California Supreme Court Justice Janice Brown has been confirmed to a seat on the DC Circuit Court of Appeals. Advocates and parties with interests in information policy will recall the following passage from her dissent in Intel Corp. v. Hamidi:

Those who have contempt for grubby commerce and reverence for the rarified heights of intellectual discourse may applaud today’s decision, but even the flow of ideas will be curtailed if the right to exclude is denied. As the Napster controversy revealed, creative individuals will be less inclined to develop intellectual property if they cannot limit the terms of its transmission. Similarly, if online newspapers cannot charge for access, they will be unable to pay the journalists and editorialists who generate ideas for public consumption.

This connection between the property right to objects and the property right to ideas and speech is not novel. James Madison observed, “a man’s land, or merchandize, or money is called his property.” (Madison, Property, Nat. Gazette (Mar. 27, 1792), reprinted in The Papers of James Madison (Rutland et al. edits., 1983) p. 266, quoted in McGinnis, The Once and Future Property- Based Vision of the First Amendment (1996) 63 U. Chi. L.Rev. 49, 65.) Likewise, “a man has a property in his opinions and the free communication of them.” (Ibid.) Accordingly, “freedom of speech and property rights were seen simply as different aspects of an indivisible concept of liberty.” (Id. at p. 63.)

The principles of both personal liberty and social utility should counsel us to usher the common law of property into the digital age.

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