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Steal This Essay 4: Are We Just Rationalizing Theft?

"Information is the currency of democracy."

– Thomas Jefferson

At least since the U.S. Constitution explicitly granted Congress the power to protect copyright, an intellectual foundation has been built up regarding intellectual property. My previous essays argued that foundation is now crumbling, and will be gone within 10 years as broadband connections (to enable easy transfer of large files) become ubiquitous and people become more comfortable viewing material on computer screens (where it becomes impossible to stop copying) versus on paper (where content is still somewhat excludable). In other words, if you make money from selling content, the news is worse than you think.



But whether or not this trend is inevitable, one could stop and ask whether it’s a good thing, and whether the death of excludable content should be grieved or cheered. Property is generally defined by economists as goods that are rival (e.g., if I take your car, you don’t have one) and excludable (e.g., you can lock your door to keep me out of your home). As information has become digitized (and therefore nonrival and nonexcludable), the intellectual underpinning of intellectual property has eroded, so that today the term intellectual property is little more than an oxymoron. Intellectual property may, in a few years, sound as strange to the ears as "reasonable attorney fees", "low tar cigarettes", and "Zero Administration Windows" do today.

Note, however, that while this erosion applies to all forms of copyright, 99 percent of patents remain valid and enforceable. That’s because the majority of patents entail securing property rights regarding the manipulation of atoms, not bits. If someone steals your patented concept of how to build a better mousetrap, you can still sue that company, shut down their mousetrap factory, and get a large cash settlement. Even patents regarding the way information is stored on physical media, such as the MPEG patents that apply to DVDs, remain enforceable because you can sue to shut down DVD factories that violate them. The patents that will become increasingly unenforceable are those regarding the transfer of digital information over networks, such as the patents that Fraunhofer holds over software that creates MP3 music. Yes, Fraunhofer can sue large companies that might infringe, such as Microsoft or Real, but they are unlikely to succeed in stopping individuals that create MP3 software as a hobby and release it for free. Bits are virtual; atoms are real. The rule of thumb is that if you can’t kick it, you can’t sue it.

Won’t people’s conscience stop them from "stealing" other’s "property?" Ask the millions of college students who popularized Napster. The reality is that new technology almost always changes the views of its users as to what is permissible and even what is moral. For example, the Pill radically changed society’s view of the permissibility (and feasibility) of sex outside of marriage, and had even larger effects on the role of women in all walks of life. Going back further, it is hard to see how Martin Luther’s Protestant Revolution could have taken hold without the broad availability and consequential wide literacy enabled by the Gutenberg Bible. In fact, the drastically reduced cost of information distribution that Gutenberg’s printing press entailed can be seen to underpin the entire Enlightenment, as well as its intellectual offspring, liberal democracy and market capitalism. (Not to mention the similarity that the printing press was quickly applied to the production of erotic texts and imagery, just as VCRs caught on as a way to watch adult movies in the comfort of one’s home, and the sons-of-Napster are exchanging an increasing quantity of adult materials in addition to MP3 music.)

As the marginal cost of distributing information goes from a few pennies per megabyte (the approximate cost of most media today) to zero, it is likely that the impact on larger society will accelerate. Most people will probably come to see the terms property and stealing as simply unrelated to how information is distributed and how its creation is funded.

Price per megabyte of different media today

book $20/50 MB $0.40 per MB per copy
newspaper $0.50/10 MB $0.05 per MB per copy
30 second TV ad $500,000/5 MB $0.03 per MB per person
(assuming 3 million viewers)
CD-ROM $15/650 MB $0.02 per MB per copy
DVD $50/7000 MB $0.007 per MB per copy

A.J. Liebling said that "Freedom of the press belongs to those who own one." The reality is that throughout history, the distribution of information has been monopolized by a tiny, yet extraordinarily powerful, elite. In ancient Egypt, priests would jealously guard their astronomical knowledge so as to ensure their place at the top of society by being able to predict the annual flooding of the Nile. The Roman Catholic Church used the literacy of its clergy and monks to develop a parallel government that was more powerful than the theoretically sovereign kings during the 1,000 years of the Middle Ages. Although freedom of the press is enshrined in the First Amendment to the U.S. Constitution, the reality today is that the majority of information distribution channels are still controlled by a small elite of publishers and broadcasters. An oligopoly of five powerful companies has nearly exclusive control in deciding what music will be heard. (This is certainly one of the fundamental reasons that Britney Spears is so popular.)

The influential media theorist Ithiel de Sola Pool described the concept of a technology of freedom, which he said, "aims at pluralism of expression rather than a dissemination of preferred ideas." Pool analyzed the radical differences in how communications technologies were regulated by the government, based on the perceived scarcity of how many publishers could be supported. The press was the gold standard by which others were measured, which because of its wide availability, is given the broadest First Amendment protection. But radio and television broadcasters, by convincing the government that there is a scarcity of available radio spectrum, have successfully argued the need for heavy regulation. Thus, the government not only regulates the kinds of content that can be broadcast (allowing almost any level of violence as long as no nudity is shown) but also makes it far more difficult for new entrants to compete with the established players.

If he were alive today, Pool would surely believe that the Internet is the ultimate technology of freedom. Or, as Judge Dalzell said in his historic ruling in ACLU v. Reno that pronounced the Communications Decency Act unconstitutional, "It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country – and indeed the world – has yet seen." Intriguingly, he implied that the Internet may therefore deserve even greater free speech protection than what is currently available for print. That’s because anyone with basic literacy skills can use the Internet to reach an enormous and growing audience for almost no cost. If Liebling was right and the limiting factor is the availability of the printing press, than that price has been reduced to the $1 an hour or so charged by Internet cafes, or the free Internet access made available in many U.S. libraries.


The world we seem to be entering, then, is one in which the distribution of content is essentially free, even while its creation must still be funded. However, the group most responsible for promoting the concept of intellectual property is the recording industry, which generally gets the ownership rights to artists’ music in exchange for agreeing to distribute it. Is it any wonder then that the recording industry routinely makes absurd comparisons such as that there is no difference between stealing music and stealing a car? (The recording industry also routinely refers to copying music as piracy, trivializing a real crime in which hundreds of people are killed every year on the high seas. Piracy on the seas is violent as a direct result of the fact that physical goods are rival.)

A world in which distribution is free is one where many more voices can be heard (and also hopefully in which the corresponding mouths can be fed). It is unlikely, though, that there will be enough money left over to support the recording industry. On the night when the RIAA’s last lawyers are laid off – they will go out toasting, "Well, at least we brought Napster down with us" – few tears will be shed for the demise of the music oligopoly.

Of course, the music industry as it currently exists is not giving up without a fight, and a future essay will examine how their announced digital offerings compare with the many services that have risen up in place of Napster.

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