March 2012As a child I read a book of stories about a famous judge in eighteenthcentury Japan called Ooka Tadasuke. One of the cases he decidedwas brought by the owner of a food shop. A poor student who couldafford only rice was eating his rice while enjoying the deliciouscooking smells coming from the food shop. The owner wanted thestudent to pay for the smells he was enjoying.The student wasstealing his smells!This story often comes to mind when I hear the RIAA and MPAA accusingpeople of stealing music and movies.It sounds ridiculous to us to treat smells as property. But I canimagine scenarios in which one could charge for smells. Imaginewe were living on a moon base where we had to buy air by theliter. I could imagine air suppliers adding scents at an extracharge.The reason it seems ridiculous to us to treat smells as propertyis that it wouldn't work to. It would work on a moon base, though.What counts as property depends on what works to treat as property.And that not only can change, but has changed. Humans may always(for some definition of human and always) have treated small itemscarried on one's person as property. But hunter gatherers didn'ttreat land, for example, as property in the way we do.[1]The reason so many people think of property as having a singleunchanging definition is that its definition changes very slowly.[2]But we are in the midst of such a change now. The recordlabels and movie studios used to distribute what they made like airshipped through tubes on a moon base. But with the arrival ofnetworks, it's as if we've moved to a planet with a breathableatmosphere. Data moves like smells now. And through a combinationof wishful thinking and short-term greed, the labels and studioshave put themselves in the position of the food shop owner, accusingus all of stealing their smells.(The reason I say short-term greed is that the underlying problemwith the labels and studios is that the people who run them aredriven by bonuses rather than equity. If they were driven by equitythey'd be looking for ways to take advantage of technological changeinstead of fighting it. But building new things takes too long.Their bonuses depend on this year's revenues, and the best way toincrease those is to extract more money from stuff they do already.)So what does this mean? Should people not be able to charge forcontent? There's not a single yes or no answer to that question.People should be able to charge for content when it works to chargefor content.But by "works" I mean something more subtle than "when they can getaway with it." I mean when people can charge for content withoutwarping society in order to do it. After all, the companies sellingsmells on the moon base could continue to sell them on the Earth,if they lobbied successfully for laws requiring us all to continueto breathe through tubes down here too, even though we no longerneeded to.The crazy legal measures that the labels and studios have beentaking have a lot of that flavor. Newspapers and magazines arejust as screwed, but they are at least declining gracefully. TheRIAA and MPAA would make us breathe through tubes if they could.Ultimately it comes down to common sense. When you're abusing thelegal system by trying to use mass lawsuits against randomly chosenpeople as a form of exemplary punishment, or lobbying for lawsthat would break the Internet if they passed, that's ipso factoevidence you're using a definition of property that doesn't work.This is where it's helpful to have working democracies and multiplesovereign countries. If the world had a single, autocratic government,the labels and studios could buy laws making the definition ofproperty be whatever they wanted. But fortunately there are stillsome countries that are not copyright colonies of the US, and evenin the US, politiciansstill seem to be afraid of actual voters, in sufficient numbers.[3]The people running the US may not like it when voters or othercountries refuse to bend to their will, but ultimately it's in allour interest that there's not a single point of attack for peopletrying to warp the law to serve their own purposes. Private propertyis an extremely useful idea — arguably one of our greatest inventions.So far, each new definition of it has brought us increasing materialwealth.[4]It seems reasonable to suppose the newest one willtoo. It would be a disaster if we all had to keep running anobsolete version just because a few powerful people were too lazyto upgrade.Notes[1]If you want to learn more about hunter gatherers I stronglyrecommend Elizabeth Marshall Thomas's TheHarmless People and TheOld Way.[2]Change in the definition of property is driven mostly bytechnological progress, however, and since technological progressis accelerating, so presumably will the rate of change in thedefinition of property. Which means it's all the more importantfor societies to be able to respond gracefully to such changes,because they will come at an ever increasing rate.[3]As far as I know, the term "copyright colony" was first usedby MylesPeterson.[4]The state of technology isn't simply a function ofthe definition of property. They each constrain the other. Butthat being so, you can't mess with the definition of property withoutaffecting (and probably harming) the state of technology. Thehistory of the USSR offers a vivid illustration of that.Thanks to Sam Altman and Geoff Ralston for reading draftsof this.
