Screeds
Sunday, September 26, 2004
What’s Mine Is Yours
September 7, 2003
Over at the indispensible Samizdata, there’s a vigorous (and not entirely polite) exchange going on over the viability of intellectual property (IP) rights. The middle positions of the debate are all murky from a theoretical perspective. The two extreme poles are well grounded in theory, but neither of the extremes appears workable under current conditions. Besides, when the arguments for two contradictory positions appear equally unchallengeable, what’s a self-respecting Curmudgeon supposed to do?
Write his own position paper, naturally.
All our modern theory about property derives from the thinking of the great John Locke, who first formulated coherent concepts of how something in the huge, unbounded world of the common can be pulled behind a boundary that defines some individual’s rights. Locke, one of the founders of the intellectual revolution that gave the world the science of economics and the United States of America, was primarily concerned with moral issues, as was his contemporary Adam Smith. He didn’t spend a lot of effort on the practicability of his concepts; it’s a good thing almost all of them were absolutely sound.
Locke’s central mechanism for the study of property rights was his concept of enclosure, a term which later acquired an ugly cast due to the pernicious Enclosure Acts of Nineteenth Century England. He looked for those ways in which human action fixed upon an item in the common—the domain in which nothing is owned—and “enclosed” it therefrom. Since he thought and wrote at a time when food, tillage, and agriculture were the dominant industries of Man, he selected most of his examples from those venues.
Locke’s founding postulate was that human labor creates human rights. The gathering of the berries, the fencing or marking of the unclaimed field, the making of the artifact, were at the root of the property-creating process. Human labor imbues previously unclaimed items with new characteristics, “enclosing them from the common” and converting them into property, which the owner could morally use force to defend.
From this insight flows virtually the whole of economic thought, including both much brilliance and much meretricious nonsense.
In his landmark work Man, Economy, and State, the late Murray Rothbard reformulates Locke’s premise as a template recipe for economic action: the mixing of “labor with land.” Of course, “land” here cannot be restricted to the earthen variety; it must include all items that occur prior to human action upon them. More, “labor” cannot be restricted to physical exertion, but must include intellectual efforts as well.
Marxian economics starts from this insight quite as much as free-market economics does. The divergence occurs over contract and transferability. But your Curmudgeon is not here to analyze the errors of the Father Of All Raving Moonbats. Not today.
Schematically, humans’ interaction with the commons and with one another would look like this:
Enclosures through labor, which occasionally go by the term homesteading, are well grounded in property rights theory and need no explication here. The same goes for trades, provided only that the things traded are a priori the rightful property of the traders. But returns to the common through deterioration are seldom addressed, and little understood by most laymen.
Enclosure differentiates an item from the common by the application of labor. Deterioration is the movement back toward indifferentiability by non-maintenance of control, which we shall henceforth call neglect. A field marked, plowed and sown will not remain in that condition forever unless the owner applies repeated efforts to it. Absent those efforts, it will eventually return to a wild, uncultivated state, and all property rights in it will bleed away.
Lesser failures of control, in which one’s property rights are compromised by failure to exclude others in a recognizable and systematic fashion, are called easements, and form an important part of American property law. However, the complete lapse of property interests through neglect is seldom discussed, in part because governments, the principal enforcers of property rights, are reluctant to confront the consequences.
Neglect has analogous implications for movable property. For example, to leave a car sitting on the street, unused and untended, for several years would cause it to enter “the common” by an informal process. A complaint to the police that it had vanished in the night would, if they learned about its long disuse, be met with a “what did you expect” smirk, even though the theft was nominally a felony for which the perpetrator could, in theory, be prosecuted.
Symmetry demands that we consider neglect and the attendant loss of property rights to be equally as significant as the acquisition of those rights through enclosure.
To avoid loss of property rights through neglect, different kinds of property must be controlled in different ways.
Real property—land and enduring structures built upon it—requires physical maintenance, including the assertion of exclusive occupancy, to keep it in a differentiated state. Movable property requires maintenance of possession. In fact, the law of movable property includes a specific provision for alienation on the grounds of twenty years’ adverse possession: If you borrow my chain saw and I neglect to recover it for twenty years, it becomes yours by alienation. Thus, a principle of exclusivity determines the strength of one’s property rights over either real or movable goods: it remains yours because you’ve denied it to others.
Obviously, neither of these control mechanisms would apply directly to completely intangible property of the kind we call “intellectual:” the expression of an idea considered separately from any physical instantiation. The whole import of intellectual property is that it can be distributed non-exclusively, to a potentially infinite number of users, whose use of the property is neither abridged nor infringed merely because a lot of others are using it too.
Originally, the subject matter of the debates over non-excludable property was the written word and its close analogues. But of course, we’re far beyond that today. Even before the digital revolution, photocopying machines had begun to encroach upon the property aspects of text, of printed sheet music, of maps, and of any other kind of good that could be printed on paper. Inasmuch as this problem has not yet been solved, we should be unsurprised that the much stiffer problems of digitally encoded information, which no longer even require a physical medium to be transferred from user to user, are not yet under control.
As an example of just how much harder recent developments have made the problems of intellectual property, consider just one common example. Smith purchases a compact disc with music on it, encoded at the now-standard rate of 1.4 Megabits per second. He extracts one track from that disc to a WAV file on his PC, uses a freeware converter to produce an MP3 file of the track at 128 Kilobits per second encoding, and sends a copy to his friend Jones. Has he done an illegal thing? An immoral thing? A thing that, if not strictly speaking immoral, should nevertheless be frowned upon?
Note all the following:
- Smith did not transfer the whole of the music to Jones; he didn’t even transfer the whole of the one track he converted, but rather a reduced-fidelity sample thereof.
- The one track under discussion is a “bundled good;” it cannot be acquired apart from the other material on the CD by any commercial transaction approved by the vendor.
- Arguments over economic harm done to the vendor all assume that a sale has been thwarted by the transfer, without evidence to that effect.
- Analog transfers, in particular through cassette tape, have been grudgingly tolerated. In point of fact, they’ve been declared protected by federal court rulings, as long as they’re not commercial in nature—that is, as long as Smith does not collect money for the music transferred, nor use it in any other way to facilitate commerce.
- The vendor, in collaboration with his fellows, had provided the music in a widely documented format, with no effort made to prevent its use by anyone with an interest in the digital encoding of music.
To your Curmudgeon, the last point is the most telling one. It smacks of neglect, which in every other venue constitutes a cession of property rights.
In their quest for the big bucks, providers of entertainment and information in digital form have tried to eat their cake yet have it too. They’ve sought the volume-market advantages of an entirely unprotected, supremely convenient medium of expression, while claiming that their wares were nonetheless theirs by right and not to be replicated by the very techniques they exploited. This is, to put it gently, a demand unsupported by the laws of physics.
It hasn’t always been that way, of course. Especially in the realm of video, techniques such as “sync track decoupling” and “watermarking” to prevent illegal fabrication of copies have had some success. At this time, it’s not really possible to make a perfect copy of a movie distributed on DVD unless one has access to industrial-grade equipment, which isn’t affordable by most video enthusiasts.
Whether or not such techniques are entirely successful, they constitute an attempt to retain control. They thwart the claim that, by releasing a digital information product, video vendors have neglected the maintenance of their property rights, or have granted easements to the world that would open the gates to copying and redistribution. The effort counts in the vendor’s favor.
Here, and in the case of MP3 files, we see the shape of an acceptable compromise. It will require some further elucidation.
One of the maxims of technology, well known to bit twiddlers everywhere, is that “for every engineer, there’s an equal but opposite engineer.” Put more germanely to our subject, no copy-protecting scheme can be expected to defeat the crackers forever.
How long is long enough?
That depends on the product, the market for it, and the consequences of letting control lapse “too soon.” Copyright law was intended to secure the originator’s rights “for a reasonable period.” But what is reasonable is subject to endless debate, and partakes much of context.
Your Curmudgeon was born in 1952. He grew up with a lot of popular music that younger readers might not have grown fond of. Recently, he’s been delighted to find that much of that music is now available as MP3 files, and has availed himself of it freely. All of it is at least twenty years old. None of the performers still record or perform for public audiences.
Should the performers and distributors of twenty year old music continue to have absolute rights over it, even though they no longer market it in any form and have made no attempt to exercise control over it since then?
Your Curmudgeon thinks not. If twenty years’ neglect will alienate a chain saw, why oughtn’t it to alienate a recording of a specific performance of a specific song? But then, he’s an interested party—and he freely admits that if the period were not twenty years but five, he’d acquire conscience qualms that would stop him from doing what he does.
As previously mentioned, “reasonable” simply begs the argument. “Reasonable men” have differed on everything under the Sun, from disestablishmentarianism to the right way to hang toilet paper on the spindle. Any threshold we establish will be objectively arbitrary. It will fail to gain the assent of some interested parties.
This is not an absolute argument against setting some standard. We establish Magic Numbers of many kinds in our law, each of them no less arbitrary than a statutory time interval for the neglect of digital information. But they tend to achieve the desired effect, if enough of the interested parties will voluntarily abide by them.
The most enforceable laws are those which require the least enforcement. This might sound like a tautology. It is not.
An acceptable regime of intellectual property would encourage artistry and innovation with its profit potential while simultaneously allowing reasonable sharing among consumers and not extending law into areas where enforcement is effectively impossible. This will require a convergence of:
- Acceptance of a control-and-neglect standard by artists and distributors;
- Acquiescence to non-intrusive control mechanisms by an adequate preponderance of consumers;
- An arbitrary time standard for the decay of the protected property right;
- A respect for advances in technology that destroy previous enclosures.
The first two of these are fairly obvious. The third takes account of a major difference between intellectual creations and tangible items: the intellectual creation never physically decays, yet at some point, by nearly everyone’s judgment, it becomes unreasonable to maintain that absolute rights over it still belong to anyone. The fourth is merely respect for the limits of enforceability; an unenforceable law weakens respect for all law, while simultaneously providing prosecutors with an unacceptable instrument of discretion.
A theorist determined to plumb this all the way to its bottom would have a large task ahead of him. Fortunately, the usual route toward a stable and enduring solution doesn’t require elaborate analysis; mostly it requires a little trial and error. But it also requires two things that have been little in evidence in recent disputes over intellectual property: generosity, and a willingness to compromise.
Vendors of IP-dependent goods must cease to act as if they can have all the control they want over their markets, without prodigious additional investments in sophisticated anti-copying technologies—investments whose return would probably be far less than they’d like. Consumers of IP-dependent goods must cease to think there can be no important consequences from the complete abridgement of the property rights of the artists whose works they covet. And those who hope to feather bureaucratic nests by riding this issue until it reaches crisis proportions should simply sit down and shut up—or better yet, learn to play an instrument.
An interval of ten years’ of protected-rights time, dated from the day of publication, during which IP vendors who exerted some reasonable attempt to control their products (and their products’ dissemination) would enjoy full rights over them, would probably satisfy most interested parties, especially given the faddish nature of the products themselves. The time interval should be reviewed periodically, but in all probability only small adjustments—down to seven years, or up to perhaps fifteen—would be required to maintain the peace and grant adequate incentives to IP producers.
Should a vendor fail to control his product’s dissemination, or should the technique he chooses for packaging and distributing it be too easily cracked to be protected, the law would hold that the vendor had brought about his own problems through contributory negligence. Easement to the consumer, or cession of the property back to the common, would follow by implication, and the vendor would lose any right to a government-enforced remedy.
However, a consumer who deliberately violated the ten-year rule, who stole properly guarded information or technology to crack a product’s anti-copying technique, or who engaged in a conspiracy to subvert a vendor’s IP from within, would be subject to the weight of the law. It is just such actions that destroy the incentives to create.
Special provisions might be required to deal with “reduced fidelity” copies of IP works. The MP3 file and the VCD are good test cases for this problem. A fair number of music vendors give away MP3 versions of music they’ve put on the market as a teaser, an inducement to sales. Some movie houses release reduced-fidelity swatches of their offerings to draw people into the theaters. This is all very well...as long as sauce for the vendor’s goose is allowed to be equally valid for the consumer’s gander. After all, the maker of the “illicit” MP3 has himself added some labor and understanding, and occasionally a little capital, to the product. Probably the best approach here would be for vendors to become actively involved in reduced-fidelity dissemination, through approved redistribution sites that charge fees to members and return a portion of the proceeds to the IP rights holders.
The theoretical aspects of the thing should defer to the achievement of a stable regime in which legal action is minimized, artists still feel an incentive to create, and consumers are permitted some latitude in their quests for IP items that have been around the block more than once. As futurist and nanotechnology guru Eric Drexler said in Engines Of Creation, we can always complete the paperwork later.
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