Defining Property - <AUTHOR> http://paulgraham.com/property.html <comment><USER4> PG is articulating the philosophy of natural law applied to present circumstances. Natural law is one of those tenured ideas that we always rediscover or reinvent when our statute laws start going too far astray. Many bright thinkers have explored the idea, and you'd do well to explore it yourself if you haven't yet:

<http://en.wikipedia.org/wiki/Natural_law>

The basic idea is that good laws are things we discover rather than create. Their form is dictated by the form of our being and intellect and the shape of our world. Any enforced law that contradicts this natural law will create the sort of friction and injustice that we would have seen with SOPA.

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Edit #1.1: As others have pointed out on this thread, the idea of owning non- scarce and easily-spread things is unnatural. So if technology makes a previously containable and scarce thing non-containable and non-scarce, then our ideas about what exactly can be property will change without having to believe that natural law itself had to change. This is the essence of Paul's argument, and why it fits with natural law theory. Technology changes the shape of our world.

Edit #2: All modern natural law thinkers I know of would assert that slavery always violated natural law in perhaps the worst way possible, so I don't see how Paul's concurrence that ending slavery was a good change in property law distances his position from natural law theory. It was always unnatural, and eventually we discovered and corrected that in our statute laws, prompted largely by the growing friction our divergence from natural law was creating.

Edit #3: There are various schools of natural law. My definition of it goes along the lines of, "the rules that humans living in a particular environment, starting with no preconceived notions, would voluntarily and near-universally adopt for their mutual benefit." If you're from a school that believes natural law exists without any reference to our environment, then you may disagree with my premise and everything that extends from it.

<comment><USER5> I think PG is actually arguing something closer to the opposite of this - instead of property being a natural concept with a single, universal, and unchanging definition, it is something a bit more ephemeral. A smell is valuable property on the moon, but not on the Earth. A song was valuable property twenty years ago, but twenty years in the future...who knows?

How this definition changes has a lot to do with technology, society, and human nature. That last one gets pretty close to 'natural law', but there's a lot more going on there as well.

<comment><USER6> Agreed. It's pretty clear that PG is actually advocating a pragmatic approach to moral reasoning. Natural Law, as I understand it, advocates a moral order which is evident from the natural order and which exists before any human understanding of right and wrong. If our understanding of property changes with the circumstances of our society, then the right of property doesn't emanate from the natural order but from the human order.

Interestingly, there have been a number of attempts to reduce property rights to first principles. Modern Libertarians often consider property rights to be _the_ first principle, but older classical liberal philosophers such a Locke believed that property was an offshoot of labor. That is, man has a right to product of his own labor and only by labor and continuous use can he claim to properly own something. I think this approach has some merit as it neatly gives voice to one of the reasons we feel that some forms of theft is justified and others are not.

<comment><USER7> Most libertarian exegeses on property rights take a vaguely Lockean tack. Of course, a Lockean tack may justify intellectual property as the fruits of intellectual labor.

<comment><USER8> But there are two opposite concepts of morality that people apply to property relations: in one view, the moral 'negative' is attached to depriving a person of what he has justly earned or created; in the other view, the moral 'negative' is attached to obtaining the benefit of what you have not yourself earned or created.

I'd argue that most libertarians would adhere to the first view, which roots the moral principle in a manifest social context - i.e. the the harm one does to _others_ \- as opposed to the latter view, which roots the moral principle in a more solipsistic context - which I assume the be the psychic or spiritual harm one does to oneself. (This is expressed in consequentialist terms, of course, but I'd expect there to be an equivalent deontological dichotomy).

It's probably valid to describe the former as a Lockean view, but I don't see how it could justify the extension of property rights to non-rival and intangible goods, such as ideas, since it's literally impossible to deprive anyone of them in the first place.

<comment><USER7> You have to examine what it means to deprive one of property though; certainly, depriving one of their property's _commercial value_ is a deprivation. Certainly if I seize your house and rent it back to you, such that you're paying the same for rent as you would for your mortgage, but you lose any equity in your house or the ability to sell it to someone else or pass it on to your children, I've meaningfully deprived you of property. Likewise, if you write a book, the value of that book to you is at least partially _commercial_ , not merely in your ability to possess a copy of it.

<comment><USER8> If you wrote the book in order to obtain an exogenous financial return, then your creation of the book was a capital investment. Capital investments are speculative by nature, and inherently entail risk, which is the investor's to bear.

Using statute law to impose restrictions and obligations on others in order to protect some imagined entitlement to a positive return amounts to externalizing your risk and forcing others to bear it for you.

You're completely entitled to enjoy the fruits of your labor after applying your energies to create the book, those fruits being the book itself and the utility that _owning_ it provides to you, which you literally cannot be deprived of due to the non-rival intangible nature of the product (considering that 'book' refers to the conceptual content rather than its physical encoding).

The financial return that you obtain by selling your book to others, however, is entirely dependent on their willingness to pay you, which they have no obligation to do in any case, and for which it can't be said that you have any inherent right.

<comment><USER7> > Using statute law to impose restrictions and obligations on others in order > to protect some imagined entitlement to a positive return amounts to > externalizing your risk and forcing others to bear it for you.

Copyright is no such thing; _most_ copyrighted works don't have a positive financial return. The only "entitlement" being asserted is literally the right to copy: if I create a book, which is the fruit of my intellectual labor, I then have the right to exchange or extend or license the right to copy that book on whatever commercial, ideological, or personal terms are mutually agreeable to others, and to copy my book without such an agreement is to violate that right.

Again, I'm not saying this is my argument or my personal opinion about copyright. My approach to these issues is more pragmatic and realpolitik and less natural law. I _am_ saying that there _is_ a credible natural law argument to copyright.

Your argument--that an author still has the right to possess and enjoy the book that he has written--is insufficient as a response, since nearly _all_ property rights extend beyond mere possession and enjoyment. That was the point of the house example. If I make a capital investment in building a house in hopes of selling it, and the state seizes my title without compensation but offers to let me live in the house rent-free in perpetuity, John Locke and most proponents of the natural law theory would be very displeased about the situation. On the other hand, if I make a capital investment in building a house in hopes of selling it and I end up losing hundreds of thousands of dollars because it is the year 2010 and the housing bubble burst in the middle of construction, John Locke and most proponents of the natural law theory can only shake their heads and tell me I'm screwed.

<comment><USER8> > The only "entitlement" being asserted is literally the right to copy: if I > create a book, which is the fruit of my intellectual labor, I then have the > right to exchange or extend or license the right to copy that book on > whatever commercial, ideological, or personal terms are mutually agreeable > to others, and to copy my book without such an agreement is to violate that > right.

And how does the right to control the downstream _copying_ of the work emanate from the right to enjoy the fruits of your own labor?

The point I'm making is that the direct product of your work is the book itself and nothing more; the right to enjoy that product literally _cannot_ be taken away from you. Other people's copying activities do nothing to diminish your ability to enjoy the direct utility value of the book itself - <USER2> can _only_ diminish the potential return available to you from selling your book to others, but you never had a positive right to a market return in the first place.

The argument you're making requires that there's _already_ some legal mechanism by which you can restrain others from copying your work. Your reasoning is circular.

<comment><USER7> > And how does the right to control the downstream copying of the work emanate > from the right to enjoy the fruits of your own labor?

Because the fruits of my (intellectual) labor are the (intellectual) property of the book itself--the unique arrangement of words and images and so forth. Since I created that arrangement, since that arrangement is the fruit of my labor, by natural law I have property rights to it.

Keep in mind, I'm only arguing that such an argument could credibly be made. I'm not committing to the idea that it works out in the long run--part of the problem with the natural law approach is that you get caught in all kinds of logical ruts without any concern for what _works_ , and frankly there's a lot about copyright that doesn't work.

> The point I'm making is that the direct product of your work is the book > itself and nothing more; the right to enjoy that product literally cannot be > taken away from you.

Property rights extend beyond private enjoyment. Asked and answered.

> Other people's copying activities do nothing to diminish your ability to > enjoy the direct utility value of the book itself - copying can only > diminish the potential return available to you from selling your book to > others, but you never had a positive right to a market return in the first > place.

I never said there was a "positive right to a market return"; that was the entire point of the house example. Asked and answered.

> The argument you're making requires that there's already some legal > mechanism by which you can restrain others from copying your work.

 _All_ property rights require some legal mechanism to be enforceable. Without deeds and titles I couldn't even own my house. Asked and answered. You're just repeating yourself without understanding any of my points.

<comment><USER8> > Because the fruits of my (intellectual) labor are the (intellectual) > property of the book itself--the unique arrangement of words and images and > so forth. Since I created that arrangement, since that arrangement is the > fruit of my labor, by natural law I have property rights to it.

And since it's quite literally impossible for you to be deprived of that particular arrangement of words, images, etc., it's physically impossible for your right to be violated.

But you're not claiming just that limited property right; you're saying that you ought to be entitled to restrict others from independently creating their own replica of that arrangement of words, images, etc. which goes far beyond the scope of property rights.

> Property rights extend beyond private enjoyment. Asked and answered.

Into what other areas, then? I'm construing 'private enjoyment' here as the ability to direct the disposition of the associated property without restraint; but how does this extend to directing the disposition of other people's replicas of your property? How does it apply to inherently intangible and non-rival goods?

> I never said there was a "positive right to a market return"; that was the > entire point of the house example.

The house example was a non-sequitur. In your example, the state seized your house from you and rented it back to you; they took something that was physically owned by you, and imposed their own constraints on its use and disposition. This is a clear violation of your rights. Again, I'm not seeing how it at all compares to other people independently creating a replica of something you own without imposing any constraints on you.

The only effect third-party copying can have on you is the alteration of external market conditions, potentially reducing the financial return you can obtain from selling copies of the work yourself; but again, you never had any right to guaranteed financial returns, so no right of yours is actually being violated here.

> All property rights require some legal mechanism to be enforceable.

Absolutely false. Physical property is inherently tangible and rival, meaning that only a finite number of individuals can control its disposition at any one time; it's therefore impossible for physical property to exist without _someone_ establishing decisive control over it (or it being abandoned, in which case you might say it's not 'property' at all).

Now, people may seek to embody the process by which people establish decisive control over physical property in some sort of deliberative or judicial context, in order to reduce the possibility of disruption of their social groups arising from property disputes, but it would be inaccurate to suggest that without such a system, the concept of property would simply not exist.

> Without deeds and titles I couldn't even own my house.

No. Deeds and titles are post-hoc formalizations that _recognize_ property rights; they aren't the primordial _source_ of property rights.

<comment><USER7> Simply put, natural law doesn't presuppose that only physical objects can be property. That's a separate premise you're trying to sneak in. The act of writing a book creates an information/intellectual good, not just a physical artifact.

Look, I'm tired of repeating myself, and you're either not understanding my argument or too tendentious to even try. I don't even believe in natural law, and I think it's possible to use natural law to argue either side of the copyright dispute. If you want to obsessively argue that the natural law justification for copyright is _wrong_ from a natural law standpoint, I honestly don't give a damn. My point is that such an argument _can be made_ , and the fact that we are repeating ourselves to each other only proves my point.

If you want to discuss this further, my email address is in my profile.

</comment></comment></comment></comment></comment></comment></comment></comment></comment></comment></comment></comment><comment><USER9> So PG doesn't finish the story of Ooka Tadasuke and how he solves the case of the cook asking the student to pay for enjoying the smell of good food.

The judge asks the student to take a few coins. But instead of paying tangible coins for intangible smell, he asked for the coins to be put in a handkerchief and shook hard. And the payment to be made with the sound the coins made.

(I had heard this story as an Indian story - not a Japanese story. And Ooka Tadasuke was replaced by Birbal - the prime minister of the Mughal Emperor Akbar. "Akbar Birbal" stories are full of such awesomeness.)

<comment><USER10> Haha, that is brilliant.

It is like when the MPAA says they lost $200,000,000 or some ridiculous number to piracy, where if those pirates could not have downloaded that content they believe that each and every one of them would have translated to a full retail sale; obviously this is not true.

Instead we should grant them karma on IMDB or something :)

<comment><USER11> We should just send them billions of scanned dollar bill images.

That'd be a great campaign actually. The entire internet sending billions of "dollars" to the RIAA/MPAA for their "property".

 _Update:_ Put this page up: <http://www.sendthemyourmoney.com/>

<comment><USER12> that's a clever idea. i've been looking for something to do with "iamnotacriminal.com" - perhaps i'll have a simple site where you can pick an MPAA member (ie an executive at a MPAA member company) and send an "e-payment" of $150,000 scanned dollar bill images for each song you listen to... on the honor system for you to properly account for the songs for which you "owe". :)

<comment><USER11> Ah. I went ahead and put this up on <http://sendthemyourmoney.com/> and submitted to HN here: <http://news.ycombinator.com/item?id=3695546>

It amuses me if nothing else :-)

<comment><USER10> That is awesome!

Where did you host this?

Submitted to Reddit:

[http://www.reddit.com/r/funny/comments/qtie0/new_campaign_to...](http://www.reddit.com/r/funny/comments/qtie0/new_campaign_to_pay_the_riaampaa_what_they_are/)

<comment><USER11> On my own server. Static file + nginx _crosses fingers_.

</comment></comment></comment></comment></comment></comment></comment><comment><USER13> I watched some really lousy movie the other day while doing the treadmill (without the sound on, of course) and, as I went through my boring routine, the movie ended and the credits scrolled through for what seemed like an interminable period. As I did so, it struck me what a _very large_ number of people are involved in the production of a movie. Not just actors, not just the director, but literally thousands of people who contribute in one way or the other to the effort and (I assume) all get paid something for their contributions. One or the other of them, or perhaps most, may be getting taken advantage of by the studio that produced the thing, but they are all making some aspect of their living in being part of the process. What would happen to these people, then, if copyright were abolished and the studio incurring the expense of that production could no longer claim exclusive rights to the creative product on the grounds that there is a no-cost distribution system intact for generating as many digital copies of that product as anyone cares to make? Well, the studio could no longer use the traditional model for producing such movies because it could not "own" the resulting product. The result: any consumer could download the product without having to pay anything for it; any person could freely distribute the product for free or for a charge, as circumstances permitted, without any obligation whatever to the originating studio; any person could take the characters in that production and use them freely in any independent production without obligation to the originating studio. What is more, the studio itself could take the latest blockbuster novel and could create a movie about it without any obligation to the author. And any other author could take the conceptions of the original author and borrow them freely to create derivative characters based on the originals without obligation to the original author. And so on and so on. One can argue, of course, that all this would lead to a better society but no one can deny that it would radically change the way creative works are produced and financed. Perhaps we would see a renaissance of creativity once everything is open to be instantly shared. Perhaps we would see the opposite. One thing is sure: that large group of people whose names scrolled by on the credits would no longer be able to be paid for their work on movie productions as we have known them.

PG essentially answers, "it depends" to the question whether producers should be able to charge for content but seems to argue that the existence of no-cost distribution mechanisms is a strong factor tilting the argument toward the "possibly no" direction.

I would say that the no-cost distribution mechanism is only one factor and perhaps not even among the most important.

Protecting creative effort is to me the most important factor favoring continued copyright protection (see <http://news.ycombinator.com/item?id=3479959> for my elaboration of this theme). And this is no small point. There are literally countless scenarios apart from movie studio production where people invest creative effort into a product that is protected by copyright. My wife recently attended a conference teaching the "Gottman method" for marriage/family therapists. She received a thick workbook explaining the techniques used by the originators of that method. That material took years to develop. Yet, without copyright, my wife could take the materials, reproduce them as much as she likes, sell them for her own profit, and even modify them as she likes and distribute them as her own, all without obligation to the creators of that material. Should the law be, no, she can't do that because she received hard copies only of the materials but, had the creators distributed the materials digitally, then she could? That would be the result if the only relevant factor were the ease of distribution. But of course it is not. Nor do I think PG is arguing that it is. Insofar as his argument might be interpreted that way, I think it would be wrong.

So, yes, the legal definition of property continually changes. And the ease of distribution is a relevant factor in how those definitions should be shaped. But it can and should be outweighed by other factors such as society's stake in protecting creative effort within proper bounds (i.e., for limited times and in limited ways). Our copyright laws suck today because they were largely fashioned in 1976, well before the mass digital age. They urgently need updating. They do _not_ need updating in the SOPA manner, with the use of oppressive and overreaching legal remedies that would in their own way be "warping society" in order to achieve enforcement goals. They need to be updated in a way that strikes a balance between protecting creative effort and not having the heavy hand of the law fall on relatively trivial transgressions. This seems to be what PG is arguing. I would only take issue with placing an over-emphasis on limiting or abrogating the protections based on the distribution mechanism.

<comment><USER14> Just because there is one traditional way of providing funding for the production of, some, creative works does not mean that we need to keep going back to that same model for the foreseeable future.

There are lots of different models that work. Even today there are models that are working (pay what you want, kickstarter, freemium, live events vs. albums, merch, etc.)

You say this: _"One thing is sure: that large group of people whose names scrolled by on the credits would no longer be able to be paid for their work on movie productions as we have known them."_ but that is NOT in any way sure. Indeed, right this very minute it is trivial for the vast majority of the people who are the core market for that specific movie to obtain that movie without paying any amount of money to the studio, the artists, or the crew. It's honestly hard to imagine a world where it would be easier to do so. And yet... And yet, the world has not collapsed. The movie studios have not imploded. People still pay money for movies. People who make movies still get paid.

Why? How? This is something important worth asking. At this point only the most simplistic of viewpoints could possibly imagine a future where it is impossible for people to earn a living through making art. There are far, far too many counter examples, even of artists going out of their way to challenge the traditional assumptions and pioneer new methods for making money by creating art (Louis CK, Radiohead, Humble Bundle, Double Fine, Julia Nunes, etc.)

Unquestionably the changes in technology that have enabled unfettered sharing/piracy of digital goods will have a profound effect on the financial nature of commercial art.

But will that effect translate to a situation other than a metric crapton of art being produced every year and a great many artists making a living off of their work?

Absolutely, conclusively not.

<comment><USER15> > conclusively

I don't think it's honest to say anything "conclusive" either way in this debate. It's complex and there are a great deal of unknowns.

With regards to downloading movies, many people don't do it because it's seen as being wrong, and also illegal, and that does matter to many people.

As for the artists going out of their way, you could make an argument that they would not receive so much attention (and thus money) in a world where everyone had to behave like what they're experimenting with. Right now they stand out from the crowd, but eventually a new equilibrium would be reached where there would be nothing novel in what they do, and perhaps at that point, they'd make significantly less money, to the point where _some_ of them would have to find other jobs to support themselves, and thus produce less.

</comment></comment></comment><comment><USER16> To PG:

many of your essays have an air of someone who already gets it circle jerking[1] with the other people who already get it. You do it when you talk about Lisp, and when you talk about big companies, and you're now doing it by comparing copyright infringement to "stealing smells". Its unfortunate because it builds a cult or clique of people who "get it" rather than helps to spread an idea to the masses. It's also unfortunate because you outright dismisses other people's opinions, which is arrogant, and dangerous.

The "in crowd" understands your metaphor, but to the people who matter, those who don't already understand the issue, your metaphor is worse than useless - its actually harming our credibility. Quite easy to imagine a RIAA lawyer tearing your analogy to pieces, you know, by DH6: refuting your central point. You're arguing against an opponent without demonstrating that you even understand their argument. that's, like, what, DH3? I wish you would strive to use the incredible influence you've built up more effectively, and refocus away from the startup crowd, and towards the wider audience of people who could stand to learn something from you.

[*] DH3: <http://www.paulgraham.com/disagree.html> [1] "circle jerk" - <USER3> paused on this metaphor for a few moments, but i can't think of a better one!

<comment><USER17> I've always gotten the impression that PG's essay are aimed more at people who are somewhat unsure of what to think on a subject, who aren't fully informed and haven't reached any strong conclusion yet, and PG seeks to present his thinking and conclusions in an edifying manner that assumes that the reader can recognize and appreciate good reasoning. Writing for this audience (as opposed to targeting people who cling to conflicting beliefs) is not preaching to the choir, and is probably much more productive than railing against people who "just don't get it".

<comment><USER14> Making a compelling argument to a receptive audience. Versus: attempting to convert an unreceptive audience. Or: merely saying something that everyone in the audience already believes (which would be preaching to the choir).

Given the volume of discussion that often comes about due to pg's essays and the fact that it is rarely entirely agreement I think those essays hold a good deal of value even if they are not aimed at a universal audience.

</comment></comment></comment><comment><USER18> The major meta-issue at hand here is the problem of thinking that property has a definition in the first place. We intuitively think of property in the sense of personal possessions, which works some of the time, but is quite inaccurate for the majority of properties:

The way in which I own my business is different from the way I own my house, which is different from the way I own my car, which is different from the way I own my dog, which is different from the way I own my computer, which is different from the way I own the information contained on my computer. All of these forms entail restrictions on the rights of others beside me as regards the property, but what these restrictions are vary. Thinking that any of the rights entailed by any of these forms of property necessarily has an analogue in any of the other forms will likely get me into trouble-- save perhaps the fact that any form of property must be able to be transferred to another entity by my sole consent.

Confounding this is the fact that there exists another class of things which are not property nor possessions, but which are nonetheless _mine_ ; for example, I neither own nor possess my apartment, but it remains _my_ apartment in a real, legal sense.

So I feel addressing these issues as a question of "is this/should this be property" is putting the cart before the horse. The real, implicit question is, do the rights entailed (or rather restricted) by the relevant statutes pose a benefit, or a harm to our society?

That is the only way to have a productive conversation about intellectual property as adults interested in advancing the arts and sciences rather than as elementary schoolchildren arguing about who "stole" whose idea.

<comment><USER19> It would be great "to have a productive conversation about intellectual property as adults interested in advancing the arts and sciences" but property rights have always come down to enabling making a living. Artists and scientists until a few hundred years ago had patrons to support their work or were independently well-off to begin with. Only when mass dissemination of art or the products of science became possible did it start to make sense to argue over property rights to these "goods".

I agree with pg that property rights and what is considered property change slowly. These rights have been quite well entrenched in most agricultural and, later, industrial societies.

For example, the first Google link to "property rights in the bible" leads to <http://www.keyway.ca/htm2009/20090328.htm>, which lists a number of Old Testament property considerations including theft, damage of goods, damage to sold property, etc. It appears these property rights were detailed and established, and extended also (it's to the link's detriment these aren't mentioned) one's wife, the wives of deceased brothers, children, servants/slaves, buildings, debts, etc.

These Old Testament laws gave way to or were aggregated with laws adopted from conquerers of O.T. Israel -- Assyria, Babylon, Persia, Greece, Rome. These laws usually reflected a balance between benefiting those in power, the "good of society", and individual property rights (to enable a reasonably prosperous society, even for conquered peoples).

Attempts at massive overhaul of property rights have been attempted in the last century, leading to not-very-spectacular results. Incremental changes are best, I believe. And "rule of law" at its most basic comes down to property rights.

</comment></comment><comment><USER20> We used to treat people as property too. Things change... for the better most of the time, hopefully.

<comment><USER21> That is a really good example of such change.

</comment></comment><comment><USER22> I hope that one day all this talk of property and whether piracy is stealing or not isn't needed any more because people have RESPECT for each other and their work, enough respect that if someone _wants_ to sell their work they can without worry it will be taken by people who didn't pay. If an artist, musician, game developer, programmer etc creates something and wants to sell it for $100 nobody will take it without paying, if they want to give it away for free instead of charging that should be their choice.

Piracy shouldn't be a crime like murder or pyshical theft, but it should still not be something that is accepted by society, it's disrespectful to the creator of something. It should be the creators choice and consumers should respect that.

<comment><USER23> I hope that one day comments like mine aren't needed anymore because people on Hacker News have RESPECT for each other's comments and don't down vote reasonably valid perspectives like yours until they are hard for me to see.

Also, I don't know if its wise or not, but there's a middle ground between Pirace not being a crime at all ,and Piracy being a crime like murder or theft. Piracy shouldn't be a criminal offense, but it could still be a civil offense.

Would things be really bad if the punishment for pirating a movie was 4 times the ticket price? "Ok, you got me, I'll pay my $28 to disney."

<comment><USER17> "Artists should be able to dictate whatever terms they want" is by no means a reasonably valid perspective. It's a selfish, naive perspective, the dismissal of which is literally the first step in creating a reasonable copyright system.

<comment><USER22> How is it selfish and naive? The rights to the content should belong to the creator (unless they transfer them) and they should dictate the terms surrounding the use and consumption of the content they created.

Would it not be more selfish of you to say "I'm going to download that persons video game without paying even though they want me to pay!" than it is to say "I made this game, so I want people to pay me $20 to play it. If they don't pay, they're not allowed to play."

You shouldn't have any right to the work of others.

<comment><USER17> Your rights are worthless unless our courts help you enforce them. Why should anyone ever bother to serve on a jury in a suit you bring against someone who did something you don't like with your idea? Why should our tax dollars fund that legal framework? What's in it for the rest of us?

You aren't entitled to use the government as your personal regulatory agency - that's a privilege granted to you the artist in exchange for limitations and guarantees designed to ensure that society can also benefit from your work in ways that you may not approve of.

<comment><USER24> > Why should our tax dollars fund that legal framework? What's in it for the > rest of us?

Isn't it contradictory to want to copy what a content creator produces and then deny that the content itself has value?

Which is it, does the thing have value that makes others want to copy it so it's worth respecting that content as property of the creator, or is it valueless and there's no need to copy it in the first place?

You can't really have it both ways. If the content is worth copying then it obviously has value so it's worth it for society to protect that value. Not protecting that value means dis-incentivizing content creators.

What is that value? Well, like with everything else, that's a negotiation between the buyer and the seller. For mass-market products, that means that the seller sets a price and the buyer makes a purchase or no-purchase decision based upon the price and the perceived value of the thing being purchased.

Once again, we're talking mostly about entertainment content here.

In weighing the societal benefit of the content creator vs the pirate who wants to have a system that would deprive that content creator of any means of earning money from his work -- guess to which party society will probably always attach more value.

So as a person who funds creation of content that I enjoy, I have to ask you: Why should my tax dollars fund your legal framework?

<comment><USER17> A good idea is worthless if nobody ever thinks it, and it's value to society increases as it is shared with more people. This is completely opposite from the economics of scarce goods: once a good idea has been discovered, the macroeconomic optimum strategy is to eliminate as much as possible barriers to spreading that idea, so that everyone can benefit. Hoarding information may let you increase the _price_ , but it doesn't increase or protect the _value_. "price=value" isn't a definition; it is only true for scarce goods in a competitive market. Would the Pythagorean Theorem be more _valuable_ if you had to pay a fee to use it?

And no, we're not just talking about entertainment here. It's impossible to objectively separate entertainment content from more "important" ideas like _Uncle Tom's Cabin_ or even geostationary orbits (popularized by a sci-fi author). It's also impossible to fully separate copyrights and patents, since they have the same legal foundation and purpose.

<comment><USER24> I would agree that a good idea has more value across the society if it's shared. So that's one part of the equation.

What about the other parts? Why would you want to kill the incentive for working on good ideas by preventing their creators from having control over them for a time after they create them? The capitalist system has shown over and over that financial incentives drive progress more quickly and more surely than any other system ever devised by any society on earth. Content creation isn't magically different.

Further, why would you so callously wrest away control of someone's labor? That person who created that thing has a meritorious right to benefit from that labor. To ignore that person's right to the benefits of his labor is to enslave him in a society of forced egalitarianism. It's basically, morally wrong, and it always seems to go hand-in-hand with ruthlessly authoritarian communist regimes... and there are reasons for that.

<comment><USER17> I'm _not_ advocating the complete repeal of copyright and patent law. I actually think that the constitutional provision for such laws is _exactly right_. What I'm trying to point out is that copyright and patent rights are not the natural order of things, and that without specific enactment, it is not the default state of the law, and that exclusive control over ideas is not something that authors and inventors should take for granted.

Any useful copyright system must be a balance of competing interests, and it is not in any way tyrannical to suggest that the authors should not win by default and then go on to use public resources to enforce their own rules for how their ideas can be applied or disseminated.

Imagine a world in which _Harlan Ellison_ wins every lawsuit he files. That would be _horrible_.

</comment></comment></comment></comment></comment></comment></comment></comment></comment><comment><USER25> To me, the most important distinction here is the "smell" analogy. Whether or not we agree with content piracy, our assent or dissent is largely moot. It's happening, and it will continue to happen. In this sense, moralistic arguments are somewhat pointless. And legislative attempts -- even if successful -- will succeed only in plugging today's leaks. Innovators will figure out new ones tomorrow. Those in the content business need to make peace with this fundamental reality.

But the fact remains: people who invest a nonzero sum of money in the creation of content would probably like some way to recoup their investment. Or else they need to have deep enough pockets, or deep-pocketed patrons, to be able to abide simply giving it away outright.

I suggest that there's a middle ground between giving all content away (no IP ownership, as some advocate for) and trying to stanch the tide of digital distribution altogether. That middle ground involves differentiating content and price based on audience segments. Those willing to pay can pay for the things _they want to pay for_. Those unwilling to pay aren't going to pay. It's the job of the content creators to figure out three things: 1) what people are willing to pay for, 2) how to optimize that product to that willing-to-pay segment, and 3) how to convert unwilling-to-pay into willing- to-pay.

This strategy involves carrots, not sticks.

At the risk of getting all self-promotey, I wrote a piece on this topic recently, based on some case studies from the music and publishing worlds:

[http://www.dvwlr.com/post/18500285071/piracy-doesnt- matter-b...](http://www.dvwlr.com/post/18500285071/piracy-doesnt-matter-but- heres-what-does?c6df4580)

<comment><USER26> _> But the fact remains: people who invest a nonzero sum of money in the creation of content would probably like some way to recoup their investment. Or else they need to have deep enough pockets, or deep-pocketed patrons, to be able to abide simply giving it away outright._

There's a chance that some people may just enjoy creating art without requiring compensation.

<comment><USER25> True. I'm mainly concerned with the business aspect of the content world, however. I think the world should be able to accommodate both, and so I think it's an interesting exercise to figure out how content actually _can_ be monetized.

<comment><USER27> If you admit that art will always exist regardless. Then why is it important that it is monetized at all?

Personally I believe that not only arts will exist. But it will also be funded. Just look at kickstarter. But I don't understand why some people feel that we must find them better business models. Art will always exist even if we don't. So why does it matter?

</comment></comment></comment></comment><comment><USER28> A pretty harsh stopgap solution to this would require a large number of artists to be wiling to get of the gravy train and into a different frame of mind: Art is worth a lot of money until the day it is released, at which point the value rapidly diminishes.

This suggests that the ransom model might work for artists that have achieved a certain measure of success. You could set up a marketplace for art that has already been created but not released or you could use a mechanism like kickstarter to fund artists to create something.

The ransom model has been successfully used in open source (Blender for instance) and I see no reason why it could not work for other forms of creative output.

That way it is no longer a matter of redefining property, we simply recognize that certain demands by the artists should be met or there will be no more content. Smart artists will price themselves within reach of their collective audience.

</comment><comment><USER29> One aspect of the RIAA/MPAA mess missing here is the fact that they are middlemen. It's much easier to "steal" from them when you realize they are largely screwing the people who create the content. Its hard to say how much of the copyright infringement we see now would be happening if there was a distribution channel for media where people felt like they were rewarding the artist more directly.

<comment><USER28> So now the artists are screwed by the middle men and the audience both.

<comment><USER30> The artists were getting screwed by the middlemen just as badly before there was such a thing as "MP3". Screwing the middlemen out of their $.9895 (out of $.99) per track affects the artist not a whit.

<comment><USER28> > Screwing the middlemen out of their $.9895 (out of $.99) per track affects > the artist not a whit.

I'm all for it (screwing the middle men, in case that wasn't clear).

So how exactly are you compensating those artists whose MP3's you've copied in such a way that the middle-men get nothing and the artists get it all?

<comment><USER30> For more than a decade now, I've bought almost no major-label music. Instead, I buy from the artist's website if that's an option, or their CDs at the table in the back after the show (implicitly, going to the show), or the like. Or I go without. (I did have an eMusic subscription for a couple years, and got a lot of stuff from that, but IIRC, there was very little RIAA-member label music on that service at the time.)

Were I hypothetically to have illegally downloaded an album by a major label artist, my calculus would have been, "Well, the artist isn't actually going to see any royalties from this anyway, so the only party getting screwed by my torrenting it is the label," and felt no qualms about it.

Anyone going into the music biz as an artist since Courtney Love's Salon article (which has been on the HN front page at least three or four times since I've been here, but linked here [1] anyway) has had ample opportunity to realize the screwing they're signing up for when they John Hancock the label's contract. I can't muster up much pity for their getting shafted by the smooth- talking record exec they should've known was just going to shaft them anyway.

[1] <http://www.salon.com/2000/06/14/love_7/>

<comment><USER28> I well aware of Courtney Love's article, I personally prefer the one by Janis Ian which was both earlier and more articulate.

The record execs are as dirty as can be. But for now it looks like any money flowing to the 'signed' artists will flow through them (and the various 'rights' organizations, BUMA, GEMA, RIAA etc).

</comment></comment></comment></comment></comment></comment><comment><USER31> The main reason why I think "Intellectual Property" is a misnomer, and it's not actually property, is because creative ideas can not be owned by anyone 100%. So it's not fair for you to benefit from other people's ideas, improve on them, and get get to "own" the new idea for life. Society could give some some limited time monopoly over an idea, if they think the improvement you bring is worth a few years of protection from the Government. But that should be about it.

It's also why it wasn't originally called property, but copyright. The society only allows you to benefit from your idea only for a while, because then it must return to the public domain so others can further improve on it, or at least that's how it used to be. Now copyright protection is virtually indefinite, so that's unfortunate, and it's now how it should be.

<comment><USER32> Exactly.

Unlike physical representations of function which make sense to be patentable due to the risk of being copied, stolen and possibly improved upon before use or distribution, and unlike software licences which add or enable function into mechanical form, any form of creative art derives its value in the public domain from the public itself.

Therefore, it makes little sense to treat art as property or to put patents and software licences under the same umbrella as copyright.

If copyright for creative arts did not exist, art would very much exist, and if anything would thrive even more. For example, why would anyone go to someone other than J.K. Rowling for a Harry Potter book? Even if it were "better" by some people's measure than her books, it still would not be J.K. Rowling's Harry Potter books. There is no ability to add a strict/objective improvement on creative works - this is a critical difference between form and function.

<comment><USER33> As an anecdote, most of what I know about the Harry Potter universe comes from reading Elezier Yudkowsky's remix. I've never read the original and only seen two or three of the movies.

</comment></comment></comment><comment><USER34> I'm surprised that no one has commented on the validity of (moonbase) air as a commodity. If you have to decide to let one of your children die because you can't pay the air bill, something is fundamentally wrong with the definition of property.

Sure you can pay for air today, but it's always for non-standard purposes. SCUBA, industrial, CO2 cartridges for flats, etc.

We've already gone down this road with respect to water. The cost of manufacturing bottled water far exceeds the cost of having clean water on tap. Corporations (Bechtel) have even tried to make rainwater collection off of roofs illegal.

My point being that if you are going to define property, you should make an effort to define between (what should be) non-divisible communal property and private property.

<comment><USER35> Whoa there. People, especially children, die every day because they can't afford food, clean water, or vital medical care [1]. So, are all of those suddenly communal property in your world? Who gets to decide how much of each of those resources each person deserves? Saying a commodity is "invalid" just because children are dying from not having it quickly leads to absurd situations like making organs communal property. What should be communal vs privately owned is contested every day at every level of government--this is a complex issue with no simple standards that can be universally applied.

[1] [http://www.globalissues.org/article/715/today-21000-children...](http://www.globalissues.org/article/715/today-21000-children- died-around-the-world)

<comment><USER34> I _could_ argue with you. But I've decided to raise the price of air and not do business with you.

\--sole proprietor of MoonAir Inc.

(I counter reductio ad absurdum with reductionem aeris...)

</comment></comment></comment><comment><USER36> The history of copyright law is quite interesting, especially its origins. This quote from Thomas Jefferson is particularly interesting:

        If nature has made any one thing less susceptible than all others of exclusive
        property, it is the action of the thinking power called an idea, which an
        individual may exclusively possess as long as he keeps it to himself; but the
        moment it is divulged, it forces itself into the possession of every one, and
        the receiver cannot dispossess himself of it.
        ...
        That ideas should freely spread from one to another over the globe, for the
        moral and mutual instruction of man, and improvement of his condition, seems to
        have been peculiarly and benevolently designed by nature, when she made them,
        like fire, expansible over all space, without lessening their density in any
        point, and like the air in which we breathe, move, and have our physical being,
        incapable of confinement or exclusive appropriation. Inventions then cannot, in
        nature, be a subject of property.

That said, Jefferson was one of the framers of the Constitution, which gave Congress the power to create copyright and patent laws in the first place. It's important to note the language used in the Constitution, though: "To promote the progress of the arts and sciences..."

It wasn't about giving property rights to creators -- it was about _incentivizing_ them. The framers saw this as a tradeoff. The public would endure the "evil" of letting creators monopolize profits on their ideas. But in return, there would be more ideas created, and these ideas would become public property after a short time, anyway. Jefferson continued:

        Society may give an exclusive right to the profits arising from them, as an
        encouragement to men to pursue ideas which may produce utility, but this may or
        may not be done, according to the will and convenience of the society, without
        claim or complaint from anybody. Accordingly, it is a fact, as far as I am
        informed, that England was, until we copied her, the only country on earth
        which ever, by a general law, gave a legal right to the exclusive use of an
        idea. In some other countries it is sometimes done, in a great case, and by a
        special and personal act, but, generally speaking, other nations have thought
        that these monopolies produce more embarrassment than advantage to society; and
        it may be observed that the nations which refuse monopolies of invention, are
        as fruitful as England in new and useful devices.

<comment><USER37> You're mixing patent ("idea") with copyright ("property"), but perhaps that's not a bad thing. I don't think copyright is hopeless (as pg implies), but I do think patents are fundamentally broken. So bear with me:

The copyright debate should be reframed in the context of expanding the notion of Fair Use. The definition of "property" isn't shifting, but people's behavior in regards to what they perceive to be Fair Use of property most certainly is. When a fan posts ("NO COPYRIGHT INTENDED") in the description of an infringing NASCAR clip on YouTube, that's what he's trying to say. It has nothing to do with piracy or property.

Likewise, there's no such thing as Fair Use for patents. But some reasoned debate there is likely to achieve change far more quickly than any attempt to blow up the patent system.

<comment><USER36> Copyrights and patents -- in US law at least -- derive from the same sentence in the Constitution:

        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.

"Authors" and "Writings" became copyrights, and "Inventors" and "Discoveries" became patents. They are indeed two different things, but the theory and purpose behind each of them are the same.

\---

The trouble with trying to attack this problem from the Fair Use angle is that it's... well... backwards. We shouldn't begin with super-strict copyright law and pick away at the edges with rules like Fair Use. Instead we should begin with almost _no_ copyright law, and then add what few protections are needed.

Remember: The point is simply to promote progress. Anything behind that is excessive.

<comment><USER37> Unfortunately the Constitution eventually meets the road: Copyrights and Patents -- in US law -- derive from Acts of Congress.

If you think there's any chance of repealing that stuff and going back to Jefferson's quaint musings on the topic I think you're misguided. There's simply no way to frame an argument on the nature of "property." Nobody understands it and Congress ain't budging anyway.

But Fair Use is inherently flexible, arguable and relatable by the guy who uploads NASCAR highlights he doesn't own to YouTube.

Read up on the DMCA's Fair Use exemptions and the EFF's numerous victories. And think about it in the context of current culture. You're never going to mobilize nascarfan83 to read up on law, but you can probably get him to sign a petition that clips under 20 seconds are okay on YouTube.

<comment><USER36> I agree with you. I think we're talking about two different things, though. My goals are... well "goals" is a little ambitious of a word. How about: _What I would like to see_ is a complete reform of copyright law. Or, at the very least, the decriminalization of file-sharing. Anything less, and the battle isn't over.

I don't expect nascarfan83 to read up on law. Landmark decisions that affect the interpretation of the (and, indeed, the _legality_ of the law) tend to come from Supreme Court cases. And the justices on the Supreme Court are quite fond of reading up on old laws. :)

</comment></comment></comment></comment></comment><comment><USER38> IANAL. But it seems to me that property right in copyright is built more on freedom contract -- you can buy song X or movie Y, subject to the condition that you won't republish it. The "freedom of information" occurs after someone violates such licenses. Copyright law then looks to me like an enforcement of those agreements.

You want want a copy of the song? Great, here are the terms. You don't like those terms? Okay, don't enter the agreement. You can live without that song, you're free to walk away. You want a copy of the song on some other terms? If you can get the artist to renegotiate, that's great. But it isn't really a negotiation if you just take what you want on the terms you dictate. Okay, but you're negotiating with some studio. Well, the artist had a right to contract with the studio such that the studio now has the artist's interest in the song.

I don't see any argument against copyright that doesn't involve abrogation of an artist's ability to set the terms by which their work will be available. And as I want my own ability to set my own terms for my own work and product, I don't see how I can properly deny that ability to anyone else. I don't know if that notion of property "works", but it does seem right to me, it's the one I choose to live by. And I don't understand how I could live by any other and expect people to respect my rights.

</comment><comment><USER39> The concept of copyright made sense under the old technologies because it was practical to outlaw counterfeiting. Suppose, for instance, you decided to counterfeit a best-selling novel. You would need to spend many thousands of dollars to set the printing plates, plus have a printing factory to produce the thousands of copies needed to repay your investment, plus a big distribution network. If the police were at all interested in enforcing the law, it would be only a few days before someone discovered that the book was being counterfeited, and easy to trace it back to the printing factory, and the whole operation would be shut down (and the fellow running it thrown in jail), long before a profit could be made.

With computers and the internet, all that changes. The capital investment to pirate IP property becomes effectively zero, and it is difficult or impossible to trace the source. So copyright laws are simply not practical. It is similar to what happened with Prohibition in the US, it turned out to be just not workable.

</comment><comment><USER40> When the odor of the food quits the food shop and entered the land property (public or private) it might not became the property of the new land owner, but it's not his fault.

Piracy is not that. Piracy is sniffing the smell from the food shop with a tube and taking it to your land (cracking the product) and then diffusing the smell to your neighbors (sharing).

</comment><comment><USER32> Excellent article.

I do slightly disagree with his point about evolution of property rights.

This issue comes up often in the context of the Great Divergence - a topic of economic history that describes and seeks to explain why there was such a rapid difference in development between the West (modern powers) and the East (classic powers).

It can be easily shown that private property rights in the West at the very beginning of this divergence were not only critical but also preceeded even the widespread use of the technology of parchment let alone the introduction of paper by some 200 years!

Another one is, of course, slavery.

That said, technology is undoubtedly the commonly _fastest_ means to change the definitions of property. At least, it is faster and often more equitable than having a monopoly on violence (which is what the state and it's laws at any given time essentially represent).

</comment><comment><USER41> It's interesting to look at the history of patents to get a sense of perspective on the fluidity of property rights. Before the reign of James I, for instance, all kinds of things received patents, not just inventions. Even commodities as common as salt or pepper were patented. The king would grant these patents, implicitly getting the political support and backing from the recipient. It took an act of Parliament (itself a power grab) to end this practice, which is where a new version of patents--applicable only to a new discovery or invention--was legislated.

These patents of yore were pretty alien to us--they represent something more like a government appointment to a role than anything else.

</comment><comment><USER42> I think of things differently: regardless of the definition of property the entire issue generated between the piracy side and the content generator side is that of ownership and possession.

From the Pirate's point of view they see the situation as "You have not lost anything by me copying this software." Which is a legit mindset to subscribe to.

From the other side they see it as "You've obtained something that you did not pay for." Which is _also_ a legit mindset.

Whatever end you subscribe to you can hopefully still understand where the divide comes in. One person is interested in obtaining something while seemingly not hurting the other. The other side is bent on maintaining and controlling their content distribution.

<comment><USER43> _From the other side they see it as "You've obtained something that you did not pay for." Which is also a legit mindset._

It's not necessarily legitimate.

For example, I'd love it if everyone who flies in a plane over my house paid me, and at one time that might have been the law[1]. I could argue that they'd obtained something ("flying in my airspace") without paying. Whether or not that is a legitimate mindset is up for discussion. It may depend on other things like democracy and the public good.

[1] <https://en.wikipedia.org/wiki/Air_rights>

<comment><USER44> You don't get to just pick on one side. I could equally well say that "You have not lost anything by me copying this software." is not necessarily legitimate.

I personally know many examples of people who have pirated things they would have paid for, had they not been able to successfully pirate it. You can therefore I believe argue that the piracy lead directly to a loss.

</comment></comment></comment><comment><USER35> I like this essay for using a brilliant analogy to illustrate a hard problem. Despite painting such a pretty picture, though, it winds up not really addressing any of the issues it brings up.

What the essay proposes is the replacement of one nebulous standard ("property") with a few others: "not warping society," "when it works," and "common sense".

From the point of view of PG or anybody else in the Valley, what the __AA's are doing may feel like forcing everybody to breathe through tubes. And this essay will easily appeal to anybody else that has grown up with the internet, simply for eliciting such a colorful depiction of our emotions when confronted with end-user-hostile DRM and bills like SOPA.

From the point of view of a media conglomerate, "warping" society is sort of their M.O., although they might more comfortably describe this as "advertising" and "developing consumer loyalty". It isn't common sense that a media company shouldn't change society to make money, because they've been doing this since radio and movies and television were invented. This goes double for new media and the internet. For instance, isn't Facebook undeniably trying to change people's expectations on what personal information they should be sharing with the world?

So all that's left is the essay telling us what we already know: that technology is making certain kinds of property irrelevant, and society needs to adapt to this change. How, and when, and what we should actually be doing, are all left as an exercise for the reader.

</comment><comment><USER45> Another thing I would like to add is that as much as I would like to, "private property" can never be absolute. I had a few friendly exchanges with some of my libertarian friends who argue that "private property" is sacred. While I do believe that in principle no other group of people should force individuals to give up their property, it is a principle that would be difficult to fully implement because of the simple fact that we live in a small planet with limited resources. The atmosphere is a communal property,so are the riches of the world's oceans. Suppose for example I am the shrewdest businessman on the planet and managed to own 70% of the world's grain output, in theory it is my property, should I be allowed to burn them all to ashes (assuming I figured out a way to burn it without polluting the atmosphere) since those are mine anyways? Capitalism brought the greatest explosion of wealth in human history because it "chose" those who can manage resources more effectively through the market system (instead of an appointed bureaucrat). Bill Gates will never consume $60B worth of grain and he can only wear 1 pair of shoes at a time. But because he took the chance countless millions benefited from his endeavor. I also don't mind wealthy people buying $5M diamond rings while "millions live on $2 a day", considering how many people were employed and paid to sell them that piece of rock with little practical use. But the "illusion" of absolute ownership is powerful enough for people to take chances. The trick now is trying to figure out when the rest of society can say to an individual that "you cannot do that!" when it comes to his property. I am not sure we'll ever figure that out.

</comment><comment><USER46> One of the points to remember wrt to property rights is what, in fact, you are purchasing when buying a piece of data - be it a song, movie, program, what have you. Many times, we think we are buying something wholly ownable, we assume that, since we paid money for an item, we own it to do with it as we may.

The legal truth is a bit trickier. Often, we are simply buying the rights to use an item for a stated purpose for a stated time. It's a tricky ground, and one that is sometimes counter-intuitive. For instance, when I bought my iPhone, I believe that I purchased a piece of hardware divorced from the OS on it, therefore letting me do anything I want to it. That may hold true at the moment (despite Apple's claims otherwise), but that scenario could easily be changed. Think of the scope of modifications one can and cannot make to a car to keep it "street legal" - there are always limits within law to what one can do with property, and much of that relies on what you purchase at the time of purchase.

All that is to say, however, that current definitions and understandings of property rights do not match up, either in the public sphere, or in the apparent practice of many companies. The systems being used to enforce copyright and property rules are clearly broken, and beg for new paradigms.

<comment><USER47> >Think of the scope of modifications one can and cannot make to a car to keep it "street legal"

I don't think that's a good example. You have full property rights to your car, and you can do whatever you want with it; there are only limitations if you want to use your car on property that doen't belong (exclusively) to you.

</comment></comment><comment><USER48> In economics a cost or benefit that is difficult to charge for is known as an externality. The pleasant smell of food might be a positive externality; second hand smoke a negative.

Ronald Coase (who also produced The Nature of the Firm) did the seminal work here. It turns out that in cases where it is difficult to assign property rights government intervention is often the best way to address externalities.

Readers of the essay may benefit from a footnote mentioning these basic economic principles.

</comment><comment><USER49> I don't like the analogy because bringing the concept of smells from the moon (where air is expensive) to Earth, (where air is essentially free) is not exactly the same as moving copy written material from a controlled medium to one without rules.

Nobody is arguing that a musician who wants to independently distribute music over the internet royalty free, or for any fee that he or she sees fit has the right to do so. The labels are arguing that distributing THEIR music outside their own channels is illegal.

In the case of the smells example, a proper analogy would be if the company selling smells on the moon wanted to control the distribution of its OWN SMELLS on Earth and fought against people distributing them without consent. I was opposed to SOPA as written, as most rational people were, but I don't think because you suddenly have tools at your disposal to distribute somebody else's property widely and cheaply, that alone gives you license to do so.

If there were no value in the content that the RIAA wants to protect, nobody would care if they wanted to prevent people from illegally distributing it. If there is value, then the smells analogy doesn't hold.

</comment><comment><USER50> This is less of a hard line than <http://everythingisaremix.info>

PG's argument is that the world is changing and the definition of property should change to match. But Everything is a Remix argues that ownership of ideas has always been problematic, because it's never been possible to cleanly separate an idea from its antecedents.

</comment><comment><USER51> The term Intellectual Property is bad and I really wish it could get removed from common usage. Property is not a term that should be applied to something that is infinitely copyable without cost. You steal my my car and I can't use it anymore. You use my idea and I can still act on my idea.

However that does not mean that there should be no protections. If we go back to the US constitution where its patent and copy write law comes from:

"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"

It was felt that innovators would be discouraged taking on a lot of up front cost developing an idea if it could copied before they could recover that cost. If we were to stop thinking in terms of property and start thinking in terms of a limited time exclusive right to attempt to recover upfront cost then I think things become a lot clearer. The value of an idea is a nebulous concept however the cost to develop that idea is not.

</comment><comment><USER52> As I read about the moon and air and charging for smells, I couldn't help but think TANSTAAFL or rather TANSTAAFSOL. The music industry like the Moon is a harsh mistress and what makes a mistress a mistress is that it costs you to keep her.

There's plenty of free music, one can even make it one's self or have a friend make it for you. Ownership of a musical performance is no different from ownership of a book, except in so far as it is easier to share.

Nobody is pillorying Simon and Schuster because they charge for ebooks. Nor are they declaring Amazon to be an impediment to progress because they sell such books for far more than the cost of delivery. Come to think of it, nobody is holding Apple accountable for profiting as the principle conduit for the music industry's model.

That's not to say that the legislation put forward recently is good or that the draconian punishments of downloaders are appropriate.

But creative works should be controlled by their authors, and musicians and filmakers are not flocking _en masse_ to copyleft schemes.

</comment><comment><USER53> Can we fine the chef for not containing his smells and polluting the air? Maybe the boy doesn't want or like the smells? Similar questions can be asked of Monsanto polluting fields with "their" "intellectual property" corn DNA.

You can (ought to be able to) charge someone for ordering the service of adding smell, but if they didn't ask for the service then you can't charge them for it. "I made this chicken dinner for you. You owe me $20. I don't care if you wanted it or not."

This would be like demanding people who hear your music pay for it, even if hearing it is against their will or unintentional.

The issue/problem is with contracts, not property. The record label is licensing an individual (via contract) the right and okay to reproduce a work for personal/private use. The labels should go after those that break the contract by allowing people unauthorized access to reproduce the work, not those that obtain (download) the work. The downloader never signed a contract nor necessarily knows one exists. Upon being told they obtained "unauthorized goods" then they should immediately delete and destroy them. If the label can prove the downloader knew or ought to have known their copy was unauthorized then the downloader is guilty of knowingly harming another party and should pay a fine as well.

If you'll are mad at the labels, stop downloading or viewing works produced by the labels! It's called voting with your actions. If artists see that the people won't purchase or listen to their works with certain labels, then the artists that care will stop using those labels! No this isn't easy. Yes the artists will also feel some pain through this process too. But seriously, grow up and stand by your principles unless your only principle is "Me now for free". If you think it isn't possible then please just admit that you don't believe in democratic movements and that we require elitist intellectual overlords to govern us.

</comment><comment><USER54> >Private property is an extremely useful idea—arguably one of our greatest inventions. So far, each new definition of it has brought us increasing material wealth. [4] It seems reasonable to suppose the newest one will too.

This seems like a somewhat weak argument from extrapolation, since there aren't very many data points and they're so heterogenous.

It seems reasonable to assume that people will respond to lack of incentives in content production by producing less content (if only because they now need full-time jobs outside content creation to support themselves). In a new world without copyright, then, we'll start out with a large "endowment" of movies and music from the "copyright era", but the endowment will grow at a slower pace than it did, and additions to the endowment will be less polished than those from the copyright era. Doesn't obviously seem better or worse to me.

It may be that there just isn't a neat solution to this problem.

</comment><comment><USER55> Here's an idea I've been kicking around lately that I'm sure I'm not the first to consider, so maybe someone can predict the ways in which it will fail: what if, instead of imposing artificial scarcity and attempting to require before- use licensing on intellectual "property", we allowed free use of all IP and attempted to reward valuable contributions after use?

So a certain percentage of tax revenue could be distributed as awards for the creation of successful software, inventions, music, etc. There are a number of free variables in such a scheme: percentage of economy dedicated to such awards, measurement methods (observed use vs. voting) and weighting of importance (do you get more award for making music that rich people like?). I wonder if some choice of parameters wouldn't make this scheme an improvement over what we have now.

(I'm assuming capitalism remains for scarce goods)

<comment><USER56> While I'm hardly anti-government, I'm not too confident about its fairness. Who would take care of doing all the work of calculating that? And what happens if an author can't be reached - who takes that money?

Here in Portugal we have two supposedly non-profit associations (one for authors, other for performers) who are legally responsible for receiving the fees whenever a e.g. TV channel replays an old episode and then distributing them to the members, and they seem extremely corrupt.

Personally, I think we don't need any of that. People pay anyway, including the so-called "pirates", and they'd pay more if it weren't for stupid restrictions, like Netflix and Spotify not being available in many countries.

</comment></comment><comment><USER57> The terrifying thing about the thesis that people charging for content 'when they can' is that they will find ways to arrange the content so they can charge for it.

So we get App Stores, Xbox/PS3/Wii stores, and ever-creeping, ever-more-hard- to-crack, ever-more-restrictive DRM solutions. It's theoretically possible to make uncrackable DRM, which means someone will do it. It's just a matter of time finding an economically viable solution that won't annoy users excessively. There's demand for expensive information--expensive in the economic sense, in that making this information takes lots of work from lots of experts. People want the latest movies, TV, software, video games, music.

And then there's the ultimate DRM, PG's favorite thing to invest in: the webapp. What better way to make users pay then to demand they do all their work on a server _you_ have, not their own computer? To demand users sign over their financial information to Mint, their private email to GMail? When they don't pay in money, they pay in loss of privacy. Sometimes they pay in both.

I want _free information_ , free not in the GNU sense--though that's always an option--but free by the social norms of fair and legitimate use. I want software, media, and so on to be my own; I want to be able to use it without some corporation knowing. I want to be able to back it up and mash it up and lend the original copy to friends.

But content creation representative groups such as the MPAA and RIAA have conducted themselves in ways that threaten our very democracy. In an ideal world, society recognizes that commercial information can't be both free as in speech and free as in beer, industry and the Internet community find a reasonable way to punish the worst pirates without infringing our general freedoms, and the MPAA/RIAA's justification for its horrible lobbying vanishes in a puff of logic. (That's another thing; I don't think the technology community understands how sympathetic people are to the stance that information must not be stolen.)

No idea if or how this will happen, so I guess that makes everything I said kind of a rant, but one can dream... and I do think people need to realize that the market isn't some magic thing that does what you want. Half the market is people trying to earn money. The increasing trend is that the content creators are finding technical solutions giving users no choice but to pay them. I don't understand why this is a good thing. The world of Richard Stallman's 'The Right to Read' is a famous hacker nightmare, except now hackers seem to be endorsing it. What the hell?

<comment><USER58> _Also consider the paradox that business software is often more freely available than personal software. To use almost anything from Oracle, I can just download it myself! But to use Netflix there's all this DRM stuff that gets in the way. Why? Because Oracle can sue businesses that illegally use their software--anti-piracy is enforced.

It would be so much better for society if I could use quality personal software on my personal information. If I could freely redistribute media, make mixes to distribute amongst friends, mash stuff up and make original art without having to pirate or crack DRM..._

It's funny, because you first say "Business software is cool because it isn't controlled by DRM, which is because piracy is minimal". Then you say, "I wish more software was like business software, so I could pirate it more easily".

<comment><USER57> I edited much of that out of my original post... but let me respond. The point is that the solutions to piracy treat fair use as though it's just as illegitimate as piracy, with the paradox that you sometimes have to commit piracy to get fair use.

<comment><USER58> _freely redistribute media_

Is that really fair use?

Yes, I see now you edited that out of your post.

<comment><USER57> It's fair use if you don't abuse it!

<comment><USER58> I'm assuming you are talking about things like sharing amongst friends, but I can't find any evidence that is actually covered by fair use.

 _purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright._ \--Wikipedia, "Fair use"

Certainly you won't get sued for sharing your Metallica record with your friend Bobby, but I don't believe that is related of fair use.

</comment></comment></comment></comment></comment></comment><comment><USER59> The purpose of property rights is to efficiently utilize scarce resources.

Scarce resources include: air on the moon, land, time, physical goods. For example if there is only one potato chip left in the bag me eating it prevents you from eating it.

Data and information are not scarce resources. A copy of software on my computer in no way diminishes the usefulness of the very same software on your computer. In fact both of us having the software may increase the efficiency of scarce resources like our computers or our time!

That's why property rights for data/information/movies/music/software do not improve economic efficiency and make us all worse off.

</comment><comment><USER60> minor nitpick: a cubic liter is not a thing. Liters are already measures of volume.

<comment><USER18> Minorer nitpick: A L^3 _is_ a thing, in the sense of being a unit with real meaning, equivalent to (?) a dm^9; it's just not a thing that can be meaningfully represented in 3-D space.

<comment><USER60> touché

</comment></comment></comment><comment><USER61> Exacerbating the problem is the fact that the publishers are not only trying to keep the old definition, but to constrain it even more. They're reactionaries rather than conservatives.

An example would be books. In the past, a book I owned could be resold or given away. With digital documents however, my copy is only a "license" which forbids any and all transfers. In the past, if I owned a document, I owned it forever. But now, I must pay for a new "license" each time I upgrade the format. Such as buying an mp3 when I already own the CD, or paying extra for the "digital" version of a DVD or book I already own.

<comment><USER53> Yes, you're correct (I up-voted you). But, if you don't like the fact you are purchasing only a license then don't purchase a license to the digital content. Buy the REAL property, the book, instead of the intellectual property.

</comment></comment><comment><USER62> I think that perhaps the most important part about intellectual property is that it restricts what you can do with your real property - you can't write a story using someone else's characters (derivative work), and more obviously you can't write down you favorite story on your own paper, or copy a cd, etc... It restricts what you can do with your own property even if you never entered into an agreement with anyone else. This is clearly shown with submarine patents.

</comment><comment><USER63> There is an Arabic folk tale version of that story:

A poor person gets hungry, so he sits down outside a kebab house, and starts eating his bread and smelling the kebabs. The owner sees him, gets angry and tells him "You can't just sit here and smell for free, you gotta pay!". The poor person looks at him and says "Oh, I'm sorry, I'll pay.". He then takes out his change purse and shakes it until the coins make some noise, then goes back to eating and smelling.

</comment><comment><USER64> _So what does this mean? Should people not be able to charge for content? There's not a single yes or no answer to that question. People should be able to charge for content when it works to charge for content.

But by "works" I mean something more subtle than "when they can get away with it." I mean when people can charge for content without warping society in order to do it._

pg, I'd be really interested in hearing more about what (you think) this should look like.

<comment><USER65> Probably some kind of super DRM. Think OnLive or the new Diablo 3 where you need to be on the internet to play.

Obviously music cannot follow this model, meaning sounds themselves (in the context of the essay sounds are not so different from smells) will become un- ownable and the only thing left having any value will be live performances. Artists could still make a good living if they are any good at it. It would be the same as what we had a few hundred years ago before mass media, and the music industry would transform from a creative industry into a service industry.

Of course this is just my impression of what pg means, I don't want to put words into his mouth.

</comment></comment><comment><USER66> He leaps to "moon base" to make "smells as property" work, totally skipping over fragrance or perfume (which can in theory be copyrightable) as property.

<comment><USER67> Moreover, many restaurants deliberately leak smells, as free advertising. What the store owner was really objecting to is the rice-eating student breaking the sniff-through EULA.

</comment></comment><comment><USER68> Come on, I thought PG was better than this.

Comparing full version movies and musics to SMELLS is very unfair to say the least. Even trailers are better than that.

<comment><USER69> In context of living in a place where air is metered, it makes sense.

It is possible I read too much SF, of course.

</comment></comment><comment><USER70> For others curious, this story is also told of King Solomon. This isn't where I first heard the story, but here's a reference: <http://www.freeplays.org/scripts/KingSolomonAndBaker.html>

The [short] story as a whole is also worth a read, in my opinion.

</comment><comment><USER71> Lawrence Lessig has a very interesting plan that would potentially have large effects on these types of situations. What if politicians were incentivized to be for the people instead of for the lobbyists? <http://theanticorruptionpledge.org/>

</comment><comment><USER72> Imagine a florist who sells roses along with a air-tight cardboard box, and stipulates that the buyer sit inside this box every time he wants to smell this rose (so that others who haven't paid for the rose cannot not "steal" the smell).

That would be a good analogy for DRM (at least the way it is implemented today).

</comment><comment><USER73> Absolutely brilliant - I have been mulling over this problem in a very abstract way for a long time, knowing what it was but not how to express it, and wishing I could come out with a comparison as accurate and eloquent as this, and here it is. Well done pg, well done.

</comment><comment><USER74> I think the debate is much more complicated. I would start by analyzing the various dimensions that property can have.

Let's list some:

\- Non property vs property. Religion vs. patents.

\- Public property vs Private property. Rain vs. bottled water.

\- Intellectual property vs Physical property. A song vs. a gong.

Any other dimensions you can think of?

</comment><comment><USER75> An apt, but tragically late, entry into an important discussion.

I mean, downhillbattle.org closed up shop years ago.

Gibson (<http://www.wired.com/wired/archive/13.07/gibson.html>) recognized it at that time too.

</comment><comment><USER76> _[1] If you want to learn more about hunter gatherers I strongly recommend Elizabeth Marshall Thomas's The Harmless People and The Old Way._

For an intersting philosphical treatment of hunter gatherers vs agricultural societies, see Ishmael by Daniel Quinn.

</comment><comment><USER77> The question shouldn't be this or that kind of property, but property or not property at all. The free software movement is a perfect example on how property (copyrights in this case) can be more of an obstacle than a catalyst for progress.

</comment><comment><USER78> There is a multi-billion dollar industry based around making smells property, perfume.

</comment><comment><USER79> I find the ownership of the right to produce food by eg Monsanto way more terrifying.

</comment><comment><USER80> Another example: bitcoin/namecoin are arguably a technology innovation arising partly from novel thinking about what constitutes property and ownership.

</comment><comment><USER81> There is one more twist about that. Copyright supporters like to call it property - but they sell it as a license to consumers.

</comment><comment><USER82> Smells dissipate.

<comment><USER83> Music too, if someone in a train has loud headphones. Or, you could hear a band playing a show outside the venue. In a very resourceful world, you could always find a public place where you can overhear the track you want to listen.

</comment></comment><comment><USER23> The thing that always worries me when I see software people talking about songs not being property is then what does that make software?

I see the act of creating software and creating a song or a movie as being very analogous.

It takes a lot of work on the front end to create the master copy, but then that master copy can be digitally reproduced at no marginal cost.

Movies and songs grew up in an old style situation where distributors and producers put up the money and in exchange for the risk take a lot of the back end.

Software came later, and so we have, for instance, the open source movement. There's not a lot of open source movies.

If we don't respect songs as property, but we do think of our own software creations as property, is that not hypocrisy?

I can hate the RIAA and MPAA and all their evil actions, and still think of these products as property... many movies cost a hundred million dollars to make.

I think it might be more productive to point out that the RIAA and MPAA are doing bad things... than to try and throw out the idea that easily reproducible goods can be property.

<comment><USER84> Exactly. I wrote this as a top level post and then read your post, so decided to post it as a reply here instead:

Imagine your server based app suddenly become instantly copyable and deployable by anyone visiting your site, at no charge to them or you. You launch your latest startup and within 6 hours there are thousands of clones around the world competing with you. This new reality applies to any new web or mobile app you build. That would terrify me.

I agree the method of enforcement and level of influence the industry has on our legislative process is extremely problematic. I don't agree that how industry execs are compensated is relevant.

Intellectual property like the movie Avatar cost money to make and have real value. As consumers we are prepared to exchange money for that value, money which is worth less to us than the value we extract from the product. It's just that the laws of physics have changed and it's no longer possible to exchange one unit of Avatar for X dollars because once the first customer consumes it, it is free for everyone else, in a perfectly efficient piracy market.

I want to live in a world where people spend hundreds of millions of dollars on making movies like Avatar. So rather than telling the industry to just "get with the program, your goods are free like smells now", I'd like to see our community come up with a solution to this very very hard problem. Any takers?

<comment><USER85> Your analogy of a server based app is not a great one. If Google shared all of its source code, it would be a huge security risk and embarrassing amongst other things, but it would not lead to the end of their business by any means. Google makes money because they create a massive infrastructure that is NOT simply copyable. The fact that you can't read the actual Java, C etc. code that is executing on the server doesn't really matter: even if you could there is so much more value in the business than just that. Duck Duck Go is a great example: it has roughly the same quality search results as Google, but if you just gave the Google source code to DDG they wouldn't all of a sudden eat Google's lunch.

If you could all of a sudden press a button and copy all of that infrastructure, and spin up jobs and get the recruits that they have etc. the value provided by Google would be minimized. This is the nature of progression.

What exactly is the real value made by creating Avatar when the same value can be provided for free by an uneducated child who downloads it off the internet? Shouldn't we be organizing our economy around rewarding the things that actually do provide value (ie: getting the content to the person who wants it), rather than the thing thats correlated with providing value (content creation in and of itself)? Copyright is just a miniature monopoly.

Movie theaters still provide a great value. Despite the fact that I can rent or download a movie for much cheaper I still go to them for the end experience. We need to organize the economy around incentivizing end experiences, not incentivizing correlated factors.

<comment><USER86> You're trying to sidestep rather than confront the issue.

s/google/some company that runs on AWS

Or this: [http://www.gameinformer.com/b/news/archive/2010/08/17/blizza...](http://www.gameinformer.com/b/news/archive/2010/08/17/blizzard- wins-court-case-against-world-of-warcraft-emulator-servers.aspx)

<comment><USER85> I'm not sure what you mean by sidestepping, and I'm also not sure what you are trying to say with that article. Blizzard sued and won based on current copyright law, which I'm arguing is FUBAR.

Edit: Ok now I see what you are saying. I stand by my argument. If your business can be duplicated by me pressing a button, your business is not providing value and the government shouldn't protect it. I don't think we are devaluing what musicians/artists do, but instead what distributors do. Concert sales are up, record sales are down. This makes sense to me.

<comment><USER87> >If your business can be duplicated by me pressing a button, your business is not providing value and the government shouldn't protect it.

So most web businesses are not providing value. Neither are any other software businesses. Neither are authors.

Except that _loads_ of people want and need software and websites and books. Somehow it seems like this scarcity-based, property-based system of valuation doesn't work well.

Who wants to build the start-up that disrupts capitalism?

<comment><USER85> No. Most business software by itself is not providing value. You could not clone any web business (or any business for that matter) with the click of a button because the business is a lot more than software.

</comment></comment></comment></comment></comment></comment></comment><comment><USER88> We already treat smells as extremely valuable on earth.

The fragrance industry is worth tens of billions for that reason.

</comment><comment><USER89> The contortions necessary to justify violating copyright should give some indication of its viability. People are going to copy things. It is only when people make money from violating copyright that there is any chance of any type of enforcement. PG is now aligned with clowns like Kim Dotcom and others that believe they have a moral obligation to download copyrighted material. A good deal of the Internet is essentially under frontier law, the cowboys have wide latitude but so does the sheriff. This attitude that "all movies should be free" kumbaya bullshit should be left to script kiddies and pimply faced teens.

</comment><comment><USER90> "Imagine we were living on a moon base where we had to buy air by the liter. I could imagine air suppliers adding scents at an extra charge."

But you'd be able to choose whether or not you wanted the smell at a given price. The poor student had no choice but to have the smells waft into his room. If the cook told the student "I'll open my window and let the smells waft into your room, if you pay me a fee", then a just judge would have no problem ruling in favor of the cook.

</comment><comment><USER91> This reminds me of Cory Doctorows excellent talk at 28C3, _The coming war on general computation_ :

<http://www.youtube.com/watch?v=HUEvRyemKSg>

Basically, Cory is saying that the fight againt RIAA/MPAA is just the first battle of a long war.

</comment><comment><USER92> _A poor student who could afford only rice was eating his rice while enjoying the delicious cooking smells coming from the food shop._

The judge should have fined the food shop for littering, as it was carelessly letting its smells scatter through the street.

</comment><comment><USER93> what profit of giving the definition of property so well.We all know what is property.The thing that you can discuss that the distribution of property equally to all and the possible way to utilize it.

</comment><comment><USER94> Does anateus have a monopoly on paulgraham.com updates?

</comment><comment> sans-serif I thought the idea behind the United States was that there wasn't supposed to be a single point of authority big enough to be effectively lobbied by whoever wants to twist the law for their own gains badly enough. If one state failed people could just flock to another one. You'd get redundancy and also competition between governments to keep things sane and efficient.

How did you guys manage to ruin that.

</comment><comment><USER95> Hear hear... comes down to reputation.

One does not simply steal the software running the service, one must steal the entire service.

How does one profit from music? By creating fans which in turn builds a brand which can be leveraged in creative ways... concerts, endorsements etc...

How does one profit from movies? Exclusive access to high quality versions first. Avatar cost anywhere from $250m - $500m, it has grossed $760m. Theaters sign up, pay money and get the best shit first... sure it will be copied... eventually (maybe within hours) a pirate theater may get a hold of it... but will it always be in a few hours? Or will it be a day or three? Avatar made ~90% of its money by week 10... obviously the theaters don't want it out for as long as possible... same goes for the studios... so if all efforts were focused on inside leaks instead of consumption, a stronger business model and secured profits would be had.

In fact... when you look at it... the Gov is subsidizing the industry through law/enforcement due to the inability of the industry to manage its own business. 'HALP! I can't keep my fucking people in line'... the only real Gov. response should be... GET YOUR SHIT TOGETHER BITCH.

How does one profit from books? Similar to movies and music... brands & exclusive distribution.

How does one profit from games? Exclusive and _secure_ distribution.

How does one profit from an idea? Building the infrastructure (the business) for that idea to execute.

Not to mention the kick started method... I threw down on Double Fine Adventure... some of you did too... its about to hit $3m.

If some thing is good... one does not simply steal that thing and inhibit its profit... one must steal the entire world in which that thing exists in order to really harm the thing stolen. Otherwise the harm done is marginal... and if that harms kills your thing, your thing was marginal as well. Better luck next time....

I guess what I am trying to really say is... GET YOUR SHIT TOGETHER... and <http://youtu.be/zypjjdX-hvQ?t=40s>

2c.

<comment><USER95> Tough crowd.

XD</comment></comment>