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 |
"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.
References:
- "Property Rights Among Native Americans" Anderson, Terry L. 2/1/1997.
http://fee.org/freeman/property-rights-among-native-americans/
- "Colin Hanks Explores the Rise and Fall of Tower Records" Leon, Melissa 10/18/2015
http://www.thedailybeast.com/articles/2015/10/18/colin-hanks-explores-the-rise-and-fall-of-tower-records.html
- "Music Sales Over the Years: 2014 Year-End Soundscan Data" Brown, Jake. 1/5/2015
http://gloriousnoise.com/2015/music-sales-over-the-years-2014-year-end-soundscan-data
- "The Recorded Music Market in the US, 2000-2013" Tschmuck, Peter. 3/21/2014
https://musicbusinessresearch.wordpress.com/2014/03/21/the-recorded-music-market-in-the-us-2000-2013/
- "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
https://www.reddit.com/r/AskHistorians/comments/1g8v2t/how_accurate_is_the_popular_us_perception_that/
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