March 2012  
  
As a child I read a book of stories about a famous judge in eighteenth century
Japan called Ooka Tadasuke. One of the cases he decided was brought by the
owner of a food shop. A poor student who could afford only rice was eating his
rice while enjoying the delicious cooking smells coming from the food shop.
The owner wanted the student to pay for the smells he was enjoying.  
  
The student was stealing his smells!  
  
This story often comes to mind when I hear the RIAA and MPAA accusing people
of stealing music and movies.  
  
It sounds ridiculous to us to treat smells as property. But I can imagine
scenarios in which one could charge for smells. Imagine we were living on a
moon base where we had to buy air by the liter. I could imagine air suppliers
adding scents at an extra charge.  
  
The reason it seems ridiculous to us to treat smells as property is that it
wouldn't work to. It would work on a moon base, though.  
  
What counts as property depends on what works to treat as property. And that
not only can change, but has changed. Humans may always (for some definition
of human and always) have treated small items carried on one's person as
property. But hunter gatherers didn't treat land, for example, as property in
the way we do. [1]  
  
The reason so many people think of property as having a single unchanging
definition is that its definition changes very slowly. [2] But we are in the
midst of such a change now. The record labels and movie studios used to
distribute what they made like air shipped through tubes on a moon base. But
with the arrival of networks, it's as if we've moved to a planet with a
breathable atmosphere. Data moves like smells now. And through a combination
of wishful thinking and short-term greed, the labels and studios have put
themselves in the position of the food shop owner, accusing us all of stealing
their smells.  
  
(The reason I say short-term greed is that the underlying problem with the
labels and studios is that the people who run them are driven by bonuses
rather than equity. If they were driven by equity they'd be looking for ways
to take advantage of technological change instead of fighting it. But building
new things takes too long. Their bonuses depend on this year's revenues, and
the best way to increase those is to extract more money from stuff they do
already.)  
  
So what does this mean? Should people not be able to charge for content?
There's not a single yes or no answer to that question. People should be able
to charge for content when it works to charge for content.  
  
But by "works" I mean something more subtle than "when they can get away with
it." I mean when people can charge for content without warping society in
order to do it. After all, the companies selling smells on the moon base could
continue to sell them on the Earth, if they lobbied successfully for laws
requiring us all to continue to breathe through tubes down here too, even
though we no longer needed to.  
  
The crazy legal measures that the labels and studios have been taking have a
lot of that flavor. Newspapers and magazines are just as screwed, but they are
at least declining gracefully. The RIAA and MPAA would make us breathe through
tubes if they could.  
  
Ultimately it comes down to common sense. When you're abusing the legal system
by trying to use mass lawsuits against randomly chosen people as a form of
exemplary punishment, or lobbying for laws that would break the Internet if
they passed, that's ipso facto evidence you're using a definition of property
that doesn't work.  
  
This is where it's helpful to have working democracies and multiple sovereign
countries. If the world had a single, autocratic government, the labels and
studios could buy laws making the definition of property be whatever they
wanted. But fortunately there are still some countries that are not copyright
colonies of the US, and even in the US,
[politicians](http://tctechcrunch2011.files.wordpress.com/2012/01/congress-on-
sopa-done.png) still seem to be afraid of actual voters, in sufficient
numbers. [3]  
  
The people running the US may not like it when voters or other countries
refuse to bend to their will, but ultimately it's in all our interest that
there's not a single point of attack for people trying to warp the law to
serve their own purposes. Private property is an extremely useful idea —
arguably one of our greatest inventions. So far, each new definition of it has
brought us increasing material wealth. [4] It seems reasonable to suppose the
newest one will too. It would be a disaster if we all had to keep running an
obsolete version just because a few powerful people were too lazy to upgrade.  
  
  
  
  
  
  
  
**Notes**  
  
[1] If you want to learn more about hunter gatherers I strongly recommend
Elizabeth Marshall Thomas's [_The Harmless
People_](http://www.amazon.com/Harmless-People-Elizabeth-Marshall-
Thomas/dp/0394427793) and [_The Old Way_](http://www.amazon.com/Old-Way-Story-
First-People/dp/0374225524).  
  
[2] Change in the definition of property is driven mostly by technological
progress, however, and since technological progress is accelerating, so
presumably will the rate of change in the definition of property. Which means
it's all the more important for societies to be able to respond gracefully to
such changes, because they will come at an ever increasing rate.  
  
[3] As far as I know, the term "copyright colony" was first used by [Myles
Peterson](http://torrentfreak.com/australia-us-copyright-colony-or-just-a-
good-friend-120121/).  
  
[4] The state of technology isn't simply a function of the definition of
property. They each constrain the other. But that being so, you can't mess
with the definition of property without affecting (and probably harming) the
state of technology. The history of the USSR offers a vivid illustration of
that.  
  
**Thanks** to Sam Altman and Geoff Ralston for reading drafts of this.  
  

