Mr. MP3

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Leonardo Chiariglione talks about the future of digital media and its disappointing present.

"The culture of theft that turns around MP3 is detestable, and I?m very disappointed about that," he says of his creation.

But Chiariglione also makes clear that the recording industry just refuses to accept the new realities of music distribution. In fact, reading between the lines of Chiariglione's latest work with the Digital Media Project, it looks like he intends to confront the industry with a new open standard they can work with to protect their copyrights, or be steamrolled into oblivion.

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  1. Your definition of property (“…a state-granted monopoly on the right to configure material elements or bits of information in a particular pattern…”) is quite comical. Did you learn that in Anarchy 101?

    Well, for one thing, he didn’t say that property is a state-granted monopoly; he said that intellectual property is. Maybe that’s what you meant, but I thought I’d point that out. And for another thing, copyright is a state-granted monopoly. It might be a necessary monopoly — I have yet to see any alternative way of giving creators incentive to create that has any meaning in the modern world — but it is nonetheless a monopoly in the strictest sense of the word. There are natural limits to you and me both owning the same house, or car, or any other material object. But there are no natural limits to you and me owning the same information. Any limits that exist are artificial — perhaps no less necessary for being so, but still artificial.

    Notice that those on this side of the debate have a pretty cut-and-dried position — “my brain creates something, therefore I own it” — while those on the other have to write long, tortuous pieces to explain their take.

    So because the position is simple, it’s correct? I have to disagree. You may very well be right, but just saying your position is simple doesn’t mean it’s right — give some supporting evidence for it. What will happen if we assume you’re wrong, for instance? And if someone comes up with a better solution for incentivizing (God, I hate that word) creativity, would you oppose it just because it didn’t fit your conception of intellectual property?

    How anybody, libertarian or otherwise, could dispute the rightful ownership of someone’s intellectual creations is beyond me. Such ownership is a right not because it was written into law; it’s written into law because it’s a right.

    Well, for most of human history nothing that resembled copyright or patents existed. Up until the eighteenth century or so (maybe earlier, but that’s what I remember) authors had to either have a rich patron who would support them or be independently wealth. IIRC, Pope was the first author we know of who supported himself through writing (or maybe it was Johnson — I don’t have time at the moment to look it up). So there are other ways to look at intellectual property, and to encourage creativity. Are they necessarily better ways? Maybe not. But just declaring that “of course” intellectual property is the same as all other property is just begging the question. Just because that’s your gut instinct doesn’t mean it’s right. Give some supporting evidence, otherwise you’re just acting on faith.

    Not only that, but you’re just begging the question of how long intellectual property belongs to the creator. If you meant exactly what you said, then whomever Homer’s heirs are still have the right to control what is done with his epics. It’s pretty easy to say who owns Agamemnon’s mask, for example, or the Parthenon — it’s a hell of a lot harder to say who “owns” the Iliad. Does the property right die with the creator? What if the “author” is a corporation, as with the Revised Standard Version of the Bible? Does the corporation then own the work in perpetuity? Is the present system of copyrights expiring after a limited time (well, the former system) just theft, since the state is “stealing” the property from the rightful owner and putting it in the public domain? I think these are rather serious issues with looking at intellectual property as being just the same as material property.

  2. Shannon: Thanks for this concise point.

    Sam & Critic: I think what bugs the Reason-y world about digital copyright in the US is the shifting terms of the purchase contract via new law. Fair use in the analog world exisited and everyone was happy. Then the content lobbyists went to Congress and, with very little debate, essentially had fair use outlawed for the digital age.

    Doesn’t seem quite right. That is quite a bit different than holding that creative works should be free for the taking.

  3. But that leaves out the current fracas over the copyright issue with music files. Who ‘thought up’ the music? The songwriter? Well, ASCAP actually takes care of that fairly well. But then someone else records the song. But if a record company is involved, then the recording artists don’t usually own the recording. The record company does. But they didn’t do any of the ‘creating’ of the song. Their brains didn’t do anything except maybe figure out how to get people to sign contracts that really put the screws to them. Yet the way the laws are, they are the copyright holders. Yes, they have invested capital into the process (but as an aside, if the artists are contractually obligated to pay back these initial costs out of their cut of future earnings, is this really an ‘investment’ or just a strange loan?), but does that entitle them to the copyright more than the artists that recorded the song?

    Sam wrote:
    “How anybody, libertarian or otherwise, could dispute the rightful ownership of someone’s intellectual creations is beyond me. Such ownership is a right not because it was written into law; it’s written into law because it’s a right.”

    But that is what I’m disputing, WHAT IS the ‘rightful ownership’? If it was as you say, then no way would the member corporations of the RIAA ‘own’ the copyrights to the works of artists. Yet the law says that they do. And these are laws that they helped to create. The whole process has been non-intuitive to this point, so arguing that it’s just as simple as you make it out to be is rather misleading.

  4. Clearly copyright law is necessary. If I couldn’t copyright the phrase “You’re fired” would I have an incentive to come up with such a witty phrase?

    And would it be fair for me to be out in the streets starving while those who go around using my phrase don’t have to pay me a dime?

  5. Highway,

    Each artist is responsible for the contract he thinks will best serve his interests. The best-case scenario is the musician who ownes the studio, creates the recordings, controls the distribution of his music, all while maintaining his copyrights. The computer revolution has freed artists from the vice-grip of the studios of old, but artists with more modest means must (voluntarily) trade some of their inherent rights for the services of those who can help them. They can keep their copyrights, authorize limited use or sell them outright. It’s their choice.

    Jeff,

    I certainly have no problem with “fair use.” I’ve made my share of cassette copies of CDs, for my own use, but I haven’t sold them. I’ve copied television broadcasts, but I haven’t bootlegged them. I’ve even made my own music freely available on the internet as downloadable MP3s, but I haven’t surrendered the copyrights to them, nor would I hesitate to persue legal means if someone re-recorded and sold the music without my permission. Without that guarantee of ownership, how many artists will do the same?

  6. It’s worth noting that fair use can’t technically be “outlawed” because it’s not a positive right — it’s simply an available potential defense for copyright infringers. If I manufacture music media, for instance, I am not obligated to create media that can be copied.

    This isn’t just a semantics point; it’s critical to the debate. Too many people think fair use is a “right” when in fact it’s not, and it causes so many of these debates to careen wildly down the wrong paths.

  7. I’m surprised at just how fired up some people – including some libertarians – get over this issue. From my POV, I suppose it’s wrong to engage in copying of copyrighted materials, but in the vast majority of cases, it’s so far on the malum prohibitum side of the prohibitum/in se line that it’s hard to get very worked up about it. (It’s also odd how “MP3” is often used as shorthand for “illegal”, to which Chiariglione alludes.)

    I have illegal MP3s in my possession. Do I feel guilty about it? No, not really. Has the holder of the copyright suffered any harm from my downloading and possession? No. Arguably, they’ve lost potential revenue from the fact that I have not bought the album, but the problem with this view is that they suffer the same “potential loss” if I think about buying the album but decide not to. Anybody care to argue that that should be a crime?

    I have also arguably (and more convincingly) infringed upon their right to determine the disposition of their property. The problem is that we as a culture still haven’t really decided what IP “owners” “property rights” are. The model of property rights that we have for real and physical property doesn’t work very well for IP. Very few people would argue either that the natural term of copyright should be “eternal”, or that one’s ownership rights over real property should be time-limited. If you really have complete property rights over your IP, should you be allowed to decide who is able to listen or read (or not), as you may decide who is or is not allowed into your store? Should you be able to revoke these allowances at your pleasure? Should you be able to prevent people from even referring to your work?

    Some historical background might be of value – I suggest everyone read up on the history of US copyright law, particularly as it applied to sheet music.

  8. From CNET News.com, today:

    “More than 400 individuals have settled with the record industry group (RIAA), paying fines averaging near $3,000. None of the suits has come to a full trial yet.”

    Either those who have settled fully understand the
    nature of their crime, or they lack the courage
    of their convictions, if they have any.
    Would YOU settle, Kevin Carson?
    Just wondering.

  9. More:

    “On Tuesday, the mammoth chain retailer (Walmart) formally opened its online music store, from which customers can download music at 88 cents per song. That’s 10 cents less than Apple Computer charges at its iTunes music store, which has been the pacesetter on this e-commerce track.

    “The Wal-Mart service allows customers to play downloaded music on Windows PCs, to burn songs to a CD or to transfer music to portable devices. Usage rights are uniform across the company’s catalog of music. The retailer began testing the service in December and is working in partnership with Liquid Digital Media, formerly Liquid Audio.”

    Anarchist-type opponents of both Walmart and not-free MP3s: sharpen your spears.

  10. I very much doubt that we will ever be able to create a software solution to digital rights management. We face a fundamental technical limitation: Before a digital device can play any type of media, it must first copy it into a memory store. How do we enforce a traditional concept of copyright, that is the right to decide how and when a work is copied, when the digital technology requires perfect copying as first step in playing the media?

    Every time someone plays an any type of digital media, legal copy or not, file or streaming, they have already copied the data of the media. In order to pirate the media, it is then necessary only to save the copied information into another permanent store.

    The only real solution from the traditional perspective is to prevent the saving of the copied information. This can only be done reliably at the hardware level (and maybe not even then). That is why so many old media entities are pushing for a Big Brother hardware solution.

  11. It has always been an ethical – not technical – issue. I could have joined the millions in downloading MP3s, but I have chosen not to. I could copy and sell cheap digital versions of my extensive CD collection, but I choose not to. I could plagiarize an unpublished author and try to sell his words as my own, but I choose not to. Get it? Because the theft is easy and annonymous, MP3 downloaders convince themselves that no crime has been commited. It’s revealing and dismaying that so many Reason readers – and indeed the publication itself – has taken the side of the thieves.

  12. Critic,

    If you regard intellectual “property” as real property, make a case. But it’s not self-evident. Many libertarians regard copyrights and patents as state-granted monopolies (theft, in other words).

    Opponents of intellectual “property” say it cannot be property because, unlike tangible property, it is not scarce and can be possessed by an unlimited number of people simultaneously without hindering any one person’s possession.

    The only thing necessary to uphold one’s property in a tangible asset like land or movables is to maintain possession, and to resist encroachment on your space. An intellectual “property” right, on the other hand, is a state-granted monopoly on the right to configure material elements or bits of information in a particular pattern. To enforce that “right,” the state must invade the property of other people to prevent them from configuring letters or ones and zeros in the same pattern.

    If you don’t find that argument convincing, fine. Make a counter-argument. Quote Spooner or Galambos if you want. But don’t beg the question.

    Just because the state calls something “property” or a “right” doesn’t make it a right. Personally, I think the “right” to prevent others from reproducing ideas at will is as bogus as John Kerry’s “human right” of healthcare.

  13. Evidently you’re not a creator, Kevin, and, to be generous, you hold a peculiar view of property rights. If an individual does not own the tangible results of the efforts of both his mind and muscle, then he has no property rights.

    Your definition of property (“…a state-granted monopoly on the right to configure material elements or bits of information in a particular pattern…”) is quite comical. Did you learn that in Anarchy 101?

    No libertarian “regard(s) copyrights and patents as state-granted monopolies”. If he does, he has reinvented the word to suit his own lack of principle.

  14. Critic, I share your bewilderment and dismay about the stance of Reason and its readers on the copyright issue. Notice that those on this side of the debate have a pretty cut-and-dried position — “my brain creates something, therefore I own it” — while those on the other have to write long, tortuous pieces to explain their take.

    How anybody, libertarian or otherwise, could dispute the rightful ownership of someone’s intellectual creations is beyond me. Such ownership is a right not because it was written into law; it’s written into law because it’s a right.

  15. Property is property, regardless of the form. I own my car the same way I own the manuscript of my novel and its publishing rights, or the ones and zeros in my computer that exist as the music I wrote and recorded digitally. Trying to separate “tangible” property from “intellectual” property is an exercise in sophistry.

    Both Kevin Carson and I have shown how we think it’s different. Do you have any actual response to how we said it’s different? Just repeating over and over again “It is the same! It is the same!” isn’t an argument. There are quite clear problems with viewing intellectual property as identical to tangible property. I, for one, would be willing to concede that they’re the same, or at least that there’s a good argument for it, if you’d offer any evidence for your position.

    It’s not sophistry to say that intellectual property is inherently different; there are clear reasons to think so. You can have a song on your hard drive, copy it, and give it to me, and you will still have the use of the song. If you lend me your car, then you can’t use the car anymore. Formerly, there were not nearly as many problems with copyright law because technology created barriers to free sharing. It cost money to print a book, or to create a sound recording, or a video recording, or what have you. Digital technology has created a world where creating a copy is trivial, and traditional copyright law seems to be at best irrelevant, and at worst actually detrimental, in this new world. The only way that copyright owners can protect their copyright in this world is by extreme intrusiveness, by limiting what I can do with the product that I purchased from them.

    Not only that, but I think in the end that viewing intellectual property the same as tangible property will eventually lead to less creativity. Any new ideas will be snatched up by entrenched interests, who will (with their political clout) make sure that those ideas are theirs forever. Look at Disney; no one will ever be able to do anything new with Mickey Mouse if Disney has its way. And that’s a bad thing. Creativity can definitely involve doing something new with ideas that already exist; in a world where intellectual property was simply property, Shakespeare would never have had a chance to exercise his creativity, and if he had stage productions who put on Shakespeare plays would have to get permission from whomever owned the copyrights to do so. Do you think that they would allow any daring explorations of Shakespeare’s work, like say portraying Romeo and Juliet as gay lovers? Bernstein and Sondheim would never have been able to West Side Story. If you want to say that copyrights should be for a limited time, fine, but just acknowledge that even that makes intellectual property different from tangible property.

  16. Property is property, regardless of the form. I own my car the same way I own the manuscript of my novel and its publishing rights, or the ones and zeros in my computer that exist as the music I wrote and recorded digitally. Trying to separate “tangible” property from “intellectual” property is an exercise in sophistry. All property derives from the intellect, regardless of whether the means of acquiring or creating the property originated with the owner or, in the instance of a gift, resides with a recipient.
    To call copyright protection “theft” is worse than childish. It attempts a linguistic slight of hand that makes the creator a criminal, and the thief a victim. Nice try.

  17. grylliade,

    You made most of the points I planned to make in response to Critic, and probably did a better job than I would.

    As you pointed out, I did not say “property” was a state-granted monopoly, but that INTELLECTUAL property was.

    I would just add that I agree we have a property right in the *tangible* results of our mental and physical efforts. If I write a manuscript, that pile of typewritten pages is my property and I have absolute dominion over it. What I don’t have is a right to prevent someone else, on his own land, with his own paper and typewriter, from putting the same series of symbols in print.

    The initial acquisition of property, according not only to Lockeans but to Georgists and mutualists, is the mixture of one’s labor with finite natural resources. Ownership of the material world is an extension of our self-ownership. But letters and digital information are not finite. How can you “homestead” ones and zeros?

    Rejection of intellectual property is common to a major subcurrent of libertarianism. You may not agree with it, Critic, but it’s hardly a marginal position.

    You also have some problems with your own position. If you consider intellectual property an inherent right, as did Spooner and Galambos, then copyrights and patents shouldn’t have an expiration date. A property right in an idea should be perpetual, as those two thinkers believed it to be. But nobody recognized any such right until governments started *granting* patents and copyrights a few centuries ago, and since then the right has *always* been regarded as defined by the terms of the grant.

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