Property Gone Wild

No one is so naive as to think there’s something intellectual or creative about ‘intellectual property rights’. They protect even the worst Britney Spears wannabe from Britney-Spears-wannabe wannabes. Music company lawyers may talk about protecting an ‘artist’s works’ against debasement or corruption, but the ‘protection’ of intellectual property is also a licence to debase and corrupt. For those who don’t posses them, intellectual property rights do indeed protect the ‘works’ against debasement, or for that matter ennoblement. Those that do possess the rights to a work – not necessarily the artists themselves – can debase and corrupt it as much as they like. I’m pretty sure I’ve heard a composition by Little Walter, one of the three or four true giants of the blues, used to advertise tampons. Whoever came up with that had no doubt intellectual property in the music. On the other hand, the composition techniques central to classic blues, which involve extensive borrowing from others, now count as piratical. Today, Robert Johnson or Blind Lemon Jefferson would be looking at fines or lawsuits for their work.

Most debates on intellectual property focus on its limits, which have been stretched as far as lobbyists can stretch them. Few people now remember that the original notion of music or literary ‘piracy’ was copying for resale: a ‘pirated edition’ was not just any copy of a protected work, but copies printed for commercial use. Today, every hall-monitor type has bought into the notion that non-commercial copying is ‘theft’, no matter how often commentators remark that, when theft occurs, the victim doesn’t normally retain what is stolen. And a whole generation of suckers is learning that, when they buy a CD, they aren’t buying those tracks to do as they please with – heavens no! – but a licence to use those tracks, one which does not extend to such enormities as giving music away.

Sharing music is not theft or piracy. Is it harmful? Certainly it is, to some people. So are many impeccably legal practices, like automating production lines, or sharing clothes or cars or apartments, or amateur entertainment, or do-it-yourself home repair. Any of these activities can destroy someone’s livelihood, though none so much as free competition itself: this great god of business ideologues of course very frequently eliminates the jobs at less competitive firms. Those laid off are quite often left homeless and destitute. If harming livelihood is going to be a justification for restricting the use of what you possess, the restrictions will soon become intolerable.

In addition one might ask: are the music and film industries really contributing something vital to our intellect or civilization these days? If so, how exactly is this contribution to be managed?

Since so many products of the music industry have nothing much to do with art, blanket protection of commercial musicians would be a pretty inefficient way to protect art or artists. And if these non-artists are essentially in business, and technology eliminates most of their profits, well, say hello to market forces.

Protecting every last penny Britney might possibly make does not do a whole hell of a lot for the many acknowledged masters of popular music now living in poverty. They were ripped off by the very industry now so desperate to protect artistic achievement. Protecting genuine artists, one would think, is most efficiently achieved by direct rewards for artistic merit, judged by their peers or by whatever other procedure seems to make sense. And if someone comes along to proclaim that none of us can judge artistic merit, what’s all the fuss about? How do we know that any music is more than a merely commercial product, whose value has no more claim to be protected by technology than horses and buggies?

There are more basic questions as well. Odd, with all the endless talk of technology bringing ‘new paradigms’, that ‘paradigm’ which most obviously needs renewal is never discussed – that of property itself. The current unrepentant popularity of filesharing indicates that the alleged property-rights of rock stars and music companies no longer command much respect. On the other hand, there is some concern that legitimate holders of these rights, artists who have not become corporate cash cows, are poorly served. Technology is the catalyst rather than the cause of these reactions. The cause is the conflict between property rights as currently conceived and the ideas underlying those rights.

Many people feel that current systems of property rights, though imperfect, are nevertheless essential; without them civilization itself would collapse. But these systems, as the mp3 controversy indicates, get into trouble when they exceed by too much the justifications that underlie them. What underlies them cannot be a body of law: it should be obvious by now that, since laws are often unjust, the mere fact that something is law provides no even moderately compelling reason to respect it. It can be right or wrong to obey the law, and to make it right, the law must have some moral foundation – even if the foundations of morality itself are debatable. Only a law widely perceived as right can have some claim to be respected.

What then are the moral principles that underlie property? They are not the laws of contract or transfer, because these presuppose rather than create a property in things: someone must already own something for it to figure in contractual arrangements. What is it, then, that would entitle someone to have something in the first place?

This question has attracted remarkably few answers. There is the radical theory that we have rights only to what we truly need. This theory is often thought utopian, or dangerous to the social order, and therefore rejected. Suppose for the sake of argument that this rejection is justified. Still, the foundations of property will be a lot shakier than usually supposed.

Really, theorists present only two reasons – other than contractual or ‘social fabric’ reasons – why anyone morally ought to acquire a property in anything, and the two reasons nearly converge into one. I can deserve something through my merit, or because I have worked on it. Sometimes merit seems to predominate, which is why more talented athletes or musicians or engineers are thought to deserve more money than their equally hard-working but less talented counterparts. Sometimes work seems to predominate, as when everyone on an assembly line is paid the same even if the more experienced workers have more skills. Often we’re unsure about the relative weights of merit and work.

Both the merit and the work justifications of property involve special cases of the broad notion of desert, or what you have coming to you. They make desert a function of some valuable efforts – valuable because on the one hand they are skilled or creative or daring, on the other because they are diligent and persistent. When John Locke justified property because someone had ‘mixed his labour’ with the soil, the idea was that this person deserved ‘the fruits of his efforts’, which suggests both that the work and the skills involved had some value in some way transferred to their objects. (Locke also seemed to think that my property rights should not deprive others of what they need, but that’s another story). So far, so good, but there is an elephant in the room. Desert itself is not infinite. It has limits.

There are at least two ways of expressing these limits, in money and in time. We use neither, because our notions of property, contrary to all logic, ignore these limits. We allow, for example, labor to give us title to land forever, no matter how great a value that land may come to have. Consider homesteading schemes where working the soil gives you title to the land: my labour of, say, several months may reap a multimillion dollar ‘reward’ for my descendants. Similarly, my talent in composing a song may get a payback in the millions. Moreover there is no proportion here. Someone whose labour or talent is equal to mine may eventually, due to the vagaries of the market, get far less. Not every homesteader’s land eventually becomes a key parcel in some huge urban development, and not every great song gets promoted into a hit. This lack of proportion is especially glaring today, when no one would claim that the earnings of a song correspond to either the work that went into it, or its merit. Property is therefore all but detached from its foundations.

Theories of property haven’t addressed this problem largely because they are rooted in an ancient concern, how to establish a property right over unoccupied land. This is a question remote from the concerns of contemporary consumers, as were the older intellectual property fights about copyright and patent. But the mp3 revolution raised new concerns: what? I suddenly can’t share the music collection I built up over the years? No one ever said I couldn’t give away my clothes or my books or my car. A system of property supposedly enshrining the ‘right to be selfish’ now goes further; it makes being unselfish a crime.

If this doesn’t seem to make sense, it’s because property rights now extend too far beyond their foundations. Yes, Metallica certainly does have a property right in its music, a right proportionate to some combination of the work they put into its composition, and the merit or skill attached to that work. But this work and merit does not entitle them to every penny that can be made off the work, much less to every penny that can be made if they go after file-sharers. How much does the band deserve for a single famous track? A good deal less, I’d imagine, than Little Walter deserved for ‘Juke’, and probably not a lot more than what the really good bar bands in your city deserve for their best numbers. Whatever the amount, it needs to be specified, and once that money is made, Metallica no longer has any property right whatever to that track. This approach simply expresses in dollar terms something like what copyright law expresses in terms of time when it makes the property in a song expire after a certain number of years. The problem is that, in the case of music, copyright should be tied to earnings as well. Earnings can outstrip desert long before current copyright properties expire.

Of course it is impractical to assess each track of each artist on its merits, and to determine the appropriate extent of property rights on the basis of those merits. But it’s also unnecessary. Proportioning property rights to merit is no more or less difficult than proportioning wages to work, or crime to punishment, or welfare to welfare recipients, or taxes to incomes. In all these cases, societies use rules of thumb, and makes exceptions in individual cases. That’s how a society would devise appropriate rules for ‘intellectual’ property. A song should be someone’s property for a standard period of time or until a certain amount of money is made from it, whichever comes first. In cases of exceptional merit, these limits could be extended, and this too can involve both rules of thumb and judgement of particular cases. Maybe the great R&B artists who got ripped off by their record companies would get extended copyright; Britney probably wouldn’t.

These suggestions don’t describe a solution but they prepare the ground for one. A society might decide that every artist really does deserve exactly what we have in the US today: a property in his productions lasting seventy years after his death. But society’s decisions aren’t necessarily right, and individuals might correctly believe that other arrangements would more closely correspond to the appropriate rewards for artistic effort and merit. For example, one might suppose that, by default, no one was entitled to more than $100,000 for a song, which should become public domain once this mark was passed.

As for artists who don’t have big hits, their recordings might be protected for much less time than now, say two years, unless some standards body decided , in a particular case, to extend that period. Protection schemes might be replaced by a musicians’ association which paid certain categories of artists for their work. These funds might be sustained by the association itself, by a regular government budget allocation, by a media tax, or by some combination of these alternatives. But one thing would change for certain: no longer would those who challenged current notions of intellectual property be stigmatized as ‘thieves’.

Whatever the law, whatever the social consensus, there just isn’t any way some third party has a moral right to make money out of Little Walter tampon ads. If the law says otherwise, the law is an ass.

MICHAEL NEUMANN is a professor of philosophy at Trent University in Ontario, Canada. Professor Neumann’s views are not to be taken as those of his university. His book What’s Left: Radical Politics and the Radical Psyche has just been republished by Broadview Press. He contributed the essay, “What is Anti-Semitism”, to CounterPunch’s book, The Politics of Anti-Semitism. In September 2005, CounterPunch/AK Press will publish Neumann’s new book, The Case Against Israel. He can be reached at: mneumann@trentu.ca.



More articles by:

Michael Neumann is a professor of philosophy at a Canadian university.  He is the author of What’s Left: Radical Politics and the Radical Psyche and The Case Against Israel.  He also contributed the essay, “What is Anti-Semitism”, to CounterPunch’s book, The Politics of Anti-Semitism.  He can be reached at mneumann@live.com

March 19, 2019
Paul Street
Socialism Curiously Trumps Fascism in U.S. Political Threat Reporting
Jonah Raskin
Guy Standing on Anxiety, Anger and Alienation: an Interview About “The Precariat”
Patrick Cockburn
The Brutal Legacy of Bloody Sunday is a Powerful Warning to Those Hoping to Save Brexit
Robert Fisk
Turning Algeria Into a Necrocracy
John Steppling
Day of Wrath
Robin Philpot
Truth, Freedom and Peace Will Prevail in Rwanda
Victor Grossman
Women Marchers and Absentees
Binoy Kampmark
The Dangers of Values: Brenton Tarrant, Fraser Anning and the Christchurch Shootings
Jeff Sher
Let Big Pharma Build the Wall
Jimmy Centeno
Venezuela Beneath the Skin of Imperialism
Jeffrey Sommers – Christopher Fons
Scott Walker’s Failure, Progressive Wisconsin’s Win: Milwaukee’s 2020 Democratic Party Convention
Steve Early
Time for Change at NewsGuild?
March 18, 2019
Scott Poynting
Terrorism Has No Religion
Ipek S. Burnett
Black Lives on Trial
John Feffer
The World’s Most Dangerous Divide
Paul Cochrane
On the Ground in Venezuela vs. the Media Spectacle
Dean Baker
The Fed and the 3.8 Percent Unemployment Rate
Thomas Knapp
Social Media Companies “Struggle” to Help Censors Keep us in the Dark
Binoy Kampmark
Death in New Zealand: The Christchurch Shootings
Mark Weisbrot
The Reality Behind Trump’s Venezuela Regime Change Coalition
Weekend Edition
March 15, 2019
Friday - Sunday
Andrew Levine
Is Ilhan Omar Wrong…About Anything?
Kenn Orphan
Grieving in the Anthropocene
Jeffrey Kaye
On the Death of Guantanamo Detainee 10028
Stan Cox – Paul Cox
In Salinas, Puerto Rico, Vulnerable Americans Are Still Trapped in the Ruins Left by Hurricane Maria
Ben Debney
Christchurch, the White Victim Complex and Savage Capitalism
Eric Draitser
Did Dallas Police and Local Media Collude to Cover Up Terrorist Threats against Journalist Barrett Brown?
Jeffrey St. Clair
Roaming Charges: Straighten Up and Fly Right
Jack Rasmus
Trump’s $34 Trillion Deficit and Debt Bomb
David Rosen
America’s Puppet: Meet Juan Guaidó
Jason Hirthler
Annexing the Stars: Walcott, Rhodes, and Venezuela
Samantha M. - Angelica Perkins
Our Green New Deal
Mel Gurtov
Trump’s Nightmare Budget
Steven Colatrella
The 18th Brumaire of Just About Everybody: the Rise of Authoritarian Strongmen and How to Prevent and Reverse It
Evaggelos Vallianatos
Riding the Wild Bull of Nuclear Power
Michael K. Smith
Thirty Years Gone: Remembering “Cactus Ed”
Dean Baker
In Praise of Budget Deficits
Howard Lisnoff
Want Your Kids to Make it Big in the World of Elite Education in the U.S.?
Brian Cloughley
Trump’s Foreign Policy is Based on Confrontation and Malevolence
John W. Whitehead
Pity the Nation: War Spending is Bankrupting America
Priti Gulati Cox
“Maria! Maria! It Was Maria That Destroyed Us!” The Human Story
Missy Comley Beattie
On Our Knees
Mike Garrity – Carole King
A Landscape Lewis and Clark Would Recognize is Under Threat
Robert Fantina
The Media-Created Front Runners
Tom Clifford
Bloody Sunday and the Charging of Soldier F
Ron Jacobs
All the Livelong Day