L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 264, March 21, 2004
"Mind Your Own Damned Business"
Law Versus Reality
Exclusive to TLE
It's not often I'm called a communist. "Right-wing," "fascist," and "pacifist" are insults I'm more familiar with though how someone could regard a gun-toting individualist as any of these is a mystery to me.
Nevertheless, I was called an "information communist" by no less than three individuals during the last week, all on the basis of my statement that there is no such thing as "intellectual property."
Allow me to reiterate my basic argument:
The purpose of any storage media (be it books, records, CDs, videotapes, stone tablets, or cave walls) is to augment the imperfect memory of human beings. The intent is either to store or to transmit information. If all human beings had an eidetic memory, storage medium would be utterly unnecessary.
For purposes of example, I'll continue with multiple Grammy-award-winning vocalist Shania Twain, whose music I really enjoy. Modern law holds that Shania owns the title track of her newest CD, "Up!" regardless of its storage medium. It doesn't matter if the song is spoken, sung, written, recorded on vinyl or magnetic tape, digitized to a bitstream on CD or MP3, or any other format. Regardless of medium, Shania owns "Up!"
Since that is that case, the only logical conclusion is that Shania owns my memory of the song. If the medium is irrelevant, then by logical extension, the medium of my brain is also irrelevant. The portability of the storage medium isn't an issue, nor is the fact that my brain cannot be replicated like an MP3.
At least, not yet. Though you can be sure that when the technology becomes available to record thoughts, memories, and feelings, government will decree that memories of Shania's performance are her sole property.
The distinction of the storage medium of my brain being unique from other storage medium is totally arbitrary and illogical. If Shania owns "Up! regardless of medium, then she MUST own my memories of the song.
Clearly, the concept of sole ownership of ideas collapses when the argument is taken to its logical extreme. If one objects to the notion of Shania owning the memory of the song in my brain, then logically one must object to the notion that she owns the song on other media that I also own, such as CD or MP3.
Shania Twain released three separate CDs with different mixes of her recent "Up!" songs: Country, Pop, and World. They're the same songs with different mixes for different markets.
In North America, only the Country and Pop versions were sold, and these were the ones I purchased in a local music store. I really enjoyed them. There literally isn't a track that I don't like, and I outright love most of them. It's the only CD I've not mastered myself that I can listen to from beginning to end without skipping tracks.
There are a whopping 28 tracks on two CDs, for slightly over twenty dollars. I don't know of another singer who's providing that kind of volume and quality of work at that price.
As much as I enjoyed the Country and Pop mixes, I decided to get the World version. However, as it was a European import, it was very expensive. I wasn't certain I wanted to pay the money before having even heard the mixes.
Enter Kazaa, the incredibly popular peer-to-peer file-sharing service. I've used this service to find old TV shows, music, and (I admit it) porn.
One word of warning: if you're going to use the service, do not use the client from Kazaa.com it's full of adware and spyware. Get Kazaa Lite K++ instead. I can't recommend a Linux client as of yet.
Using my Kazaa client, I ultimately downloaded all 19 tracks of the world CD at no cost to me beyond my Internet connectivity. Excitedly, I fired up XMMS.
I was shocked and disappointed. The Country and Pop versions were worth every penny I paid for them, but the World version really SUCKS a word I almost never use in print. They suck BADLY. They're horrible. You really can't listen to them. They're mind-bogglingly and staggeringly revolting.
If you've ever heard "Up!" on the radio or watched the video on VH1, imagine that it was performed to a Reggae beat!
The other songs with the possible exception of "Forever And For Always" (apparently not even an awful mix can destroy a song that good) are even worse. I have no idea who thought this was a good idea, but I'm very grateful that I didn't spend my hard-earned cash on an expensive import.
People have a difficult time with this issue because they're so used to being told by socialist media outlets that they otherwise shun that "Up!" is Shania's intellectual property, and that only she has the right to dispose of it.
Forget for a moment that copyright law exists divest yourself of the idea that since government defines a right, it must exist. Just sit for a moment and ask yourself: "How does it initiate force against Shania Twain for Bill Stone to listen to MP3s of her songs that he downloaded from a file-sharing service as opposed to paying for a CD in the store?"
The impact on Shania of my doing so is: it reduces her income and consequently makes her upset. That is all.
Negatively impacting Shania's income does not initiate force against her all businesses routinely negatively impact each others' income. Making her unhappy does not initiate force against her all businesses routinely make each others' members unhappy.
If one further examines the idea of "intellectual property" and asks, "Could this concept exist without government to enforce it?" The answer is, "No, it couldn't."
Functionally, it doesn't exist even WITH government to enforce it, something the very existence of the Internet proves. Show me something you think is intellectual property, and I'll show you ten Web sites devoted to it.
Other property rights DO exist in absence of government. You can buy a diamond, put it in your pocket, and say, "This is mine, not yours." If I then initiate force against you by taking the diamond against your will, you can shoot me, cut me open, and take your property back.
You can't do that with ideas. The best you can do is initiate force against others by killing them in order to keep the information secret.
Not only is there no initiation of force against Shania to download and listen to her songs, there is actually a case to be made that she would be initiating force against me if she attempted to prosecute me for doing so.
Firstly, if the socialist argument is correct and medium is irrelevant to the status of ownership, Shania owns the memory of her song in my mind. This is a clear Initiation of Force. One of the underlying tenets of the ZAP is that homo sapiens is the most territorial animal on the planet, and that territory starts first and foremost with our minds and bodies. For Shania to claim ownership of my mind would initiate force against me.
Secondly, she would be delegating initiation of force to government, since this is clearly not an initiation of force that she could perpetrate on a wide scale without government to do her dirty work for her.
While it is not only not an initiation of force for two individuals to be in possession of the same information, treating information as property defies all physical logic:
What is the nature of property?
Any property that appears to have a one-to-many relationship is one of two things:
Property whose "owners" are PRETENDING they all own it, or property owned by no one.
Property jointly owned in marriage, "public" property, and "community" property all collapse without an external institution to force the one-to-many relationship. If a married couple divorces, the one-to-one relationship of property to owner becomes quite obvious, for example the couple was actually simply PRETENDING they both owned it. Similarly, if a government falls, the illusory nature of "public" and "community" property becomes readily apparent.
Ideas and information do not share the basic attributes of property. They do not have dimensions. They are not unique. They have a one-to-many relationship to those who are aware of the information.
Property is inherently unique. Information is not. Therefore the analogy of information as property simply doesn't hold up.
There are three types of information: known, unknown, and secret. Unknown information can be discovered, and if kept secret, it's FUNCTIONALLY your property. However, one can't stop other people from discovering that information independently. Nor do you truly have ownership of the information as soon as you tell someone else about it. You can get them to sign an NDA and seek restitution if they violate it, but FUNCTIONALLY, the information is outside of your control the moment you divulge it to another person.
This isn't even on the level of any moral issue. It is literally and technically IMPOSSIBLE for Shania to have any control over the disposition of material she makes so broadly public, and it is nothing more than cognitive dissonance to behave otherwise. Once Shania released "Up!" modern technology took over, and thousands of teenagers the world over are able to burn CDs from the MP3s they download.
Regardless of the law, she has FUNCTIONALLY given up sole ownership of her songs by virtue of singing them in public and by distributing them for sale. The only functional way for her to maintain "ownership" of songs released for public consumption is to institute a police state even worse than exists in the United States right now.
No doubt they'll ultimately get around to trying. When they do, the functional end of the United States will be reached.
One might question how an artist like Shania will continue to make money in a free society in which her work is not considered her sole property regardless of medium.
I don't claim to know precisely what the coming free society will look like. I have a lot of ideas, the most positive of which are based on libertarian science fiction author L. Neil Smith's extraordinary Galactic Confederacy series of novels.
However, one thing history teaches is that proprietary technology and information doesn't have long-term viability in the free market. The Beta videotape format and the Apple and Amiga computers, are all examples of extraordinary technology that died because it was proprietary. Open technologies create competition, and competition creates higher-quality goods and services at a lower cost.
Modern technology is forcing the entertainment industry back into reality and the free market.
In the case of CDs, I would predict that the coming free society will see a dramatic drop in price in order to compete with other technologies. We'll probably also see far more new works created, since the "shelf life" of the current one will be significantly less than we're used to. Where Shania now releases a CD every three to five years, in a free society, she may have to release new ones every six months.
Shania might add value to her songs by singing material she didn't write but that there is demand for. I have a grainy video (thank you again, Kazaa!) of a capture of some home video of Shania performing "Somewhere Out There." I would be thrilled to hear her sing this song on a CD, teamed with an extraordinary male vocalist.
Perhaps she'll add value with "collector" tracks. For example, the current release of John Williams Star Wars (the original movie, or "Episode IV" for you purists) include a "bonus track" with no less than six alternate versions of the main title music. One of them includes a mistake ten points to the first person to e-mail me which take number it is.
It would be fun to listen to flubbed takes or orchestrations Shania didn't like as much as the "official" one.
Perhaps she'll release more videos, adding value through effective marketing or special features. It would be fun to watch her recording her songs in the studio again, with mistakes and out-takes of the kinds seen in modern DVDs.
And these are just my ideas, from the armchair of someone who doesn't work in the industry. No doubt the unfettered creative power of millions of free individuals will come up with notions I'd never dream of.
What modern copyright law is attempting to protect is a flawed notion, something that modern technology makes readily apparent. There never was any intrinsic property right over known, public information: the best you can do is keep previously unknown information secret as long as possible, and exploit that information to your advantage.
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