Transfer Payments

James V. DeLong, a senior fellow at the Competitive Enterprise Institute, likens online music swappers to "hordes of barbarians loot[ing] civilization." He credits the U.S. Court of Appeals for the 9th Circuit with "pushing the barbarians back beyond the frontier" by ordering Napster to prevent its users from exchanging copyrighted material.

Like other defenders of copyright law, DeLong sees the struggle between the recording industry and Napster in moral as well as legal terms. According to this view, people who use Napster to get music for free, thereby depriving its creators of income they otherwise would receive, are stealing, pure and simple.

Not surprisingly, Napster users don't see it that way. As paraphrased by DeLong, their arguments sound like self-serving rationalizations: "CDs cost too much." "Record companies rip off artists." "We made the groups famous, so we have a right to their music." And so on.

But there is a principled basis for viewing music swapping as something other than theft. I've never used Napster, and my livelihood as a journalist depends partly on copyrights. Still, it seems to me that critics of intellectual property law have a point when they question the assumption that music can be owned.

Clearly, you can own a CD, and you can own the hard drive on which you've stored MP3 files of songs from that CD. But that doesn't mean you own the music itself, which is essentially a pattern of information.

In saying they own the music, the record companies are asserting their right to tell you how you may use your CD and your hard drive. They are telling you not to transfer certain data to other people, thereby forbidding you from typing certain things on your computer keyboard.

The intrusiveness of such demands is especially striking when we're talking about people using home computers. But in principle, the crackdown on Napster users is no different from the restrictions that have long been imposed by copyrights and other forms of intellectual property.

I can own a Stephen King novel, and I can own a copier. But intellectual property law prohibits me from using these two possessions in particular ways.

"By merely authoring an original expression of ideas," observes patent attorney N. Stephan Kinsella, "by merely thinking of and recording some original pattern of information, the author instantly, magically becomes a partial owner of others' property. He has some say over how third parties can use their property."

Another reason intellectual property laws seem suspect is the arbitrariness of their coverage. They apply to books, music, movies, and kitchen implements, for example, but not recipes, dress designs, scientific theories, or mathematical algorithms.

If the justification for copyrights and patents is that the artist or inventor is morally entitled to control his creation and reap its benefits, it's hard to see why some intellectual products get no protection at all. Usually the distinction is justified on utilitarian grounds: Recognizing ownership of scientific theories would be impractical and intellectually stifling.

There's a similar shift in argument when skeptics ask why copyrights and patents, unlike ownership of tangible property, last only for a specified number of years. We're told that rewarding artists and inventors with monopoly profits will, on balance, encourage innovation, but only if the monopoly is not maintained for too long.

If providing an incentive is the aim, however, it makes little sense to extend copyright protection beyond the artist's death, especially if the term is lengthened posthumously. Walt Disney won't be creating any more cartoons, and George Gershwin won't be writing any more songs, but their heirs are still collecting license fees and royalties.

Intellectual property is a relatively recent invention (the first copyright laws were passed in the 18th century), so it clearly is not a prerequisite for great art or useful inventions. But there are serious questions about what the world would look like without it–in particular, how information-centered businesses such as software and entertainment would operate.

With data becoming easier to copy and transfer, businesses will have to address those questions even if there's no formal change in the law. To fend off competition from cheap knockoffs, they will use a combination of tactics, including contracts, service promises, better packaging, and technological safeguards. Maybe even lower prices.

Depending upon your view of intellectual property, then, the complaint from Napster fans that "CDs cost too much" may be more than a lame excuse.