Do you own that song?

Posted by shonk at 07:59 PM in Ramblings | TrackBack

I’m not going to comment on the Supreme Court’s latest decision, though I suspect most readers will be able to guess my opinion. I’m also not going to comment on the recent success of SpaceShipOne, though I agree with Dave Masten that, although this may not be the dawn of the space age, the eastern sky is definitely getting brighter.

Instead, I want to post a response I wrote today to someone who claimed that people who don’t recognize “intellectual property” do not have a “philosophy of property”. As you read this, keep in mind that this isn’t an issue completely settled in my own mind. As you’ll note, I do think that ideas can be owned, but I do not think that this ownership is as complete as many defenders of “intellectual property” would like to think. With that in mind, to the argument:

Nobody, but nobody, is claiming that you don’t own the products of your labor. Rather, anti-IP types are, by and large, simply arguing that the control implicit in ownership does not extend to a right to control the actions of others who are doing no harm to you.

Suppose, for example, that you come up with a catchy tune this afternoon. Now, this is the product of your mental labor, and hence you would surely argue that you own this tune. And that is entirely true. You have complete and utter control over what, if anything, you will do with this tune, and nobody, not even hypothetically, has the ability (let alone the right) to use this tune in a way not acceptable to yourself. Your ownership of this tune is more complete, at least in the sense of the degree of control you exercise over it, than your ownership of your car or your shoes or your nailclipper.

You may choose to simply keep the tune in your head, that you may enjoy it. You may choose to pick up your guitar and play the tune to yourself, allowing you to enjoy the tune aurally as well as mentally. You may choose to record the tune on some form of magnetic or electronic media, so that you may enjoy the aural experience passively. At this point, you still have complete and utter control over the tune.

Now, suppose keeping this tune to yourself isn’t as satisfying as you might like, and you decide to play the tune for others, or to give them a CD on which you’ve burned the tune. Now, we come into an entirely different realm. You no longer have complete control over the tune as a mental construct. The people to whom you’ve given a CD can now play it whenever they like, even if you might disapprove of them, say, playing it while they masturbate. By doing so, they are not damaging you in any way and so it would be illegitimate for you to assert control by way of force over them in an attempt to prevent them from playing the tune on their CD player while masturbating. In much the same way, if you toss a twenty dollar bill out the window, you have no right to assert that the person that picks it up is under an obligation to use it only to purchase products you approve of.

Similarly, you of course have the right to sell CDs with your tune on them, rather than giving them away. Again, though, you do not have a right to control where or when your customers play those CDs, just as you don’t have the right to prevent the person to whom you’ve sold your car from entering it in a demolition derby or driving it to Nevada (of course, all of these things can be specified by contract, but we’re arguing purely philosophically here, in a sort of legal vacuum).

Now, suppose one of the people to whom you’ve given or sold a CD decides that he will, in turn, sell that CD to someone else, rather than keeping it. Again, I think we would all agree that you have no right to prevent that person from doing so.

Suppose, instead, that instead of merely selling his copy of the CD, this person makes a dozen copies and sells them. Certainly, if he has legitimately acquired the CD, he has a right to do with it however he wishes, including inserting it into certain electronic devices that may transfer the data contained therein to other storage media. So nobody could reasonably claim that the copying itself is illegitimate. Rather, it must be the act of selling those copies which is anathema. Now, in our hypothetical, this person has obtained the blank CDs onto which he’s copied the tune legitimately, and he certainly has the right to sell those blank CDs unaltered, so, if we are to say that selling CDs onto which the tune has been copied is wrong, we must have a very good reason for doing so.

Specifically, it must be demonstrable that selling those CDs is causing actual damage to some other person (this is, after all, why stealing something is wrong; it’s not the moving of your car to another city, in and of itself, that’s important, but rather the damage I do to you by taking your car). And so, to demonstrate that the selling of those burned CDs qualifies as theft, it is necessary to demonstrate that somebody has been damaged by this sale.

Before we get into this particular issue, though, note how already the situation is different from that embodied by the theft of some material thing: when I steal your car, I’m depriving you of your car, and whether I turn around and sell the car or not is ultimately irrelevant to the situation; when I “steal” your tune, the claim is that the crime occurs at the time of dissemination (because, after all, I have every right to make a dozen copies of your CD for, e.g., my personal collection). More basically, when I steal your car, I deprive you of that car; when I “steal” your tune, I do not deprive you of your tune, as it still (presumably) resides in your mind and on the original CD that you made. This, in and of itself, makes “intellectual property” different from “ordinary property”; defenders of “intellectual property” claim that one can steal it without depriving the original owner of it. Therefore, it should come as no surprise that this is where many people stop: how can you steal something from someone when they still have the thing you supposedly stole? This is a very reasonable question, but I agree that it doesn’t completely put the issue to rest. After all, assault isn’t stealing (at least not without some contorted reasoning), but it’s still wrong. If it can be demonstrated that you, as the creator of the tune, are damaged by someone selling copies of CDs which will play that tune when used appropriately, then surely a crime has been committed, even if it’s not theft in the usual sense of that word.

The point is, the defender of “intellectual property” needs to demonstrate that the creator is damaged by the dissemination of his creation through undesired channels. Going back to our example, we would need to demonstrate that you are damaged by the sale of those 12 burned CDs. Now, it’s clear that those 12 CDs aren’t going to actually physically injure you, or take money from your bank account that you’ve already deposited, or in any other way damage the property you already own. And so, here arises the misleading concept of “potential damages”. That is, the notion that the sale of those 12 CDs has potentially prevented you from making money from selling your own copies, that your future earnings may be lower. However, this idea is flawed in two basic ways. First of all, these potential future sales are simply impossible to quantify. The only way to quantify them would be to turn back the clock and re-run time with everything exactly the same as it was with only one difference: that the sale of the 12 copied CDs never happened. This is clearly a physical impossibility. Maybe all 12 people who bought copied CDs would have purchased CDs from you, maybe a few of them would have, maybe none of them would have. Maybe those people turned around and sold burned copies of their own, maybe they only played those CDs in private, or maybe they played them at parties, thereby actually marketing the tune to people who would otherwise never have heard it, resulting in bigger sales for you. It’s simply impossible to tell, even if we grant the notion that you have a right to all revenue from sale of the original tune, which situation obtains in any given case.

The more fundamental flaw, however, addresses this last notion. You do not have the right to all revenues from the original tune. Saying you do equates to the notion that, if you toss a twenty out your window and the guy who picks it up invests in a stock that’s about to blow up, that you have a right to the money he made by selling the stock. Or, to take another example, if you sell me some scrap aluminum that I make into a sculpture, you don’t have a right to my earnings from the sale of that sculpture (and, similarly, gun manufacturers should not be liable for what their customers do with their products).

You have no right to compensation for your labor; you are free to get the best price you can for it, but society is not obligated to reward you for your labor. If I dig a hole and then fill it in, I don’t have a right to compensation. Labor is not innately valuable. You have the right to try to get as much as you can for your tune, but if you don’t get as much as you think you should have gotten, you are not being damaged by that fact. Perhaps I’m not explaining this very well, but my question is simple: On what grounds does one have a claim to something that isn’t real? Potential future earnings are not, to put it bluntly, real; they’re potentialities, dreams of a future that may never come. In fact, the argument that you own the potential future revenues of your song is basically saying that you own the future decisions of others and that they have an obligation to purchase your song.

And so on…