Friday, October 30, 2015

The Death of Intellectual Property

     There is a common misconception that many, if not most students take with them from primary school in the US. Whether this misconception is explicitly taught or simply implied may vary from case to case, but it should at least be familiar to everyone. The premise is this: The Native Americans had no concept of land ownership. Besides the fact that this premise dismisses the heterogeneous nature of the peoples, cultures, and customs of pre-colonial America, it is also false. "Property rights, supplemented by customs and traditions where appropriate, often produced the incentives that were needed to husband resources in what was frequently a hostile environment"(Anderson).

     It was not a conceptual void that laid the groundwork for aggressive and most often one-sided colonial expansion of European settlers, but simply a differing view of ownership that was forcibly delegitimized in the wake of a turbulent period in history.

"So Native Americans [...] did have concepts of private property and land ownership [...] but European systems did not recognize the social and legal frameworks that undergirded it. If a claim did not have the force of European legal recognition, then for them, it did not exist" (Khosikulu).

So why is this misconception so easy to believe? It could be, in one sense, because it is philosophically relatable. Land was here for millions of years before the first human was born, and will be here long after the last human dies (or, more optimistically, leaves to settle elsewhere). Our only claim to a piece of it lies in a physical or electronic document, the validity of which is only maintained by the goodwill of the prevailing legal institutions (as the Native Americans found out). Perhaps it is very easy to imagine a culture that realizes the temporary and ultimately futile nature of a contract with earth.

     With this in mind, we must wonder what the future holds for the concept of intellectual property, a concept in every way more nebulous than that of land ownership. After all, land is physically persistent, able to be seen and felt. Intellectual property has no such advantage, for while the manifestations of ideas can exist in the physical world, the ideas themselves cannot. If someone has a revolutionary idea for some product, method, or work of art and then dies suddenly, did they, for that brief second, create property? Was that property suddenly destroyed? Or is the concept that a person can own a sequence of thoughts fundamentally ridiculous?

     These questions are perhaps better left for philosophers, but with this framework in mind, I'd like to put forth the argument that with our technological advances, the existential rules for intellectual property are changing, much like the ownership rights of the Native Americans hundreds of years ago. The scope of intellectual property laws and what intellectual property can be considered to be is very broad, so to contextualize this argument, I will examine the effect that these changing rules have had on the music industry. It may well be that in the future, this industry will be seen as the first domino to fall, the canary in the mine shaft, or any number of other cliches that describe the fundamental restructuring of what we, as a society, think of as property.

"Want to buy a Tower Records?" ~ Justin Timberlake, The Social Network

The idea that Napster killed Tower Records may not be quite as off the mark as the misconception about Native American property rights, but it isn't quite accurate either.

"Even after the dawn of Napster and online music piracy, [Tower Records CEO] Solomon's belief in people's general willingness to pay $18 for a CD stubbornly persisted. ...Solomon thought people would always want physical record collections--an unsound prediction that ignored the rise of mp3 players" (Leon).

    Despite questionable business choices on the part of the CEO, the liquidation of large music retailers such as Tower Records was inevitable. Music, the sequencing of sound waves at varying frequencies, is as old as humanity itself, and yet, only for a very small fraction of this time have we had the ability to reproduce it (via written music). For an even shorter period of time, (roughly since Thomas Edison invented the phonograph cylinder in 1877), has it been possible to commercially replicate music in a physical medium, and to own or sell that medium for profit.
In a relatively short span of time, physical recordings took on a variety of forms; records, 8-tracks, cassette tapes, and compact discs, until finally, the .mp3 (among other digital files) revolutionized not only how music is purchased, but how it is not purchased.

     The above chart takes digital sales into account, and yet still displays an industry-crippling loss of sales over the past decade and a half. The often-heard arguments that music piracy either did not affect or somehow benefited the music business have been proven wrong by the sales data of a few short, painful years. Today, the decision to purchase music is just that; a decision, not a necessity. Consumers are fully aware that anyone with even a novice-level ability to navigate the Internet can find and download entire artist catalogs for free. The efforts made by companies to bridge this gap by monetizing digital and streaming services has in no way made up for the loss accrued.

"The recently published sales figures of RIAA give no reason for musicians' optimism. Since streaming, subscription and SoundExchange payouts account for nearly a third of the revenue from digital music sales, the musicians' income from digital and physical music sales will further decrease. Just a small group of superstars, whose songs are streamed millionfold - besides solid CD and download sales - will benefit from such a development"

     All of this begs the question; once the tangible medium for intellectual property becomes obsolete, how can ownership rights be effectively enforced when the fruits of millions of dollars' worth of investment can be gotten in seconds for free (assuming adequate bandwidth)?
This is not to say that attempts are not made to safeguard copyright protections. Music piracy remains illegal, illicit file sharing sites are regularly shut down, and sometimes, high profile arrests are made, such as with Megaupload founder Kim Dotcom in 2012. As of this writing, however, these efforts have yet to return to music sales to anything resembling their previous levels.

     Besides the huge roadblocks to effective enforcement of copyrighted music theft, another gauntlet remains on the horizon for this industry. Most music consumers alive today have at least some recollection of owning or purchasing music in a physical medium. The recent upswing in vinyl sales could potentially be attributed to nostalgia; emergent twenty and thirty-somethings with disposable income and vague recollections of growing up in a house with their parents' record player. In other cases, teenagers might recall the first CD they purchased at a store "when that was still a thing." What will the situation be like in ten years when no wistful tactile memories remain? How about in twenty? It is reasonable to conclude that soon, the demographic to whom albums were marketed so aggressively for the latter half of the last century may not even realize that music was ever something that had to be purchased. Furthermore, they might not realize that it was something that ever could have been purchased. The idea that entire corporations were created to sell less than 1GB worth of music on little pieces of plastic may seem absurd and ridiculous to them. In fact, their concept of intellectual property, at least insofar as it relates to music, may not even exist. At the very least, it will be vastly different.

      As mentioned above, the music industry may very well be the spark that starts the fire for the cultural and legal redefinition of the entire concept of intellectual property. Mp3s are relatively small. They can be downloaded quickly and stored easily en masse. Of course, however, download speeds and storage capacity increase constantly. Books, movies, video games, and apps all suffer from a similar weakness in that they require nothing more than a phone, laptop, or tablet to utilize. Which industry will be the next to fall? Several video rental chains have already been put out of business by the advent of streaming. Indeed, streaming services seem to have the upper hand now, but will the same be true when we can fit 500 movie files on our smart watches and Chromecast them directly to the 60-inch HD screen in our living rooms? How about when we can transfer them to someone else's watch just by touching the two of them together? At that point, a $9.99/month Netflix subscription might not seem like the great deal it once was.

     None of this is to put forth the argument that intellectual property, as we define it today, is not valuable. Quite to the contrary, besides the need for food, shelter, and companionship, there is nothing more essentially human than the free exchange of ingenuity, creativity, and expression. Those who invent, express, and create artwork, in my opinion, should be afforded the same opportunities for success as those who provide those aforementioned necessities. The problem lies in the fact that while we still apply the same general conditions for success to intellectual property as we do for physical property and services (i.e., financial viability in a marketplace), intellectual property will soon have no more horses left in the race, so to speak. Houses and cars cannot be illegally downloaded over an Internet connection, but an entire life's work of novels or screenplays can. Nobody can digitally replicate an afternoon of physical work invested in running a cleaning or lawn service, but they can copy ten years' worth of content from a movie studio or recording company in about the same amount of time. Intellectual property laws provide ownership of ideas, but if one owns something and yet can not stop others from owning it at their whim, what does ownership signify in the first place?

     The rules that govern intellectual property, at least as of now, are becoming more obsolete and unenforceable every day, much like those that gave the Native Americans the rights to their own land. Just as it was then, rules that have no meaning to the offenders will be subverted, ignored, and transgressed. In the coming years, we will be forced to redefine what intellectual property is, what it should be, and perhaps, if it is actually property at all.

  1. "Property Rights Among Native Americans" Anderson, Terry L. 2/1/1997.
  1. "Colin Hanks Explores the Rise and Fall of Tower Records" Leon, Melissa 10/18/2015
  1. "Music Sales Over the Years: 2014 Year-End Soundscan Data" Brown, Jake. 1/5/2015
  1. "The Recorded Music Market in the US, 2000-2013" Tschmuck, Peter. 3/21/2014
  1. "How Accurate is the Popular US Perception that Native Americans Lost Their Land 'Because They Didn't Understand the Concept of Ownership" (Reddit AskHistorians thread) 2013 Khosikulu