Houston · Rating 3 out of 5]

Improved my understanding of US history.

[Ben Sowell · Rating 4 out of 5]

A bit dry, but interesting and well written.