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andrewducker(following on from an argument earlier at the LJ meetup)
We were discussing property and I stated my definition of property. Lilian countered that this was nothing like the legal definition of property. And I replied that I wasn't trying for a legal definition of property. Law is something that arrives _after_ the fact - an attempt to codify the way that we believe society should work and to enforce that structure. I wanted to talk about the way that people feel about property and the way they deal with it. when people say "This is mine" what do they actually mean? So, take the following with a large dose of IMHO and feel free to poke holes in it.
Oh, and I'm not talking about 'rights' here. Right and Wrong aren't things that interest me particularly in the greater scheme of things, and the definitions of these have changed so much over time, while the way that your average person thinks about property hasn't, really.
Property consists of two parts - access and control. If you don't both have access and control other people's access to something you don't really own it.
Access - say, for instance, you buy a book. If they didn't give you that book or let you take it away with you, you wouldn't really think you owned it. If you bought a house but weren't allowed in, then it's not really yours, is it? You can, obviously, pass on those rights to others, but unless they revert to you at some point in the future most people wouldn't consider you to really own it.
Control - Let's say you bought a house. And you could go into it at any time. But you couldn't stop others doing likewise and had no power to remove people from it. Suddenly it wouldn't seem much like your house any more, would it? Unless you can put a fence around it and say "hands off", it's a responsibility, not a property. Similarly, if you can't stop someone wandering in and reading your books then you're a library, not a book owner.
So, taking a feudal example, everything is actually the property of the king, because it is he who controls the access to everything and he is never denied access to anything. In the modern world, we _largely_ own our belongings, because we (indirectly) pay people to deter others from wandering off with 'our' belongings. But when theft becomes endemic, property loses some of its meaning - in Amsterdam people virtually expect their bicycles to be stolen, to such an extent that they don't consider them to be their property in the normal manner. I remember a friend saying "My bike got nicked, so I bought another one from a junkie." in the same way that I might mention running out of milk and getting some more from the corner shop. In the UK you don't, in some ways, own the land you 'bought', because certain rights are withheld by the state (public footpaths, the right to roam, etc.) and you are charged a fee for the continued right to ownership.
The problem with intellectual property (which isn't property and thinking of it like property is what causes most of the mistakes people make when thinking of it) is that the control half of the equation has suddenly vanished. It used to be that if you produced music you both had access to it and controlled other people's access. Nowadays you _cannot_ stop other people accessing it, copying it, giving it to their friends and generally doing what they like with it. You can make life more difficult for the occasional person, but by and large the battle's been lost - Napster and it's successors proved that the free movement of bits is inevitable. And in the modern world virtually everything is made of bits. If you can't stop people running off with 'your' music, is it yours any more? Are we going to see a sea change in attitude over the next generation, to a point where people no longer think of music as beloning to anyone, any more than the sounds of birds tweeting does? Or are they going to find a way to bring everything under control again?
I don't think they can. But what do I know, I'm off to bed.
We were discussing property and I stated my definition of property. Lilian countered that this was nothing like the legal definition of property. And I replied that I wasn't trying for a legal definition of property. Law is something that arrives _after_ the fact - an attempt to codify the way that we believe society should work and to enforce that structure. I wanted to talk about the way that people feel about property and the way they deal with it. when people say "This is mine" what do they actually mean? So, take the following with a large dose of IMHO and feel free to poke holes in it.
Oh, and I'm not talking about 'rights' here. Right and Wrong aren't things that interest me particularly in the greater scheme of things, and the definitions of these have changed so much over time, while the way that your average person thinks about property hasn't, really.
Property consists of two parts - access and control. If you don't both have access and control other people's access to something you don't really own it.
Access - say, for instance, you buy a book. If they didn't give you that book or let you take it away with you, you wouldn't really think you owned it. If you bought a house but weren't allowed in, then it's not really yours, is it? You can, obviously, pass on those rights to others, but unless they revert to you at some point in the future most people wouldn't consider you to really own it.
Control - Let's say you bought a house. And you could go into it at any time. But you couldn't stop others doing likewise and had no power to remove people from it. Suddenly it wouldn't seem much like your house any more, would it? Unless you can put a fence around it and say "hands off", it's a responsibility, not a property. Similarly, if you can't stop someone wandering in and reading your books then you're a library, not a book owner.
So, taking a feudal example, everything is actually the property of the king, because it is he who controls the access to everything and he is never denied access to anything. In the modern world, we _largely_ own our belongings, because we (indirectly) pay people to deter others from wandering off with 'our' belongings. But when theft becomes endemic, property loses some of its meaning - in Amsterdam people virtually expect their bicycles to be stolen, to such an extent that they don't consider them to be their property in the normal manner. I remember a friend saying "My bike got nicked, so I bought another one from a junkie." in the same way that I might mention running out of milk and getting some more from the corner shop. In the UK you don't, in some ways, own the land you 'bought', because certain rights are withheld by the state (public footpaths, the right to roam, etc.) and you are charged a fee for the continued right to ownership.
The problem with intellectual property (which isn't property and thinking of it like property is what causes most of the mistakes people make when thinking of it) is that the control half of the equation has suddenly vanished. It used to be that if you produced music you both had access to it and controlled other people's access. Nowadays you _cannot_ stop other people accessing it, copying it, giving it to their friends and generally doing what they like with it. You can make life more difficult for the occasional person, but by and large the battle's been lost - Napster and it's successors proved that the free movement of bits is inevitable. And in the modern world virtually everything is made of bits. If you can't stop people running off with 'your' music, is it yours any more? Are we going to see a sea change in attitude over the next generation, to a point where people no longer think of music as beloning to anyone, any more than the sounds of birds tweeting does? Or are they going to find a way to bring everything under control again?
I don't think they can. But what do I know, I'm off to bed.
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no subject
Date: 2004-02-03 04:26 pm (UTC)birdsong is birdsong. Britney's latest chart smash is still Britney's chart smash, whether you think of her as "owning" it or not.
That's a different issue though.
no subject
Date: 2004-02-03 06:39 pm (UTC)Though you have mentioned the twin goods of access and control, the companies have a different headspace which allows their understanding of ownership to differ from ours. So although you are not shooting for a legal definition, the companies do use law as a tool, and they will organize their perception around that tool. US law, at least, allows for many different ways to have access to and control of property. You can own outright, and you can lease/rent/option as well. You can put it in a trust of which you are the beneficiary. That's just with real estate. Corporations, trusts, and the like allow people with a helluva lot of money to have access to and control things without the downsides (liability and taxation) of owning them.
If I were in one of those outfits, I would regard Napster and the like as a drain on profits to be dealt with like any other. They will never achieve 100% efficiency in their economic model, and they would be foolish ever to think they can. It probably doesn't bother them as much it seems.
no subject
Date: 2004-02-03 10:48 pm (UTC)The difference between intellectual property and material property is that intellectual property can be stolen, given away, or sold, and the owner still possesses it. If a cake were intellectual property, you could have your cake and eat it.
If I write a story and send it out to 10 of my friends, in the full awareness that they will send it out to four or five friends apiece, and within the year people will have read it who have no idea who I am beyond "the one who wrote that story where McCoy gets stuck on the Mirror Enterprise", that is a classic illustration of having your intellectual property and eating it. The story itself is still mine. It could be stolen from me - someone could change every reference to "Spock" to "Jack" or "O'Neill", every reference to "McCoy" to "Jackson", "Scott" to "Sam", remove telepathy, throw in a Stargate, delete Kirk and substitute Hammond... and claim that it was now their Stargate story not my ST:TOS story. That would be theft. But if someone I've never heard of photocopies it and passes it on to someone else I've never heard of, while keeping my name on it and my words in the order I wrote them, that is not theft, because the story is still mine.
I'm playing Janis Ian's "At Seventeen" on my computer at this moment: an MP3 downloaded from her website. I own the CD with it on: I just like having the MP3 on my hard disk. (She does some lovely fractal backgrounds to her songs for MP3, too.) An artistic creation is not "birdsong" (though in fact experts can tell one bird from another by the song, at least for some species!): it's a unique creation. The point is that "ownership" for intellectual property means something different than it does for material property.
It's only (relatively) briefly that music has been owned in the intellectual property sense: since the advent of recording equipment. If we include formal musical notation under that category then music ownership goes back centuries, not decades, but so long as people took it for granted that you could learn to play a tune and have it memorised, "ownership" meant that the composer's name was on it. Johannes Sebastian Bach never got royalties every time someone played "Toccata in F#min". But we can recognise it as theft if someone had put their own name on the music and claimed it was theirs, whether or not they made money out of doing so.
Re:
Date: 2004-02-04 12:01 am (UTC)Property seems to be a more intrinsic part of human nature than copyright - babies understand the concept of property. The right to control who copies your ideas and how they copy it, on the other hand, is a relatively new invention. The right to say "I have made this, and thus you cannot make something that is very similar to this." is on very hazy ground.
Re:
Date: 2004-02-04 12:12 am (UTC)Do you? Who is "we" in the sentence above? In my circle of copyeditors and friends, we recognise the situation I describe as plagiarism, not copyright violation, which is a different thing again.
One can of course copyleft (http://www.gnu.org/copyleft/copyleft.html#WhatIsCopyleft) a story or a piece of software or a piece of music.
The right to say "I have made this, and thus you cannot make something that is very similar to this." is on very hazy ground.
But the right to say "I made this, and therefore you cannot take it and claim that you made it" is something that any toddler understands. Trust me on this one, it's so.
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Date: 2004-02-04 12:27 am (UTC)Re:
Date: 2004-02-04 10:19 am (UTC)Re:
Date: 2004-02-04 11:08 am (UTC)