Defining Property | Hacker News Reader

Defining Property

paulgraham.com

551 pointsanateus299 comments

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.

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.

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.

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.

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.

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.

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.

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.

> 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.

> 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 - 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.

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.

> 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.

> 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.

But in the case of copyright, that extra commercial value depends on us already accepting some copyright-like notion.

One can only expect to command a copyright-level price for a copy if other people obey a copyright-like law to not make other copies.

But that is just going in circles. One cannot justify something based on itself.

Of course there's limited commercial value in holding intellectual property without legal protection, because there's limited commercial value in holding any type of property without legal protection. But that's completely beside the point of the natural law argument.

For what it's worth, I don't actually agree with this argument; I was just pointing out that it's possible to use natural law to argue in favor of intellectual property rights.

But I think you can take a 'natural law' perspective to make a reasonable case for distinguishing copyrights/patents/trademarks from the traditional notion of property. I attempted that argument in an old HN thread[1], based on the distinction between conventions that arise 'naturally' from an emergent social context, such as traditional physical property, and those that require top-down design in the form of legislative action. I think one could regard physical property as belonging to the former category and IP as belonging to the second.

[1]: http://news.ycombinator.com/item?id=2284636

That's the idea of natural law. The concept of "owning" something in nature that is not scarce is not a natural concept.

The notion that property has value is pretty much a universal concept.

Scarcity (smells on the moon) or lack thereof doesn't alter the principle of value, it varies the scale of value.

But it does alter the principle of price. Air is one of the most valuable things on the planet (you would live only 3 or so minutes without it), but it's free, because it's not scarce.

PG seems to be advocating a pragmatic approach, based on the difficulty of enforcement. Goods can be excludable or non-excludable. Excludable goods are anything that can be effectively locked down (like most physical goods, or movie tickets). Non-excludable goods can't (like air, fish in the sea, and IP). You can make a non-excludable good excludable by creating laws (like Carbon Taxes or IP laws), but it's not always practical.

But he kind of misses the other half - rivalry.

Goods can also be rivalrous or non-rivalrous. Ideas are non-rivalrous as you don't lose anything (except a competitive advantage) if other people also have it. In fact, IP may be the opposite to rivalrous (which is a rare enough thing to not have a name, though I like the name "network goods"), because it's worth more if everyone has it. If more people can speak a language, it's more useful to everyone. The Lord of the Rings is more interesting if you can talk to your friends about it.

While there's a good reason to try to make common goods (rivalrous but non-excludable) goods more excludable (by introducing laws which prevent over-exploitation), it's perverse to make non-rivalrous excludable. You don't tax breathing if there's plenty of air.

The main reason you want to make a public (non-rivalrous non-excludable) good more excludable is to incentize its creation (another reason might be because it's judged to be a "de-merit" (bad) good - such as a porn or a method of manufacturing weapons). But since IP is an input to creating IP, there's very good reasons why you want to make copyright and patents expire in a short time - bringing down the cost of creating new IP may outweigh the lost incentive. Also, the anti-rivalrous nature of IP may even encourage people to make more, simply because it's so useful have more people using it - Linus got his own private kernel debugged and extended at a lower cost by sharing it.

One thing that strikes me as unnatural about copyright is how difficult it would be to enforce effectively. With a traditional crime like robbery, the victim suffers a direct loss. The victim or a relative can report the event to the authorities. With copyright, the victim suffers no damage. Most of the time, the victim of infringement doesn't even know that the event occurred. To enforce copyright effectively, all private communications would have to be monitored at all times. After all, any data transfer between two people is a potential violation of the copyright of a third party. Even private chatter inside your home would have to be recorded and analysed. Otherwise, you'd be allowing kids to sing "Happy Birthday" without a license.

Would you then say that identity constitutes intellectual property? After all, identity “theft” (really infringement) can also occur without the victim’s knowledge, and without perceptible loss. Does that make such crimes less serious? Do they not still undermine something of value?

Identity theft is only as bad as the fraud that was performed through it. If the act causes a measurable loss to the victim (e.g. credit card fraud), the victim is going to find out about it one way or another. No need for surveillance. However, if you wanted to effectively forbid anyone from impersonating anyone else even when no harm is done, you would definitely need a surveillance society.

Unfortunately, traditional identity 'theft' is automatically noticeable when someone apply for a loan / get's a credit report / receives a bill for services rendered to someone else. What your describing is closer to someone using your hair style / an Elvis impersonator walking around and generally those on not considered a crime. Your credit score is a finite resource your haircut is not.

Re edit #2, that exact reasoning was applied by Lord Mansfield in the famous 1772 ruling in Somersett's case[2] that slavery was never legal under English common law:

"The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it's so odious, that nothing can be suffered to support it, but positive law."

[2]: http://en.wikipedia.org/wiki/Somersett%27s_Case

It also made me think about post-scarcity economics. http://en.m.wikipedia.org/wiki/Post_scarcity

We are a looooonng way from post-scarcity. In the same way that home printing didn't kill books.

Post-scarcity has already arrived for every resource that has a marginal cost of production equal to zero. That includes every digital product.

That's not to say we're living in the age of post-scarcity. Most of our resources are still limited, and you're right that non-digital resources are likely to retain scarcity for a very long time. Furthermore, post-scarcity will never arrive for inherently limited resources, such as time.

But PG's essay addresses industries selling digital products, and within that realm, post-scarcity has indeed arrived.

> marginal cost of production equal to zero

I think it would be more correct to write "reproduction" or "distribution", because it costs a lot to produce a movie or a book or a big, complex piece of software.

Marginal cost does not include initial investment. https://en.wikipedia.org/wiki/Marginal_cost

It seems like you're miscommunicating over where to delineate the product. You are right that the marginal cost of the Nth copy of a particular film is about zero. The marginal cost of making the Nth film is still decidedly nonzero.

Right and in any event it's ridiculous to talk about a "post scarcity" world when there is oodles of scarcity surrounding the creation of information goods like movies.

That's exactly what Marginal cost is, the change in total cost to produce one more copy of the same product.

> Post-scarcity has already arrived for every resource that has a marginal cost of production equal to zero. That includes every digital product.

I must be doing it wrong because I don't know how to copy bits for free, let alone distribute them for free. I'm in good company - neither Amazon nor Apple knows how to do those things for free either. (The fact that their current costs may be dominated by billing doesn't imply that billing is their only cost.)

Amazon and Apple aren't in the business of distributing digital goods with low marginal cost. They are in the business of distributing digital goods with the highest marginal price possible, so they have little incentive to reduce their marginal costs as much as possible. (Even so, their profit margins are very high.)

When you stop trying to impose artificial scarcity and simply try to distribute with the lowest possible marginal cost (things like Project Gutenberg or Bittorrent), you find that even if the marginal cost is not exactly zero, it is close enough that the marginal cost does not affect the pricing across any real-world range of quantities. Thus, the traditional supply/demand model no longer applies.

> They are in the business of distributing digital goods with the highest marginal price possible, so they have little incentive to reduce their marginal costs as much as possible.

Oh really? You think that Apple and Amazon don't care about their bandwidth charges? That will be news to the folks from whom they buy bandwidth. You also think that they don't care about the cost of the servers to send that content out?

> you find that even if the marginal cost is not exactly zero, it is close enough that the marginal cost does not affect the pricing across any real-world range of quantities.

There's your problem - you think that when the cost is minimal, supply/demand doesn't apply.

Your "economics" is several decades out of date. Lots of things aren't priced by cost, but by value. Supply/demand works just fine for them.

> When you stop trying to impose artificial scarcity and simply try to distribute with the lowest possible marginal cost (things like Project Gutenberg or Bittorrent)

Ah, you think that bittorrent is cost-efficient. It isn't. It's a way to spread infrastructure costs across a lot of people.

In other words, you're confusing cost and price again.

"You think that Apple and Amazon don't care about their bandwidth charges?"

I really didn't say that, and you know it.

Apple and Amazon don't want to have a very high marginal cost, but they really don't mind small costs like credit card transaction fees. They don't need to eliminate those costs in order to be profitable. Minimizing their marginal costs is not their top priority.

>>You think that Apple and Amazon don't care about their bandwidth charges?

> I really didn't say that, and you know it.

The person who wrote "They are in the business of distributing digital goods with the highest marginal price possible, so they have little incentive to reduce their marginal costs as much as possible." either thinks that bandwidth costs aren't marginal costs for content distribution or did write that A&A don't care about bandwidth charges.

> They don't need to eliminate those costs in order to be profitable.

So? Lots of companies are profitable without eliminating certain costs, but that doesn't imply that they don't care about those costs.

You seem to think that a company that has "enough" margin doesn't, or shouldn't, care about costs. Some evidence would be nice.

> Minimizing their marginal costs is not their top priority.

Move those goal posts.

Sure, if the cost of infrastructure is taken to be a result of the requirement to replicate data. But given an infrastructure that is maintained irrespective of its use for data replication, replication is free. The former case may describe Amazon and Apple, but the later case describes pirates.

Using that infrastructure has incremental costs. Plus, building it to accomodate data replication in addition to other things costs more than just building it to accommodate those other things.

I'd say it varies widely based on the resource in question. Open-source software and wiki data have a nearly perfect lack of scarcity; bandwidth and server disk space are just slightly scarce; other resources like oil (or the ultimate scarcity, human time) follow conventional rules of economics.

Home printing may not have killed books, but ebooks have made a significant cut in normal book purchases.

And you can get more books than you will ever have the time for of project Gutenberg (and some of them can be read on your kindle).

I'm not sure about that. PG leans a lot on whether or not the new law "warps society", which could comport with a natural law view, but is more naturally interpreted as something more empiricist or pragmatic.

---

EDIT (in response to parent's edit #1): Everyone -- utilitarians, legal positivists, conventionalists, etc. -- thinks that the law should adjust to certain realities. Likewise, the parent's definition of "rules that humans...would voluntarily adopt" is orthogonal to questions about the source and authority of the law.

I am very sympathetic to natural law but PG's piece doesn't really strike me as falling one way or the other on this issue.

See also this comment and PG's response: http://news.ycombinator.com/item?id=3694703 -- nothing to do with scarcity or technology, there.

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.)

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 :)

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/

To ease the logistics, perhaps someone could just send the RIAA/MPAA a torrent containing a lot of dollar bill images? I can think of no more fitting way in which to spread out the bandwidth costs.

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". :)

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 :-)

That is awesome!

Where did you host this?

Submitted to Reddit:

http://www.reddit.com/r/funny/comments/qtie0/new_campaign_to...

On my own server. Static file + nginx crosses fingers.

A man is caught speeding by a speed camera; he is sent a picture of the car with his license plate visible, the speed measured and the ticket to pay.

He sends back the police a picture of the money to pay for the ticket.

The police send back a picture again -- this time of handcuffs.

This time, he pays.

Does anyone know of a good book about Ooka Tadasuke? He sounds like an interesting guy to read about.

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.

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.

> 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.

What is this 'protecting effort'? What does it even mean? You seem to be advancing this as grounds for justifying copyright, but to do that it must have some meaning independent from copyright. Otherwise it is going in circles.

The substantial question here is more basic: are plenty of things being produced, and do we have easy access to them?

We want to pay people to do work (to some significant extent). Copyright is a troublesome and inefficient way to do that now. So we should start doing it in other ways -- see what the market produces, adapt some already existing, invent some new ones.

If people are paid sufficiently to produce, or just if plenty of stuff is produced by whatever ways, what (else) is/isn't/needs to be 'protected'? (We can perhaps have laws for proper attribution, but that is not really a matter of copyright.) Do we want to 'protect' information from being copied? No, of course not: on the contrary, we want it to be spread and used and adapted.

This idea of 'protecting effort' is gone along with copyright. It only means something if we believe in copyright -- if we do not, it disappears.

> 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?

In the worst case, the studios wouldn't make as much money, and those people would get paid less (or some would lose their jobs). Of course, this is no different than if a studio makes bad films that people simply don't want to see, but that doesn't mean that we should have laws saying that movie-goers must pay to support all those people working on the bad films.

What you're implying is that simply putting time and effort into something means that you necessarily deserve a certain amount of financial reward. I disagree. I think the financial reward you deserve is equal to the amount of money your customers are willing to pay you.

Of course, this is no different than if a studio makes bad films that people simply don't want to see, but that doesn't mean that we should have laws saying that movie-goers must pay to support all those people working on the bad films. No-one is proposing such law. Bad studios making bad movies with bad coworkers go out of business. However, I fail to see how this is "no different" from good studios making good movies with good coworkers going out of business because they cannot reap the rewards of their investment.

I think the financial reward you deserve is equal to the amount of money your customers are willing to pay you. This is the law of supply and demand reformulated. Question is if people that copy or download movies without paying for it can be considered customers.

The middle ground probably involves drawing a line at commercial exploitation of the work. If you want to see a movie in the theatre - some of the money you're paying should go to the studio. If you don't feel like seeking out p2p software, curating your own music collection, and independently supporting the artists to your satisfaction - some of that music-store money should go to the artist. One shouldn't find commercial streaming sites charging money and then not compensating the creator.

But note that PG's essay mostly comes from pragmatism, and what I've described is similar to the way things are today. It's a hard fact that copyright enforcement on individuals is fundamentally incompatible with universal computation and ubiquitous Internet. I, for one, am much more worried about the Internet dying out (where "Internet" implies common adherence to the seminal End-to-End principle), than politicians suddenly deciding to legislate away the studios' box office revenue. As such, I will continue to oppose copyright in a non-nuanced manner, and work on Internet-preserving software.

If you want to see a movie in the theatre - some of the money you're paying should go to the studio.

Just wanted to point out that that particular example -which covers a lot of movie income- doesn't really require acceptance of intellectual property: the studio just needs to contract with the movie theaters before giving them a copy of the movie. They'll have no incentive to provide a copy to their competition, and a movie theater that displayed a "leaked" copy would lose business from the studios.

A movie theater could be paid to leak to a rogue theater in a different market, assuming the studio couldn't tell which theater leaked the movie. (Hey! This is a scenario where DRM might actually work!)

People could pay upfront for production of things, see for example the recent case of "Double Fine Adventure" on Kickstarter.

Also production means change all the time. It is not a given that you need a zillion of people to make a movie. It is also not a given that such movies are a need of mankind - as you say yourself, that particular movie you saw was really lousy.

Even today most movies don't make money.

The hit driven approach could be replaced by other means of funding. Just off the top of the head, what if instead of saying "what would be the most mainstream message of a movie possible, so that it has the highest conceivable target demographic", movies would be sponsored by people who want to convey some subtler message (ie millionaires or fundraisers, or simply enthusiastic people).

Just because copyright still works for protecting authors works from movie studios, or protecting the Gottman method from therapists doesn't mean it works in protecting distribution channels from the internet.

I don't think there are any appropriate legal remedies capable of protecting distribution channels on the internet. If that means movies don't have as large budgets then so be it. The level of movie budgets in years past reflect a high water mark in the ability of content producers to control distribution and reach large numbers of people - they aren't of value to society in any inherent way.

You can separate commercial rights from copyrights.

You can see this in anyone who finds a difference between "Hey, listen to this mp3 of Rihanna's We Found Love", "Hey, buy this unofficial mp3 copy of Rihanna's We Found Love", and "Hey, listen to this mp3 of grellas' We Found Love"

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" - i paused on this metaphor for a few moments, but i can't think of a better one!

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".

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.

If there's some RIAA lawyer tearing this analogy to pieces, please point us to them. I thought they worked mostly on the level of talking points, with their favorite argument being declarations that piracy has cost us $X for some large X. And Ars Technica already rebutted those figures.

But if they're making some new arguments, I would like to read them. By all means, please point us to them.

Better terms: preaching to the choir, speaking in an echo chamber.

The best evidence of the usefulness of PG's post are replies like yours which (hilariously) cannot refute his points. Too many people are blindly devoted to the idea of copyright. He's not exactly preaching to the choir.

Please, refer me to an RIAA lawyer who can justify copyright in 2012.

This is going to make me look like a pg fanboy:

I don't see where he outright dismisses other people's opinions. In fact, he's repeatedly said to people who disagree with him to "point to a sentence which you think is false". You will have to be more specific than that.

It's impossible to speak for someone else, but I believe pg would very much welcome someone DH-sixing him.

Another thing to keep in mind that this is not some long lasting argument that pg has with the RIAA, it's an essay on property.

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.

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.

> I neither own nor possess my apartment

In a legal sense, a renter actually does possess their apartment (but they do not own it): http://legal-dictionary.thefreedictionary.com/possession

We used to treat people as property too. Things change... for the better most of the time, hopefully.

That is a really good example of such change.

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.

In the US (where pg lives and the MPAA/RIAA are based), the only reason that anyone is allowed any intellectual property protection is to advance society:

> 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.

The obvious way that this works is that authors are motivated to create because they have the exclusive right to sell their creation (and thus make a profit). That seems pretty OK to me.

However, no amount of money is going to be able convince Mr. Lennon and Mr. Harrison to get the band back together. So, why are we still paying for that content? How is that advancing the arts? Would giving current creators the ability to use the entire back catalog of the Beatles without any cost or legal hassle advance the arts more? I would argue yes.

I can't find an article for this, so sorry, maybe someone can, but I believe that the majority of books go out of print rather quickly. However, we're not allowed to copy them freely. When those books go out of print, we're taking society backwards. They're impossible to acquire legally. That's really bad.

We need a balance. I think five to ten years would be fine. Opening up access to a new generation of small creators is better than providing further income to the JK Rowlings and Paul McCartneys of the world. They're already rich by that time anyways.

This comment will get lost in the chorus of "no, selling art is like warping society to charge money for smells!" but I want to chime in to say I agree with you completely; normally I'd just upvote, but that won't suffice here for obvious reasons.

You're oversimplifying things. Copyright is about way more than requiring people to pay to listen to music or watch movies. There are other interests that need to be balanced, such as the ability to create new works based off existing works, and the ability to preserve works for posterity. Copyright has to be a compromise between the artist's interests and the public interest. You can't just create a legal framework that absolutely enforces the artist's wishes.

I agree. I'm not suggesting there's no merit to the argument that the RIAA/MPAA have an antiquated business model, but the way we usually get there is odd. People don't want to pay for it. Now they have a way to not pay for it. Thus, the old business model is broken. Of course, if the business model is broken and you want to make a principled stand, you shouldn't consume the content. But that's rarely what happens. Instead, it's just used a scapegoat to do whatever it is we want on some whacked out moral high ground. I wish people would just be honest about their intentions. At least then we can have a philosophical disagreement.

Maybe, but you're really pushing water uphill there. Literally everyone I know has several illegal copies of something, and don't think twice about it. The idea of sharing content is pretty deeply ingrained. Just think of lending books or a DVD. In terms of lost sales it is exactly the same is copying a DivX.

EDIT: To clarify: I'm not saying artists shouldn't get paid, only that was has traditionally been purchased is essentially access. Changing that mindset is likely to be difficult.

Can't agree more. I thought we all agree on contract law, and respect each other's work. Apparently people here ignore it completely just for the convenience of watching some stupid movies and musics for free. Really?

The way you hurt media people will eventually hurt software people. If you don't like the authors' terms, please don't be a lazy consumer, be a producer yourself, and offer your work for free, if you think that would be better to society.

Greedy people sucks.

Respect? Imitation is the sincerest form of flattery.

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."

"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.

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.

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.

> 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?

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.

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.

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.

Ideas are inert. What is called "control over ideas and labor" is really control over other people who wish to use and build on them, and that is at best a necessary evil we should minimize.

Ideas are fairly different than books, or movies, or Emacs, or MacOS X, though, aren't they?

Not really. I'm using "ideas" here as a substitute for the term "intellectual property", which includes copyrights and patents. The term encompasses a range of abstractness, but how abstract an idea is doesn't change the fundamental lack of natural scarcity or the property of having more value when more widely disseminated.

Serious answer: "a good idea" is something you can describe in a paragraph, or a few pages. A book is something that takes months or years to write, and may well be something read for pleasure, and thus does not have many positive externalities as per your comment above. IP is something you've got to be specific about: software patents are different from biotech patents which are different from copyrights on various things, which are all different from trademarks (which no one seems to complain about all that much).

Snarky answer, which I feel somewhat guilty about including, but I liked it too much to erase it: if you can't spot the difference between an idea and a book, perhaps exposure to more of both would be beneficial to you.

No hard feelings, I guess I owe you a beer.

The conciseness with which an idea can be expressed is in no way related to the amount of work that went in to developing the idea, or the potential value of the idea to society.

FYI, trademark law is not based on the same constitutional foundation as copyright and patent law, and serves a different purpose, and is typically dealt with much more pragmatically than copyright and patent issues, so it's seldom relevant to the same discussions.

The producer of a good sets the price, it's that simple. You don't have to buy it, especially not with a luxury good like media.

If it were a monopoly on grain that's another matter.

The producer can certainly set the price, but can they attach other strings? The first-sale doctrine says no, except where explicitly allowed.

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...

The real world contradicts the theory that only people with deep pockets or deep-pocketed patrons (other than, y'know, a day job) would create skillful artistic works. People do it for free every single day.

"The real world contradicts the theory that only people with deep pockets or deep-pocketed patrons (other than, y'know, a day job) would create skillful artistic works. People do it for free every single day."

That wasn't what I meant to say, and I apologize if I worded things confusingly.

Rather, my point was that people who spend a lot of money creating content need to recoup that investment, unless they can afford to give it away (or are financially sponsored). I didn't really say anything about quality levels, or about whether a profit motive is necessary in achieving something of skill.

They dont need to. they would almost certainly like to.

Every day people spent time and money on things that the market doesn't want to pay for.

That is their lookout.

> 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.

Sure, but those people are (by definition) not professional artists. There is a demand for well crafted art, people will certainly pay for it, but the old model (RIAA/MPAA) doesn't work and is counter-productive.

It seems that the question is not "should artists get paid," but "what is the best model for artists to get paid?" For example, if all music everywhere was always free for personal use, musicians would still be able to make money touring and selling merchandise and licensing their songs for commercial use.

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.

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?

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.

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.

So now the artists are screwed by the middle men and the audience both.

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.

> 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?

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/

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).

1) Go to a concert. (The traditional way musicians make money and pay-off their CD distribution costs.) 2) Purchase a la Louis CK model. 3) Share your enjoyment of the music with others. (Build the artist's fanbase.) 4) Watch the artist's YouTube videos and click on an advert.

Or 5) Just give them money, like I do with my local college radio station every year.

Those artists dont have to be artists. If they realize that their audience is not voluntarily paying them for their art, they can change jobs and do something where customers voluntarily pay for the work done.

This is not a legitimate counterargument. Of course if the economics are not working, we can just decide "oh well, I guess nobody should create music anymore." But obviously the goal should be how to structure the economy so we can enjoy music and musicians can live comfortably.

> But obviously the goal should be how to structure the economy so we can enjoy music and musicians can live comfortably.

No, thats ugly socialism. We dont want to structure laws and economy so a certain kind of jobs becomes profitable which otherwise wouldnt. If they are necessary and wanted, they will be supported by their customers, if they are not wanted, who cares then. Let the free market decide.

This is ridiculous hyperbole and takes my point too literally. Copyright law is there because we want creative work to be possible to sell on the free market. Patents are there because we want inventors to be able to have incentives to invent. As flawed as they are, they are not "socialism."

As a society we get to decide, as pg says, what property is. This is a roundabout way of saying we get to decide what endeavors can be profitable, by attributing property-dust to their creations and protecting them by force of law. I think most people would agree it's in everyone's interest if we can structure the economy and laws so people who create things such as music have the opportunity to make a profit.

> Copyright law is there because we want creative work to be possible to sell on the free market.

Er, what? Where do you get this claim from?

I imagine things like going to concerts or buying merchandise would work.

It's impractical to completely bypass the middle-men because they hold a monopoly on that artist's output, but there are plenty of ways compensate an artist without buying his MP3s.

The fact that artists are getting screwed by publishers is not a justification to screw them harder. I wish people spent more time imagining ways to pay for the arts rather than just coming up with arguments for why it's OK to download a song without paying for it.

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.

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.

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.

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.

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...

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...)

Corporations have even tried to make rainwater collection off of roofs illegal.

They've succeeded. Offhand, rainwater collection is illegal in CO, UT, and WA, and may be in others, too.

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.

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.

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.

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.

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. :)

> That said, Jefferson was one of the framers of the Constitution

Nitpick: he wasn't. Jefferson was in France during the constitutional convention.

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.

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.

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).

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).

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.

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.

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

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.

Both mindsets are legit. The only way to find out which one trumps the other is to vote on it. Surprisingly, nobody on the planet ever voted on copyright. It was decieded from the top down, in shady backroom deals and behind closed doors. It has always strategically excluded any democratic elements, because it was always enforced against the masses. The game is essentially rigged and under the current representative democracy system, there is no way to correct it, because the special interests simply buy out whomever we elect to represent us. And since we cant change representatives as fast as they can buy them out, theres no way for anything to change in the short term, unless we start getting rid of representative democracy alltogether and upgrading it to direct democracy.

What the MPAA/RIAA are doing is despicable, but at the same time it is an indicator that there exists a more fundamental flaw in the system which allows them to easily exploit it and buy their way out of the democratic framework.

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.

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.

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.

>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.

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.

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.

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.

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.

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.

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.

>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.

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)

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.

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?

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".

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.

freely redistribute media

Is that really fair use?

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

It's fair use if you don't abuse it!

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.

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.

minor nitpick: a cubic liter is not a thing. Liters are already measures of volume.

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.

touché

Oops, I was conflating cubic meter and liter; fixed, thanks.

i've always loved that a cubic decimeter is a liter is a kilogram of water.

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.

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.

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.

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.

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.

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.

Read this: http://www.jonathancoulton.com/2012/01/21/megaupload/

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.

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.

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.

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

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

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.

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/

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).

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.

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?

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.

[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.

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.

There is a multi-billion dollar industry based around making smells property, perfume.

I find the ownership of the right to produce food by eg Monsanto way more terrifying.

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

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

Smells dissipate.

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.

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.

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?

A technology that could instantly clone any software service would have to be magical enough that I think its benefits would outweigh the drawback of killing a business model.

Unless the result was no more software services.

Why would we want individual software services when we have one software service that solves all those problems?

Try this spin: if you release a program as FOSS with the GNU license, why should anyone respect the licence?

Same with movies/music: before release, nobody has a copy. It is then released subject to terms you may or may not like; nonetheless, those are the terms and if you don't like them you have no right to disregard them & make a copy anyway.

It's not like smells. Software, be it programs or movies, does not diffuse by itself to random passers by. Copies are deliberate, and each is subject to contract law.

The GPL is a hack. If copyright goes away, you could just copy, disassemble, or duplicate the funcionality of a piece of sotware in order to learn how to tell your computer to do exactly what you wanted. DRM would go wild and hardware oriented, and a constant arms race would follow, but DRM may be an impossible problem.

For example, I'm producing a closed-source, proprietary piece of software to make a living. I will aggressively defend my copyright. Do I believe in copyright? No. But I'm operating in a bad system and I need to eat. In a better world, I'd be doing the same thing as work for hire for a group of actors within the industry who would collectively benefit from it, and customizing for any who had particularly unique use cases. I'd be working to reduce friction for the entire system and to make the tools that computers are generally more useful, rather than reenforcing the oligarchies of the market leaders who can pay my price (which is almost completely unrelated to my effort, but rather to the value of advantage over competitors in an underserved market.) My software being proprietary is just limiting general productivity gains and distorting the market (from whence comes it's value), and my enforcement is just limiting everyone's freedom to use their own machines.

another tl;dr, the GPL hack creates an island of freedom within a restrictive framework, and if the restrictive framework is gone there's no need to respect the GPL, a child of that framework.

I think many creators of GPL software see it differently, and wouldn't be ok with people making proprietary modifications to their code, even if anyone was free to disassemble the modified code and try to make sense of it.

I know many creators of GPL software would absolutely see it differently, but they still wouldn't get to tell me how to use my own computer. Restrictions on your freedom to express yourself is what the GPL was designed to fix, even though it itself is a restriction on your freedoms.

We can't oppress the poor DRM artists:)

The world I want is a world where people don't have to spend hundreds of millions of dollars to make movies like Avatar. They can make movies that good themselves in their free time as a hobby. Other people who like the idea can get on board and help. In the end the result is shared with everyone like telling stories around a big global campfire. (They may or may not then sing Kumbaya).

That seems ridiculously impossible and utopian right now, but I'll bet that won't always be so. How do we get there from here? I'd really like to short circuit the part where everyone that believes this is impossible or undesirable economically has to die off before this can happen.

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.

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...

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.

>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?

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.

Providing content by means of distribution is not adding value. It's only that: distribution. The creator is adding the value. Why should he not be rewarded? With your line of argument you are in line with the entertainment industry who effectively monopolized the distribution channels for a long time.

That's the basic premise I'm fighting against. What I'm arguing is that that's not actually true.

If you cure cancer but you keep it in your basement should you be rewarded for that?

If you know the cure for cancer, but you didn't invent it yourself, should you be prevented from spreading it?

Your argument is that you never get the cure for cancer without incentivizing someone with the financial rewards to do it, which is a fair one logically, but in the case of the reality of the music industry it's quite simply not what's happened (the RIAA themselves have funded studies that actually showed piracy increasing profits). Instead the music market has been enlarged, and the RIAA is simply getting less of it. This is a Good Thing.

My argument is not inline with the entertainment industry because I am arguing that copyright infringement should no longer be a crime. People who provide the value of getting valued ideas to people should be paid for it, regardless of who created the idea. Publishers don't provide the value of creating or spreading ideas, they provide the value of selling a copy of an idea. We shouldn't give them licenses that says they do anything else because they don't.

That argument breaks down when you consider the average drug company spends more money on advertising than R&D. Many studio's spend more money on movie promotion than movie advertising.

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

Who said that software is property? Not me.

http://raganwald.posterous.com/i-have-a-bad-feeling-about-th...

You could always give performances and charge for those!

Oh, wait...

Joking aside, I think that IP is and should remain a messy compromise. There are no easy answers. Were it to cease to exist completely, it would reduce the incentives for producers, and thus consumers would be worse off too because they would have less software, books, movies and music to enjoy. I don't have all the answers in terms of details, but copyright terms right now are too long. Patents should vary by sector, taking into account the real world. Biotech patents applied to medicines are useful because those medicines are easy to copy, more often than not, but take years of research to come up with. Software patents just seem like bunk to me. Other things are probably in the middle somewhere. And all of this should be reviewed every 10 years or so to see how the facts on the ground are changing.

As for enforcement... that's tricky. With no enforcement at all, it's sort of silly to even pretend that producers have any rights. Too draconian is obviously bad as well.

Anyone have any thoughts on the details, wherein lies the devil?

Also, speaking of smells and property, Googling for "perfume intellectual property" turns up some interesting stuff, like this:

http://www.patentbaristas.com/archives/2010/01/19/smelly-rig...

I agree with IP being a messy and (currently) necessary compromise. The problem is that it requires retro-fitting an economic incentive structure based on scarce and defensible atoms to a good that is none of those. It's like asking what kinds of rail-roads we should build for our cars to drive on.

Sure, we can continue to limp forward with the mess we have now, paying the huge legal overhead, as well as the opportunity cost of the economic activity which is hindered by this environment (patent trolls, remix culture, etc).

But I don't think we should be content with that. I'd much rather we explore new incentive systems which are oriented specifically toward knowledge work. We already do this in the form of new business models: commoditizing your components, freemium, gift economies, etc. But there is still a lot of unexplored space in creating new ways to profit from the creation of data, either by creating new business models, or drafting new social conventions (government-backed or otherwise).

The devil is in the details:

How do you propose we give someone the means to make a living writing books, for instance? Someone who is at the margin, not Stephen King ( http://journal.dedasys.com/2012/01/21/thinking-at-the-margin )?

* Commoditizing components doesn't work very well with books. This might work ok for saturday morning cartoons, where there are toys to be purchased, but it's a fairly limited model, especially for most authors, who don't have much else to sell.

* Freemium means that you still make people pay for the goods and they are not allowed to freely copy them.

* "Gift economies" is very hand wavy and, by and large, does not put food on the table as far as I can tell.

I suspect that there are new business models, but ultimately, it comes down to a question of scarcity. If information goods are, by law, not scarce, but the time needed to produce them is scarce, then they will be underprovisioned.

I agree that the devil is in the details. But I don't think creating artificial scarcity is necessarily the only way to create a market. There is still a major social component to trade that is too often ignored by economists, and people will sometimes pay even when they don't have to.

I think the case of podcasts is illustrative here. Despite a lack of DRM, a convention of free-as-in-beer, and a zero lawsuits (that I know of), the field has been thriving for 10 years using incentive structures which do not require IP:

- Pure Promotion, such as comedians who put out a free podcast to attract fans for live performances.

- Up-sells, whether for additional premium content, apps, t-shirts, etc.

- Donations, which at minimum can defray overhead costs. (It's worth noting that Kickstarter is fairly indistinguishable from a donation/gift economy, assuming the reward isn't a simple pre-order.)

- Advertising, while a dirty business model for producer and consumer alike, still can pay the bills, especially if ad content is tasteful and targeted.

Now, these methods are by no means the only ones possible, and that's my point. Rather than to try to create scarcity out of abundance, I think we're better off embracing it, and finding new, indirect ways to profit. To re-use PG's analogy, rather than suing the smell-stealer, the restauranteur could invite people to enjoy some free smells, knowing that some would be enticed to pay for a meal. Or he could buy the land next door and rent the space for gatherings, touting free smells. And on and on.

The same way I propose blacksmiths, phonograph repairmen and punch card programmers make a living: not doing those things. Just because some people can't make a living doing something does not mean the government should protect it.

Those are practical professions superceded by other professions/products/whatever that could do the same thing, better.

"Producers of information goods" is a far broader category, including authors, musicians, movie and software people; and one not superceded by something more practical, unless you consider twitter a good replacement for books.

And government protection to create a market is a fine idea - it's in the US constitution, for example. It just needs rebalancing.

I'm arguing that there is one profession: information distribution, and multiple ways to do it. Some of them involve creating your own content, some do not.

I am also not arguing against all instances of government created markets, by the way. Just saying that failure to be able to make a living in a way that people used to does not by definition necessitate being saved by the government.

> I'm arguing that there is one profession: information distribution

To me that is confusing, because in my mind distribution is a different act than creation of information goods.

Movie theaters, dvd's, netflix.... those are distribution, and I don't care too much if new ones arise and old ones go away. But I enjoy a movie once in a while, and would be sad to live in a world where it is no longer possible to do anything but the cheapest of indy efforts.

I am a UX guy. I care mostly about the user's perspective. From the user's perspective the end content is what ultimately matters. It doesn't matter who makes it. I think there's an argument to be made that the well could dry up, but I don't think it's a well substantiated one.

> I think there's an argument to be made that the well could dry up, but I don't think it's a well substantiated one.

There may not be proof either way, but if people do not have to pay for information goods, it only stands to reason that there will be less of them produced. Certainly, they won't go away entirely, but why would anyone produce a movie like Avatar if there is no legal way they can get paid for it?

> You could always give performances and charge for those!

So, software as a service? It appears we've been heading that way for a while.

> Joking aside, I think that IP is and should remain a messy compromise. There are no easy answers. Were it to cease to exist completely, it would reduce the incentives for producers, and thus consumers would be worse off too because they would have less software, books, movies and music to enjoy.

I'm not sure we'd see less content, but less financially motivated content. Keep in mind, copyright is not the only way to subsidize content creation.

New music genres and artists are giving away their music online today -- and not just some of them. I'd say most new electronic music winds up on Soundcloud from the artists themselves. RIAA has a choke-hold on Pop music and that's it, but given the nature of Pop music, that's unsurprising.

It would be impractical to expect artists to give away their content with nothing in return... so create a business model that relies on payment before you produce the content rather than after you share it.

Copyright will die a slow and painful death, whether or not it is a compromise by today's standards. What are you going to do when I can put every HD movie ever created on my hard-disk? Enforcement isn't a gradient, it either largely works or largely doesn't.

> less financially motivated content.

'Financially motivated' means: it pays the bills, puts food on the table, and gives me a place to live. If someone can't do that as a producer of information goods, they'll have to do something else, and therefore produce less, leaving consumers worse off.

It's worth pointing out that a significant part of the software industry has adapted to providing services instead of licences to their software.

The argument isn't as much about what's morally right, but what's economically practical. It's really hard to control the flow of information, including music and software.

Exactly, we have evolved and adapted to the internet. Which is exactly what we're asking the entertainment industry to do.

It would only be an hypocrisy if hackers were trying to push laws to protect software from being pirated. But you don't, quite the opposite actually, I'd guess most of us would rather see less IP enforcement, than otherwise. Personally, I'd invite you to share my creation as much as you can, please do so.

Not hackers; their musical counterparts wouldn't be the RIAA and such, but rather the people noodling on music in the spare time for the fun of it.

Look to large corporations: Apple, Microsoft, Yahoo, &c using patents offensively and defensively, instead.

What would an analogous solution form Music look like?

Labels which only offer their music (song catalogs) as a service, thus requiring a listener to subscribe to their service (and multiple services if one enjoyed music from artists belonging to different labels)?

Maybe someone could offer a platform for musicians to undercut (cut-out) the label middle-person. One would still likely see multiple direct to consumer music platforms --many requiring some kind of subscription service?

There could be a free service which would be subsidized or supported via advertising.

The solutions above could all be undermined by people recording the music and saving them locally.

One can't easily "save" Google services locally and get the same benefit out of them. I mean, one could make a good effort, but the result would require much effort that is beyond the tolerance of most people, I think.

You make these suggestions with the assumption that recordings provide an necessary component of the music industry.

Recordings have only existed for barely more than a century. Musical performers survived long before and will survive long after. Profiting from recordings is an aberration rather than the norm. The industry can reorient itself back to live performances.

Movies, as well, make substantial revenue via theaters. Home video is not required to sustain the industry, but they would have you believe the movie industry prior to the VCR could not exist again. (even though at the time they claimed the VCR itself would destroy the movie industry).

Isn't this backwards in some sense?

It used to be the case that the cost of listening to recorded music was a combination of creation and distribution. The cost of distributions is now effectively zero, and so therefore, society should now no longer listen to recorded music, because it's not possible to cover the cost of creation with the profits from distribution?

As the combined cost of creation and distribution is lowered, I'd want society to have more creation and distribution.

I don't believe I said anything about recordings disappearing, but if I was unclear please correct me. I take issue with the idea that recordings can continue to be a revenue stream in the face of changing technology.

If the media industry needs laws and international accords to protect their distribution system at the expense of personal freedom and national sovereignty than I believe it is the musicians who should change and not society.

>Recordings have only existed for barely more than a century. Musical performers survived long before and will survive long after.

True. But that's saying the future is the past? That's not so much transformation, as devolution. I was trying to think how they would transform into the future, not "can they survive by looking back".

Live performances, I think, would create a strange situation where the listening was scheduled to the artist's performance, rather than being on my (on-demand) schedule. Even if I could schedule it to fit into my time, what about someone else in a different time zone. What woud I do about curating songs into a moody sequence?

My take on the musical profession, before the advent of recordings was that it was more a matter of survival, for most musicians --even good ones. That is to say, they barely survived on their musical income. That's not unlike lots of amateur musicians, but the difference is there was no "up" unless you were a virtuoso performing for a royal, or something similar. I would like for musicians to still be able to make a decent living from their art. Not necessarily millionaires (alto not against that).

>True. But that's saying the future is the past? That's not so much transformation, as devolution. I was trying to think how they would transform into the future, not "can they survive by looking back".

Do you have a reason for not looking back? I don't find platitudes such as "devolution" to be in any way compelling to discount going to what worked.

>Live performances, I think, would create a strange situation where the listening was scheduled to the artist's performance, rather than being on my (on-demand) schedule. Even if I could schedule it to fit into my time, what about someone else in a different time zone. What woud I do about curating songs into a moody sequence?

I did not intend to say that music recordings would disappear. Only that the revenue stream would shift from selling recordings to live performances. A more easily enforcible way to make money without imposing draconian changes to law to force payments out of citizens.

>My take on the musical profession, before the advent of recordings was that it was more a matter of survival, for most musicians --even good ones. That is to say, they barely survived on their musical income.

This is actually how most of humanity currently exists. The artists who sell recordings are, again, an aberration. Think Pink Floyd, The Beatles, Michael Jackson, or Jimi Hendrix still making money decades after any work stopped. I think it is reasonable to think performers move from a career of capital to one of labor. Actually the inverse. I find it unreasonable for laws to change to coddle the music industry by letting them create ethereal capital rather than work by actually performing music.

>That's not unlike lots of amateur musicians, but the difference is there was no "up" unless you were a virtuoso performing for a royal, or something similar. I would like for musicians to still be able to make a decent living from their art. Not necessarily millionaires (alto not against that).

I don't see why you think performing is a way in which musicians can't make a decent living.

>Do you have a reason for not looking back? I don't find platitudes such as "devolution" to be in any way compelling to discount going to what worked.

Nothing concrete. But here are my thoughts. I don't think artists nor people who enjoy music would be easily convinced of having to enjoy music the way people used to over a century ago. No time shifting (for listening); Relatively low income (for the artists). In other words the solution to the problem imposes greater problems (in my view) than it solves.

>I don't see why you think performing is a way in which musicians can't make a decent living.

Beside superbands, how would unknown artists develop a following without the groundswell usually provided by broadcast media? I'm sure Byonce, U2, Madonna, Springsteen and Bieber would keep doing well in a concert only economy. how would unknown bands develop that following if there is no way to sample them before going to a concert? It's not as if music is the only entertainment in town (as may have been the case 100+ years ago).

You are assuming that it's possible to turn back the clock; I seriously doubt that.

Profiting from recording has become the norm. The industry is simply not going back to live performances as the primary means of enjoying music. People will not be dragged kicking and screaming from their iPods & iPhones.

Likewise, I suspect that attempting to make money solely from movie theaters would end up with a crippled industry. There's a reason that DVDs were the fastest growing recording media in history: when you can get all the benefits of a theater experience (many of us don't need a 100' screen to be happy) at home without any of the drawbacks, well, it's gonna be hard to keep 'em down on the farm after they've seen Paree.

Just because something is the norm doesn't mean it can't change. It changed before. It will change again. Either we will give up freedom to protect media distribution in an effort to subsidize the media industry, or the media industry will change.

Theaters in the US took in $10 billion[1] in 2011. Theaters are hardly on their last leg. If studios can't survive on 16 million in revenue (on average) we really shouldn't be modifying laws in the US and internationally at the cost of freedom to help those inefficient studios stay in business.

[1] http://boxofficemojo.com/yearly/chart/?yr=2011

I'm not arguing that it can't or won't change; I'm arguing that it won't change back to what it was before.

What would an analogous solution form Music look like?

Concerts.

If creating the recording becomes cheap enough (and if you're skilled you can make an (almost) professional level recording these days with a few rental mic's and pre-amps and a laptop. Then perhaps we could reach a point where bands would be willing to give away the recordings if they make it back up on the road.

Hardest part here is that the labels also handle all the upfront costs of marketing a band and its music. This is the area where I'd try to innovate if I were a music startup.

That's roughly spotify's business model, isn't it?

For movies, I think that an ad supported channel could work, especially if it would use the same level of personalization as online advertising. Even cooler would be personalized product placement, but that's a 'tick' more involved.

>That's roughly spotify's business model, isn't it?

Yes. Would we (everyone/most) be comfortable with that model being the predominant, perhaps only model? Perhaps. Not sure.

Yes, SaaS is an end-run around the GPL, Google were the first to really exploit this on a grand scale.

See the major difference there is that engineers have recognized this and built a moat around their inventions. You don't just provide some bytes that run on someone's computer, you provide a service that can't be duplicated.

Now ask yourself why it is that engineers adjusted but media has not. What are their motivations?

Maybe because only engineers have the luxury of providing a service that can't be duplicated? I have trouble imagining viable SaaS equivalents for media. What would a, say, Books-as-a-Service look like?

You can get 1 free Kindle download a month with Amazon prime. However, I think Porn is leading the way on that one. There are plenty of sites that give you access to a growing collection of stories for a monthly price, and one that allows free access to it's collection but charges for a better search and bookmarking system.

Which I guess boils down to either the patronage system, where you can sponsors people to write (ex: epic poetry) or the organizational system where you can distribute free content and then give kickback to the most popular authors like many blogging systems do.

PS: Batoto.com is an odd mix as it returns money to people who translate works but not the original authors. Sort of like a pirates auction house. The advantage for users being a nice interface and rapid updates.

Except now the patronage system can be easily distributed instead of relying on rich people. I doubt it'll ever fund an "Avatar", but 2.9 million dollars is nothing to sneeze at: http://www.kickstarter.com/projects/66710809/double-fine-adv...

I'm being very radical here, but the thought of the only books being published being by people who actually want to be read rather than waant to be rich is not a problem for me. For craftsmen whose primary goal isn't to communicate or entertain, I'd suggest patrons. I'd certainly sponsor about 1/50 of a writer spread across a curated pool. I'd probably sponsor about 1/200 of a curator. They wouldn't have to even send me the books, I'd just buy them from the printer with the best quality to cost ratio.

Music-as-a-Service has been around as long as music.

I look forward to all the source code and databases of the world to be made freely available to everyone.

Of course engineers rely on intellectual property as much as anyone does.

IP here means "IP laws". Access to the source is a completely different issue. You don't need IP laws to protect your source: just don't distribute it.

So it is OK for your employees (that you share your code and data with) to distribute it among third parties as they please?

Employees are bound by contract. You don't need IP laws to prohibit them from sharing the code.

What if your code gets "snuck out", and you don't know who did it. Should it still be free to copy and distribute at that point?

Yes. The question is: if the code gets snuck out, do you really think IP laws will actually prevent people from distributing it?

Yeah, it's certainly working fine:

https://thepiratebay.se/torrent/7087027/Symantec_Norton_Anti...

https://thepiratebay.se/torrent/4149808/Windows_NT4_source_c...

https://thepiratebay.se/torrent/3497574/Windows_2000_source_...

"That which is not seen" is a great deal of other software that otherwise might be out there were there not laws against that sort of thing.

I'd like to see some evidence of that, please.

So if someone did get access to your source and data, by whatever means, it'd be fine to spread it at will?

And for that matter, why should there be information security laws if there's no intellectual property?

So if someone did get access to your source and data, by whatever means, it'd be fine to spread it at will?

Not if they're bound by contract OR if they conspired with someone who was. In other cases, yes. But what we think of whether it's "fine" or not is irrelevant: it'll happen anyway (try looking for Norton source code on TPB). What it matters is whether we want to fund laws to fight windmills.

And for that matter, why should there be information security laws if there's no intellectual property?

There are many laws under that "banner". What laws do you mean?

If you mean Data Protection, those are essentially mandatory contract terms. Regardless of whether they should exist or not, they're very different, because you're only bound by them if you enter in a contract (implied or not) with the person or company providing you with the data.

Whether that data is "property" or not is irrelevant.

What about violating software licenses? I guess the restrictions of the GPL are moot then. I can just do whatever I want as I'm really not depriving anyone of anything they didn't already have.

Yes, the restrictions of the GPL would be moot if there were no copyright.

Treating source code as intellectual property is exactly what spawned GPL in the first place, as it is a "hack" that exploits the nature of software licensing.

Can you reiterate your point?

That's not true. The GPL wouldn't be unnecessary, it would cease to work. The GPL relies just as much on copyright laws to work as does proprietary software. Something that is disallowed with the GPL is taking the source code, making a modification, compiling it, and then only distributing the binary. There is nothing that prevents this but copyright law.

A correct statement would be that the BSD or MIT licence would be unnecessary (except for their clauses that you have to include the copyright notice with your modified program).

It was a bit of a rambling point, but relates to the double-standard I see often applied. Terms like "piracy" and "stealing" aren't applicable because there's no physical good (although there's hardly any ambiguity over what's being discussed) and no one is being deprived of anything. But, hey, we need the GPL to ensure everyone shares everything and we need to go after those that violate the GPL. Although, quite arguably, the same logic could be applied: it's not stealing, I'm not taking anything you don't already have, and I don't need to share because I wasn't going to anyway, but maybe my friend will hear about it and contribute a patch to make your project better! [Please forgive the liberal use of pronouns.]

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

They're exactly the same. There's a reason the industry is moving towards SaaS and building businesses atop FOSS, rather than trying to build a better dongle.

Observe the current state (near-non-existence) of the compiler market. This is not a bad thing: gcc is not the best compiler that humanity could produce, but we wouldn't want to trade it for a really expensive but marginally better one.

Similarly, games are pirated a lot; but is a world with lots of free-to-play games really worse than a world in which the games are (as now) largely too expensive (per hour) for the target audience?

There will always be money to be made in writing custom in-house software, but lots of software is becoming cheaper/free. This is mostly a good thing.

I don't know that that's a great analogy - there is a compiler market but it's not necessarily one that people notice.

Microsoft sells it's compilers in the form of Visual Studio. Intel sells a variety of C++ and Fortran compilers. There's GCC, there's LLVM/Clang.

They all compete against each other in a variety of ways, thus there is a market, albeit one in which the currency is to extents eyeballs as opposed to money. (in the sense that if you're in an area where a for-money compiler is required, the cost of it is likely not an issue - so it comes down to which compiler do your devs want to be using)

In my opinion, a world with lots of free games is worse than a world with a few expensive games. I see at being almost analogous to mass-production vs artisan craftsmanship. I'd rather enjoy the fruit of a craftsman's labour than I would gorge myself on the cheap, cheerful and unpolished wares of the assembly line.

> I'd rather enjoy the fruit of a craftsman's labour than I would gorge myself on the cheap, cheerful and unpolished wares of the assembly line.

That's the wrong way 'round, from my perspective. The "few, expensive" games we have are bland blockbuster genre-stuffers created by committee. The "lots of free games" we're heading toward are tiny, polished artifacts of a single indie developer's labor, where the value in them comes from laser-focus on a single innovative gameplay mechanic, rather than a multi-million-dollar art pipeline. The latter sound much more like the "artisans" to me.

I've heard some of my friends in the gaming industry talk about a sea change towards free-to-play games, beyond the MMO genre. Monetization schemes include advertising, access to better/faster servers, in-game purchases of items/adornments, etc. You may get your wish.

The compiler market is interesting, when I look back thirty years to when I started programming there were dozens of small companies providing various languages and tools. There are a few now but not on the same scale.

This probably is a good thing, it is possible to get started now with no expenditure beyond the hardware whereas when I started I was limited by what I could afford.

This is also handy for hardware companies. It seems like almost every embedded processor comes standard with a GCC-based toolchain, so they're forced to compete on things more interesting than having good compiler support.

I've always worried about the same thing.

In a world where software and easy-to-copy "bits" can not be owned, would a viable business model be to hack into Facebook, steal the code and the user database then set up my own social networking site using their IP?

I mean, if they can't own bits then I haven't really stolen anything by hacking into their system. Maybe I'd need to pay them back for the cost of the download?

Just wondering.

Sorry, I don't see where PG said that songs weren't property at all.

He's saying the definition of that particular property is changing, but that doesn't mean it is non-existent.

With software, music, movies and books, what's changing is the notion that the copying of a piece of work is the creation of new property, hence deserving of the unit cost of all the work that went into the creation of the original material.

It's not that a new song belongs to everyone by default, it's that the math is skewed.

Software developers have figured this out already - which is why you can buy an app for $.99 instantly.

The producers of other material haven't adjusted. Although unlike pg I don't think it has anything to do with bonuses, and everything to do with the fact that the entire production-enabling industry has become obsolete; especially for music, but soon enough for movies as well and books as well.

The content producer doesn't need a gatekeeper to help create physical copies his book or song, then distribute these to selected merchants around the world.

He needs an editor and a marketing firm to get the word out, and that's it.

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

Of course they're analogous. I think pg is fine with disposing of the traditional model of "selling software." As he pointed out in his recent Pycon keynote, Amazon AWS is a spectacular example of profitable commercial software, but it doesn't follow that model of "selling software."

There are a bunch of minor differences between software and music that make software more viable as a business when using the same definition of property. Software companies often sell services that are wholly based on software, but it's the service that has value. Customized software such as an internal accounting system is worth more to the purchaser and often not worth anything to the world at large. It's also easier to use the old definition of property to sell because it's easier to prevent unauthorized users from using software.

That sounds like a straw man. Who is advocating for getting rid of copyright on music AND software?

And just because it costs money to make certain properties, like the smells coming from a restaurant, should we make laws that twist common sense and decency to protect profits derived from these properties?

I don't think anyone is saying get rid of copyright, but there certainly are a number of people who believe music should be available in digital form, for free (i.e. since I cannot but it without DRM than I am justified getting it from a torrent, etc.). Whether that is right or not, it certainly seems to be part of our current online culture.

Copyright law should already protect "copies" of these things, and really has no regard to profit (how you profit from your copyright is up to you).

I don't think anyone is saying get rid of copyright

Sorry, but many people are. Personally, I'd like to at least try it too.

I am adocating for getting rid of copyroght on music AND software.

That's because I am intellectually consistent... which was the original point.

pg's intellectual inconsistency gives him power in the world of hucksters and thieves, but no one who takes these issues seriously simulataneously takes his self-serving screeds seriously.

what about copyright on ebooks? how would that work since a book can be published in both a digital and a physical format?

To generalize what you are saying, society will always consider those things as "property" that add value. Songs, movies, software all add value (for some definition of value) to their users.

If, hypothetically, all software is open source, but differs in its data input, then the data will be considered "property". It is already happening with social networking sites, wherein there is reluctance to share in an open way user data, comments, photos, "likes" etc.

That being said, I think content, being a product of human creativity and imagination, will always have some value in the "property" sense.

You make a valid point, but the value in software is most often personalized to the user. Music and movies don't have that same limitation. If the movie were a 'choose your own adventure', and the user had to use a specific platform, then the software is no longer a smell that anybody can smell, it is a specific targeted smell.

I've been thinking about this quite a bit lately as I'm working with a generic product which is freely available in mass, how do you charge for that? By making it more valuable to the user at the time of use is the best that I've come up with so far.

The nature of property is defined by the extent and limitations of rights. But the shape of those boundaries, and the things that are allowed to be property, changes depending on society, culture, and technology.

Can you own a single word, for example (like, say, sklartch)? Not as a trademark but actually owning the word, owning the right to let people use it, copy it, etc. Of course you can't, because copying a word is trivial. You cannot stop someone from memorizing and writing out a short series of letters, either with a keyboard or with a pen and paper. It is not within anyone's power to restrict or control the writing of the word "sklartch".

And, of course, we accept intuitively that you can't own a word, or a smell, because we have already internalized that it is impossible and thus ridiculous to do so.

We are in the midst of a technological revolution that is rapidly making it ridiculous to attempt to control the copying of digital goods. It is no more possible to control the copying of a movie, song, or book than it is to control the copying of the word sklartch. Does that mean that such things can no longer be property? Perhaps.

It can be disconcerting to traverse the boundary where something goes from being property to not, because of course we have come to believe that obtaining something that is defined as property without paying for it is stealing. But if you were to write the word sklartch on a piece of paper would you feel like a thief? Would you feel like a thief if you intentionally passed by a nearby restaurant because it smells good? Would you feel like a thief if you read a book in a library? Would you feel like a thief if you listened to a song on the radio and turned the radio off as a commercial came on?

Obviously there is additional complexity involved, but this is still a very important part of the discussion about the future of art and its relationship to law and technology.

Edit: how do you make money out of something that can't be property? Well, I put a lot of effort into inventing the word "sklartch" how do I make money off of that? To some degree, this changes what people do and what people make. You don't see people making careers out of inventing new words (except Dr. Seuss). But there are often other business models that still work. Radio/used book stores/libraries haven't destroyed art yet, perhaps file sharing won't either. One strong possibility, that is already a reality for some, is that makers acquire a reputation via their early works and then use a platform like kickstarter to earn money preemptively on their next work. In combination with "pay what you want" models, I think it might be workable.

Also, keep in mind that we are currently entirely blind to all of the activities that would benefit society greatly (including creation of art) but which are very uncommon because it's not possible to make a living from them.

Are "private" bits special and privileged still? If one user entrusts another with a risque digital picture but that digital picture is now distributed to a million third parties, did any violation occur?

If individuals are allowed special protection for that, why can't I be afforded protection on my computer program?

If there are still to be secrets where the access is legally controlled by an "owner" due to privacy or trade secrets, why should this ownership not extend to any sort of digital work?

I'm only aware of laws that dictate the effort put into obtaining private information, not the knowledge or dissemination of it. I can't steal your phone and grab the picture, but if you give it to me under no certain terms, I can do what I want. Where is this mystical protection you speak of?

Privacy and property are not the same thing.

If Rick Santorum has genital warts, as an example, then he doesn't own the phrase "Rick Santorum has genital warts" nor does it become property even though using that phrase could be a violation of his privacy and could even violate certain laws (such as HIPAA).

Software, like music, is a performance art. People will always pay for you to make something new. If I solve a problem you have, you will be willing to pay me for the benefit of having it fixed, even if it soon solves the same problem for other people, too. If every single piece of software ever written was open-sourced, there would still be more software that needed to be written.

We already treat smells as extremely valuable on earth.

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

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.

"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.

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.

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.

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.

Does anateus have a monopoly on paulgraham.com updates?

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.

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.

Tough crowd.

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