What is property, and who decides it? Is your music yours?


I received a letter yesterday from Michael Robertson, a friend of mine and founder of MP3tunes. His company’s mission is to let people listen to their music wherever they want, and on any device they want. Recently EMI sued him, claiming that he was infringing EMI’s copyright by implementing the services that MP3tunes offers to its users.

Regardless of the legal and technical details, the point here is the possessive pronoun in the expression “their music”. Whose music is it? Whose property is a digital good?

When the world was not largely built on digital technologies and goods, it was easy to say who owned something. If I had it, you didn’t. If I gave it to you, I stopped having it at the same time. With the emerging value of the ideas that the objects embodied, a series of legal tools were forged that were needed to supplement the legislation that already well protected material goods. The existing ones for example covered theft. The new ones introduced the concepts of Copyright, Trademark, and Patents. After a while, maybe in a moment of seeking efficiency of expression (?), lawyers came up with a new simpler expression to talk about the three new protections, and started to say simply “Intellectual Property“. In time this shorthand form to mean the laws concerning copyright, trademarks, and patents, acquired an implied meaning of its own, and it became normal to say things like “intellectual property theft“, as if the legislation concerning material goods also covered digital ones.

They don’t. You can’t steal music. You can’t steal a movie, you can’t steal an ebook. You can’t steal bits!

Bits are inherently copiable, they are made to be copied, and all the tools we use to deal with bits are taking necessarily advantage of this. As you display information on your screen, or listen to sounds on your headphone, bits get necessarily copied.

Michael Robertson believes that you should not go back and ask for permission, and probably pay an additional fee, if the only thing you want to do with a song you already paid for once is to listen to it on a different device or in a different place. EMI believes that you should.

The WIPO, the World Intellectual Property Organization, whose meetings are not public is steering our societies in a direction that is based on the original confusion I described above. How can its actions and recommendations make sense, and be beneficial to the wide range of countries in different economical and cultural conditions, if the edifice of the WIPO worldview is built on the quicksand of confusion?

Michael’s battle is an important one. It is today, but even more so for the future, when not only bits are not going to be harder to copy, but actually physical goods are going to become easier to copy. If today there must be a certain level of ingenuity, and organizational skill to make sure that your gang of brand-inspired copysters can make a profit from producing knockoff Prada bags in China and selling them on the street in Western countries, tomorrow with 3D printers these skills will be commoditized and anybody will be able to either make an identical copy of any object, or take inspiration from it and remix it for new forms or new uses.

The change this brings will be monumental: all of our manufacturing industry is based on the assumption that building is hard. When it won’t be anymore, the battles to protect those failing industries will be huge.

Michael’s battle is an important signal of the future to come, and in my opinion he is on the right side. Let’s make our voices heard, and help him win.