
Defining Property - anateus
http://paulgraham.com/property.html
======
tc
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.

~~~
ender7
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.

~~~
astine
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.

~~~
philwelch
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.

~~~
Gormo
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.

~~~
philwelch
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.

~~~
Gormo
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.

~~~
philwelch
> 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.

~~~
Gormo
> 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.

~~~
philwelch
> 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.

~~~
Gormo
> 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.

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

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

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

------
ankeshk
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.)

~~~
samstave
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 :)

~~~
staunch
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/>

~~~
rubyrescue
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". :)

~~~
staunch
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 :-)

~~~
samstave
That is awesome!

Where did you host this?

Submitted to Reddit:

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

~~~
staunch
On my own server. Static file + nginx _crosses fingers_.

------
grellas
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.

~~~
InclinedPlane
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.

~~~
davidw
> 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.

------
dustingetz
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!

~~~
wtallis
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".

~~~
InclinedPlane
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.

------
Cushman
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.

~~~
nwatson
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.

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

~~~
pg
That is a really good example of such change.

------
citricsquid
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.

~~~
nirvana
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."

~~~
wtallis
"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.

~~~
citricsquid
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.

~~~
wtallis
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.

~~~
crusso
> 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?

~~~
wtallis
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.

~~~
crusso
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.

~~~
wtallis
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_.

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

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

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

This strategy involves carrots, not sticks.

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

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

~~~
marknutter
_> 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.

~~~
jonnathanson
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.

~~~
vibrunazo
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?

------
jacquesm
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.

------
gfodor
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.

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

~~~
rosser
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.

~~~
jacquesm
> 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?

~~~
rosser
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/>

~~~
jacquesm
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).

------
nextparadigms
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.

~~~
drucken
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.

~~~
JohnnyBrown
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.

------
orbitingpluto
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.

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

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

~~~
orbitingpluto
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...)

------
csallen
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.

~~~
meanguy
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.

~~~
csallen
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.

~~~
meanguy
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.

~~~
csallen
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. :)

------
chernevik
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.

------
lkbrunswick
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.

------
csomar
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).

------
drucken
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).

------
scarmig
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.

------
TheCapn
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.

~~~
rwmj
_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>

~~~
CJefferson
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.

------
pak
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.

------
EREFUNDO
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.

------
akharris
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.

~~~
eurleif
>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.

------
pizza_boy
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.

------
dkrich
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.

------
phil
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.

------
gryphon65
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.

------
brudgers
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.

------
jrs235
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.

------
astrofinch
>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.

------
shasta
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)

~~~
icebraining
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.

------
cynicalkane
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?

~~~
sliverstorm
_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".

~~~
cynicalkane
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.

~~~
sliverstorm
_freely redistribute media_

Is that really fair use?

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

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

~~~
sliverstorm
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.

------
hager
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.

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

~~~
Cushman
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.

~~~
alex_h
touché

------
drcube
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.

~~~
jrs235
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.

------
dantheman
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.

------
martythemaniak
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.

------
tnorthcutt
_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.

~~~
hengli
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.

------
tantalor
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.

~~~
mdda
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.

------
chj
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.

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

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

------
jacktoole1
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.

------
hdt
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/>

------
spravin
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).

------
jenius
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.

------
joseakle
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?

------
hrrld
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.

------
js2
_[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.

------
facundo_olano
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.

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

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

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

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

------
username3
Smells dissipate.

~~~
sold
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.

------
nirvana
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.

~~~
mmaunder
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?

~~~
wdewind
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.

~~~
sbov
You're trying to sidestep rather than confront the issue.

s/google/some company that runs on AWS

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

~~~
wdewind
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.

~~~
eli_gottlieb
>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?

~~~
wdewind
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.

------
shingen
We already treat smells as extremely valuable on earth.

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

------
J3L2404
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.

------
wissler
"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.

------
zyfo
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.

------
vacri
_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.

------
Porter_423
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.

------
llambda
Does anateus have a monopoly on paulgraham.com updates?

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

How did you guys manage to ruin that.

------
graphnical
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.

~~~
graphnical
Tough crowd.

XD

