Monday, March 10, 2014

Grammy Foundation Essay Submission

(Note: This essay was originally directed to members of the Grammy Foundation, i.e. music business people, under the title "Intellectual Space"). 




Angry over our successful lawsuits curtailing access to “free” music, and now aging into positions of influence, the Napster Generation embraces a philosophical argument against copyright, based on the notion that intangible goods are not scarce. 

Intellectual Space establishes a new paradigm allowing intellectual works to be understood and analyzed in the same manner as physical objects; showing them to be scarce, rivalrous, and rightful property; while exposing the fallacy in the anti-copyright argument. 


A Brief History of Digital Piracy (Our Public Relations Nightmare)

Copyright has been the law of the land for over 300 years. Whether ignorant or defiant of the law, by the turn of the 21st century millions of mostly young people were using peer-to-peer sites like Napster to illegally copy and distribute song files. While copying a recording had always been a technical possibility, ever since Edison’s wax cylinder, the advent of digital media and the internet made copies perfect, easy, and extremely cheap.

Successful copyright-infringement lawsuits were brought by the music industry against Napster, other file sharing sites, and against individuals. Now deprived of access to free music, disappointment among music fans was predictable. The visibility of the court actions highlighted our enforcement power under copyright law, consequently allowing the Recording Industry Association of America (RIAA), record companies, and successful artists to be portrayed as bullies. Music had a public relations problem on its hands.

To address the public relations issues, the RIAA created public service ads promoting the concept that “copying is theft”. This memorable slogan seems morally self-evident to us in the music business. If I have created a piece of music, why should someone else be allowed to exploit it without my permission? Aren’t property rights in intellectual works a settled matter? Unfortunately, in the minds of the Napster Generation, the answer is no.

War for the Mind of Napster Generation

While legal battles have been won, the philosophical war is not over. Books such as Stephan Kinsella’s “Against Intellectual Property” offer ammunition to a Napster Generation eager to defend their iPods full of pirated songs. Kinsella, a patent attorney, denounces all of intellectual property - copyright, patent, and trademark – as allegedly being unnecessary and morally unjustifiable.

Kinsella first does an admirable job of explaining the rationale for property rights in general.  Physical goods like land, food, and manufactured items are scarce and rivalrous. That is, goods are limited in abundance. The use of something by one person interferes with use by another. Both of us cannot farm the same one plot of land, nor eat the same one apple.

Because physical objects are scarce and rivalrous, human conflict over their use is inevitable. To avoid conflict, we need a system of property rights. “Property” is a legal construct allowing us to decide who may use a given resource, while excluding others.

But according to Kinsella, intellectual works are not scarce:

[I]f you copy a book I have written, I still have the original (tangible) book, and I also still “have” the pattern of words that constitute the book. Thus, authored works are not scarce in the same sense that a piece of land or a car are scarce. If you take my car, I no longer have it. But if you “take” a book-pattern and use it to make your own physical book, I still have my own copy.

Such intangible goods are allegedly “free goods”, and  “super-abundant ”, like a “magically-reproducing lawnmower”, so disputes cannot arise over their use. Therefore, Kinsella concludes, there is simply no justification for intellectual property.

Our legal actions forced music consumers to begin paying for music they had become accustomed to getting for free. Many were also led to consider the moral and philosophical basis for copyright law, an uncomfortable task for those with devices full of downloaded content. Meritorious or not, it is hardly surprising that Kinsella’s anti-copyright argument finds support in the general public. More troubling is that Kinsella’s thesis has apparently been persuasive to creative types as well.

Copying is Theft! Or . . . is it?

Nina Paley is the writer-director of the animated feature “Sita Sings the Blues”. After being made to pay a significant license fee for songs used in her film, Paley became an anti-copyright activist and “artist in residence” at She has penned the song “Copying is Not Theft”. Her lyric expresses the anti-copyright argument succinctly:

    Copying is not theft
    Stealing a thing leaves one less left
    Copying it makes one thing more
    That's what copying's for

Copying is not theft
    If I copy yours you have it too

    One for me and one for you

    That's what copies can do

If I steal your bicycle you have to take the bus
    But if I just copy it there's one for each of us!

Paley is right. “Theft”, synonymous with the common law crime of larceny, means taking and carrying away something rightly owned by another, with the intent to permanently deprive. Copying a song file neither carries away the original, nor deprives the owner of listening.

Our Problem Persists

We can see there is a problem here. Copying does not appear to be theft. Intellectual works can be duplicated without limit. The anti-copyright “non-scarcity” argument seems to have merit, at least superficially. Meanwhile the RIAA is characterized as a greedy leviathan tyrant. The Napster Generation, many of whom now reject intellectual property per se, are a decade older, and gradually aging into positions of influence.

Are we right or wrong? Is there a philosophical justification for the copyright law we enforce? If so, what is it?  And if intellectual property is justified, then what is the fallacy in our opponent’s position? And most importantly, how to we communicate this to the Napster Generation?

Artists Will Starve! Or Will They? And So What If They Do?

Our recent efforts at addressing the copyright debate have focused largely on what could be called a “utilitarian” argument: How could the creators of books, music, films, and video games possibly earn a living if others were allowed to copy the work? Nobody is going to finance any large entertainment project absent copyright protection. Without the profit motive, entertainment would be reduced to amateurs and perhaps a handful of philanthropic ventures. Counter-arguments regarding “alternative business models” notwithstanding, the utilitarian reasoning is powerful and persuasive. We should continue to bang the utilitarian drum.

However, the utilitarian argument does not appeal to everyone. Many in the Napster Generation lean somewhat libertarian in their political thinking. Do the manufacturers of buggy whips or slide rules have a right to make a living? Is copyright merely a coercive tool of the state, used to prop up a dinosaur entertainment industry that should be allowed to fail, or remake itself and adapt to a changing world? That is how many see it. For them, copyright must be argued and justified in philosophical terms.

Moving Forward

What is needed is a philosophical paradigm that allows intellectual property to be understood and justified on the same terms as physical property, and which exposes the logical fallacies of the anti-copyright argument advanced by Kinsella, et. al. This theory must be logically sound, and able to withstand rigorous academic challenge. At the same time, it must yield simple analogies and examples, making it accessible to the lay person. I believe Intellectual Space is that paradigm.

The Doctrine of Intellectual Space allows an intellectual object, such as a song, movie, book, or software to be visualized in the same manner as a physical object. This greatly facilitates the otherwise confusing task of comprehending property rights over intangible goods.


The Paradigm

Intellectual Space is an array of unique locations, like physical space. Vast quantities of raw intellectual matter are scattered around intellectual space, just as vast quantities of physical matter are scattered around physical space. Words and symbols of human language constitute the basic building blocks of intellectual matter, just as atoms and molecules are the basic building blocks of physical matter.

Random words and symbols are useless to people, like aluminum-bearing bauxite ore lying dormant in a hillside. But through human ingenuity and effort, raw material can be discovered, brought forward, re-arranged, and transformed into a more useful pattern. Aluminum can be fashioned into a beautiful new bicycle. Words and musical notes can be fashioned into a beautiful new song.

Just as with physical matter, patterns of intellectual matter can have identifiable boundaries and be stable across time, allowing them to be understood as discrete objects.

For Example, a Song

A new song exists at a unique location in intellectual space, because it is different than that which has come before. A new song has a boundary, because we can tell the difference between what is inside from what is outside. A new song is temporally stable, because it is the same today as it was yesterday. A song is an intellectual object.

Musicians have the ability to bring a new song into existence and deliver it to others. This satisfies the human desire to be entertained. It is useful. A song has all the necessary characteristics of economic goods.

The act of creating a new song is homesteading intellectual property, because it represents the discovery and transformation of raw matter into a useful object, just as bringing aluminum out of the hillside is homesteading physical property. The homesteader is the rightful owner of the new object, and is entitled to 100% of its use.

Consumer Goods vs. Producer Goods

Objects that are directly useful to consumers are called consumer goods. Consumer goods may be replicated and mass-produced, so as to satisfy a large demand. To make replication practical and efficient, a productive capacity, i.e. a factory, must first be homesteaded into existence. The factory is also a good, called a producer good. Producer goods are used to make consumer goods.

The difference between producer goods and consumer goods is quite obvious in physical space: a factory is different than the things that come rolling off its assembly line. But in intellectual space, there is this fascinating feature: an intellectual object can function as either a producer good or a consumer good, depending on how it is being used at the time.

For example, a digital song file is a consumer good when being used for listening enjoyment, but is a producer good when being used for making copies. The failure to distinguish between consumer and producer usage is at the very root of the anti-copyright fallacy. As the following analogy illustrates, copying actually does interfere with the owner’s use, the producer use, but not the consumer use.

Unraveling the Anti-Copyright Fallacy

How are things like bicycles and song files actually able to be copied? And what are the ownership rights involved? To unravel the anti-copyright fallacy, and arrive at a philosophically sound theory supporting intellectual property, we will compare bicycles in physical space with song copies in intellectual space. To begin, let us first consider the homestead principle.

The Homestead Principle

“Homesteading” is the process by which un-owned things come to be owned in the first place. In homesteading land during the frontier days, it was not enough to simply discover unowned land. Rather, it was necessary to bring land under “dominion and control”, which means transforming it into usefulness, for example by planting crops.

Homesteading is discovering and transforming things in a way that can fulfill human wants and needs. Homesteading is an act of creation, and the object created is rightly owned by the homesteader. Modernly, any kind of production can be considered homesteading.

A Song is a Like a Bicycle . . . and a Bicycle Factory

Bicycles are mass-produced in a bicycle factory. A song is mass-produced by making digital copies on a computer.  A bicycle factory does not simply exist, nor does a master song file. Like any other economic good, both factories and master song files must first be created, only then can they be used for mass production.

Making a bike factory or a new song is an act of creation by an entrepreneur, and the person who brings this productive capacity into existence is its rightful owner, according the to the homestead principle. Ownership is not diluted. The homesteader owns 100% of the output from their factory, regardless of how much he or she chooses to utilize.

Bicycles in Physical Space

Suppose John is a bicycle maker. John discovers unowned land, and builds a bicycle factory there. By doing so, John has homesteaded in physical space, because he discovered and transformed unowned raw material into something useful. The factory exists at a unique location in physical space, because other things are at a different longitude and latitude.  We can see the boundary. By titling the factory and attaching his name, John has staked his claim.

For simplicity, imagine John’s factory as a building with an assembly line and a pile of raw aluminum tubing. With electricity to run the machine, and John’s labor, he can make 48 bicycles in an 8-hour day.

John owns all 48 bicycles produced each day. If he sells a bicycle to Betty, then Betty owns that one bicycle. Betty is now free to ride her new bicycle whenever she pleases. But in no way does Betty own any part of the productive capacity in John’s factory. When it comes to bicycles, the difference between the producer good (the factory) and the consumer good (the bicycle) is obvious, because they are physically distinct.

Suppose Betty noticed that John was only operating his factory 8 hours per day. Late one night, Betty sneaks into the factory. Using her own raw materials and her own labor, Betty runs the assembly line and produces some new bicycles, which she carts away before John returns the next morning.

Has Betty stolen anything from John? Has Betty done anything wrong? Betty may argue that she did nothing wrong. After all, John was using his factory only during the daytime, so Betty’s use did not interfere with John’s use. John is still free to use his factory just as before.

I hope that the flaw in Betty’s argument is apparent.  Betty may not have stolen anything from John, but she trespassed. The reason trespassing is wrong is that the owner of property is entitled to exclude others from using it, even when not using it himself. The owner is entitled to 100% of the use. Betty may assert that she did not interfere with John’s use, but properly understood, she most certainly did interfere. Before Betty’s trespass, John enjoyed 100% of his factory’s productive capacity. Afterwards, it was something less.

Note that expressing the factory’s total productive capacity as a percentage is crucial. If we were to express the capacity as a quantity, say “48 bicycles per day”, we would arrive at the mistaken conclusion that Betty is allowed to use John’s factory at night.

Songs in Intellectual Space

Now suppose John is a recording artist. John writes and records a new song called “Think This Through”. In doing so, John has homesteaded in intellectual space. He discovered and transformed raw material into a useful object. The song exists at a unique location in intellectual space because it has a beginning, an end, and unique contents within. We can see the boundary because it is different than other songs. By titling and attaching his name, John has and staked his claim.

 “Think This Through” exists as a digital file on John’s computer. The master song file, the computer, and a stack of blank CDs are like a factory assembly line. With electricity to run the machine, and John’s labor, he can make 48 copies in an 8-hour day.

John owns all 48 CDs produced each day. If he sells a CD to Betty, then Betty owns that one CD. Betty is now free to play her CD whenever she pleases. But in no way does Betty own any part of the productive capacity in John’s factory. When it comes to music, the difference between the producer good (the original song) and the consumer good (a copy of the song) is not obvious, because the copy can also be used as an original.  But the difference is real, and crucially important:

No matter how many copies of the song are made, there is still only one song.

No matter how many consumer goods come rolling off the assembly line, there is still only one factory.
Suppose Betty noticed that John was using only his own computer to make copies of “Think This Through”. Betty buys 1 CD and extracts the digital file from it.  Using her own computer, her own raw materials and her own labor, Betty burns new CDs.  Has Betty stolen anything from John? Has Betty done anything wrong?

Betty may argue that she did nothing wrong. After all, John was making CDs with his own computer, so Betty’s use did not interfere with John’s use. John is still free to use his computer just as before.

I hope that the flaw in Betty’s argument is apparent.  Betty may not have stolen anything from John, but she trespassed in intellectual space.  She could not have made the copies of “Think This Through” without first venturing on to John’s intellectual property without permission.

The reason trespassing is wrong is that the owner of a property is entitled to exclude others from using it, even when not using it himself. The owner is entitled to 100% of the use. Betty may assert that by making copies she did not interfere with John’s use. But properly understood, she most certainly did interfere. She interfered with the producer use, not the consumer use. 

Before Betty’s trespass, John enjoyed 100% of his song’s productive capacity.

Afterwards, it was something less.


Copyright infringement is trespass, not theft. Recognizing the distinction between producer use and consumer use of intellectual objects is crucial to correct analysis. The music industry should continue making the strong utilitarian argument, pointing out that creators will not be compensated without copyright. However, the music industry should also address the philosophical debate over intellectual property by implementing the paradigm of Intellectual Space.


Intellectual space – a theoretical array of unique locations

Intellectual matter – that which can be understood through language

Intellectual object - an ascertainable, temporally stable and bounded pattern of intellectual matter which can condition the outcome of human events

Intellectual property – a non-trivial, homesteaded rivalrous intellectual object that substantially functions as productive capacity

 See Wikipedia Statute of Anne Wikipedia (October 20, 2013 11:35 AM)

 See Wikipedia Napster Wikipedia (December 9, 2013 9:02 AM)

 See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)

 See for example Sean W., How the RIAA is a Bully Picking on the Little Guys Lazy Tech Guys (2011)

 Kinsella, Stephan Against Intellectual Property Ludwig von Mises Institute (2008)

 Id., p. 32

 Id., p. 31

 Paley, Nina Copying is Not Theft (September 20, 2013)


  1. I'm afraid the arguments are not in your favor.

  2. I think I can save you some time.
    If you're comfortable just re-defining every term related to the topic (ownership, property, production, exclusivity, rivalrousness, scarcity, etc.) why not just go like this:

    "Song": n. that which it is immoral to copy and distribute.

    Saves a shitload of time, and you get to the same conclusion much faster.

  3. Okay, that was snarky (I'm anonymous #2, not #1 btw). Let's engage "for real" a bit. Suppose I were to be generous and say that your mushy metaphor is .. um, 30% effective in its jurisdiction, which is:

    How and in What Respects the Distribution of Popular Music on Compact Discs is Similar to the Production of Bicycles.

    You still have a *mountain* of work to do before you get anywhere near the notion of "intellectual property" as currently enshrined in public law.

    My friend Tara comes over. We have a conversation. In the course of that conversation, she makes 75 statements of considerable complexity and ingenuinty. She has mined the raw materials of language and learning and forged new intellectual matter that is as good (or even better than!) the manure that comprises most of the Popular Music on Compact Discs in the world.

    If I adopted your approach, I don't have any right to the "productive capacity" of any of those statements. I can't share them, repeat them, rephrase them, or build on them; they can't inspire me to think other things, and I'm not even sure I'm allowed to let her statements modify my behavior (wouldn't that be an unlawful appropriation of the benefits inherent to those things that she knows and shared with me?)