All we need is "Love"?: I saw the Beatles "Love" CD at Virgin Records and thought, "Just what I don't need, another Beatles anthology." Much as I loved the Beatles, thanks to my Ipod, I have grown very tired of their recordings. But when I saw this was a "remix," I decided to give it a try since I liked the Elvis remixes released a few years ago until I wore those out as well. What I did not realize is that this CD is not just remixed individual songs, but an entire 90+ minutes of remixed music. For example, one track might mix 3 drum riffs from different songs before starting a fourth song, play a portion of it before transitioning to two more excerpts. Two songs can be playing over each other simultaneously. An early acoustic version can meld into the full studio version. Reading the liner notes, I discovered that this was a sound track for a Cirque du Soleil show in Las Vegas called "Love" and was mixed by George Martin and his son Giles. As a result it all sounds fresh and new again. I recommend it. You can listen to samples of each track here (using the "listen" button at the bottom) but most of the samples are from the heart of the songs rather than the more interesting transitions and overlays so it is not indicative of why I like this CD.

But then I had a very different thought. We could be enjoying this sort of thing all the time with different artists, or multiple artists except for one thing: Intellectual (so-called) Property. How did this single CD come about? Turns out George Harrison was buddies with Guy Laliberté, one of Cirque's founders, and arranged permissions from the other principals after three years of negotiations. Otherwise we would not have this one remix. And we won't have any more unless lightning strikes.

IP is supposed to create incentives for innovation. Here, as elsewhere, it is suppressing innovation. I know the counter arguments: The Beatles songs would not exist in the first place if not for IP; nor would this mix. And they deserve recompense. And they should be able to control the quality of derivative uses lest the value of their property be diminished, etc. I know the drill.

I also know the responses. The Beatles would not have created music unless compensated untold millions? Cirque Du Soleil would not have need a sound track for their show? Unlikely. They would not have created music unless their decedents were made millionaires many times over? Hardly. They deserve to control all derivative uses? What about the writer of the poster on which "For The Benefit of Mr. Pike Kite" was based and his or her deserving descendants?

We won't settle this here. Suffice it to say that there is an enormous difference between tangible and intangible property rights. With tangible property you control your stuff. With intangible property you control other people's stuff. (For more tentative thoughts along this line see here (pdf).)

One problem with IP is the "P." Private property, of which I am a big fan, invites a right of unlimited exclusion, unlimited terms of ownership, rights to bequeath to one's heirs in perpetuity, and the dreaded accusation of THEFT. The Constitution does not use the term "property," but merely "exclusive right" for "limited times." Hardly how one would express a full-blown property right. If you really MUST have a legal subsidy for authors, composers and performers, unlike chefs and dress designers, there is no reason why copyrights, like patents, could not be for a 5 or 7 years nonrenewable term, after which a work is in the public domain. Probably 99% of all value to be gleaned by artists from all copyrights would be captured by these terms leaving the works to be exploited by others with creativity rather than by entertainment companies collecting rents. For another example of rent-seeking, see this post about the RIAA killing internet radio with royalties.

But most people reading this post already know all this and have chosen up sides on the IP debate. I cannot help that when I heard this wonderful Beatles remix my second thought was: "Love" is not all we need.

Update: I found the following video on Against Monopoly, a very interesting IP-skeptic blog that is well-worth checking out:

George Lucas Wants You To Work for Him for Free: George Lucas, ruthless ardent defender of his intellectual so-called property rights, is about to launch a redesigned website providing hundreds of Star Wars™ video clips along with the software to create mashups.
“Star Wars” fans can connect with the Force in ways they’ve only imagined beginning May 25, when launches a completely redesigned website that empowers fans to “mash-up” their homemade videos with hundreds of scenes from “Star Wars” movies; watch hundreds of fan-made “Star Wars” videos; and interact with “Star Wars” enthusiasts from around the world like never before.

With an innovative, interactive site that allows users to navigate to multiple “Star Wars” worlds, a new video focus, and groundbreaking “Web 2.0” features – including a unique online multi-media mixing platform from Eyespot – the new will unveil its redesigned website on May 25 to commemorate the 30th anniversary of the “Star Wars” Saga.

Among the most compelling features of the newly redesigned is the incorporation of an online video-editing tool provided by Eyespot. It allows users to add their own video shots to more than 250 scenes and music taken from all six “Star Wars” films and create their own “Star Wars” movies to share with others.
For more of this story, click here. According the Wall Street Journal this morning, the fan-created videos will run along with commercials "with Lucasfilm and Eyespot splitting the proceeds." Asked about why Lucasfilm will allow this use of their images, a spokesman said, "If someone wants to commercialize it, that's where we've drawn the line." So it's OK for Lucasfilm to commercialize the creative efforts of Star Wars ™fans, but not the other way around.

But the laugh is really going to be on Lucasfilm because, as we all know, people won't invest scarce time producing creative works that others want to watch without the financial incentives provided by intellectual "property" rights granted for "limited times" (i.e. in perpetuity). So it is safe to predict that no one will contribute any mashups to the new website. Boy, will that be embarrassing for them!

PS: Don't Google™ "Starwars mashup" unless you want to see a bunch of amateurish uses of Star Wars™ clips, like this one, that are taking food out of the mouth of George Lucas, depriving him of the opportunity to commercially exploit his own us of Star Wars™ clips as mashups, and preventing him from raising the funds that are needed to make a watchable entertaining feature-length Star Wars™ film:

Madison on So-Called IP: In the course of finishing my casebook on constitutional law, I was reading James Madison's "Detached Memorandum" that was discovered in 1946. It ranges over many topics including that of monopoly, in which category he includes the protection for authors and inventors that, on his motion, was included in the Constitution. The passage makes clear that he does not see this grant of monopoly as "property" given that it is granted for strictly limited times, and that it might be a good idea if the State had the right to buy it back:
Monoplies tho' in certain cases useful ought to be granted with caution, and guarded with strictness agst abuse. The Constitution of the U. S. has limited them to two cases, the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withold from public use. There can be no just objection to a temporary monopoly in these cases: but it ought to be temporary, because under that limitation a sufficient recompence and encouragement may be given. The limitation is particularly proper in the case of inventions, because they grow so much out of preceding ones that there is the less merit in the authors: and because for the same reason, the discovery might be expected in a short time from other hands.

Monopolies have been granted in other Countries, and by some of the States in this, on another principle, that of supporting some useful undertaking until1 experience and success should render the monopoly unnecessary, & lead to a salutary competition. . . . But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good.

In all cases of monopoly, not excepting those specified in favor of authors & inventors, it would be well to reserve to the State, a right to terminate the monopoly by paying a specified and reasonable sum [to the holder.] This would guard against the public discontents resulting from the exorbitant gains of individuals, and from the inconvenient restrictions combined with them.

Update: Eugene usefully points out that Madison referred to "literary property" in his Vices of the Political System of the United States. I think this is a fair point and a useful correction. Indeed re-reading the quote, I notice that Madison refers to the monopoly grant for limited times as "compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold from public use." So let me revise my point to the more limited observation that Madison saw these grants to be a narrow exception to the general objection to monopolies, that were dangerous and should be carefully limited. And however these limited grants are labeled, they do not have all the attributes we normally associate with tangible property. Given that they typically involved interference with the freedom of others to trade what was theirs, the sorts of monopolies to which the Founders strongly objected are not the same as the "monopoly" one has on one's own tangible property. And it is to this objection, Madison made a narrow exception to provide a public subsidy for writers and inventors.

Careful With Those Analogies:

A commenter on the Madison / IP thread uses the intellectual property/tangible property analogy to argue for injunctions against infringement of intellectual property (apparently including infringement that doesn't interfere with the owner's use of the property), and goes on to say (in response to another commenter's argument),

[T]he analogy to trespass does not require an actual dimunition of your own use. It's 1L property law that a trespass is actionable even if nothing is broken, if you're not home, if your use of the property is not denied in any way. The offense is crossing the property line.

Now, the amount, impact, and circumstances of the trespass relate to damages, but liability starts from crossing the property line. There's not, nor has there been, a requirement that the property owner's actual use be diminished for there to be a trespass, as opposed to, say, conversion.

I can't say with confidence when injunctions should or should not be available in intellectual property cases; here, I just want to alert people to a common problem with analogies -- the simple problem that the analogized-to body of law is often more complex than the analogizer suggests.

For instance, let's assume that intellectual property is analogous in important ways to tangible property. There are (at least) two important classes of tangible property: real estate and personal property (also known as chattels, and generally just referring to all tangible property that is not real estate).

The "1L property law" rule to which the commenter refers is a rule applicable to real estate. But the rule for tangible property is different: As Restatement (Second) of Torts § 218 puts it,

The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. In order that an actor who interferes with another's chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another's chattel is subject to liability only if his intermeddling is harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected as stated in Clause (c). Sufficient legal protection of the possessor's interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference.

See also Intel Corp. v. Hamidi, 71 P.3d 296, 302 (Cal. Supreme Ct. 2003).

Now maybe the rule as to personal property is wrong. Or maybe intellectual property is more analogous to real estate than to personal property. Or maybe many (most? all? some?) infringements of intellectual property are like those infringements of personal property rights that do warrant an injunction. Or maybe the analogies aren't really helpful here, and we should support injunctions against infringements of intellectual property for other reasons.

But the one thing that should be clear is that, even to the extent the intellectual property / tangible property analogy is sound (and it certainly is an analogy that's long been recognized in many respects by the law), we have to recognize that the analogized-to category is not legally homogeneous. Before we apply by analogy "1L property law" rules relevant to one class of tangible property, we should acknowledge that there are other rules relevant to another class of tangible property, and explain why we are choosing one sort of rule and not the other.

Literary Property:

I am no historian of early copyright, but my sense is that copyright was pretty broadly referred to as property in the late 1700s and early 1800s -- though if you search for this, you had best search for the term literary property, rather than the somewhat more modern intellectual property. Justin Hughes's Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson discusses this well.

This is entirely consistent with treating this kind of property differently from other kinds of property in certain ways -- for instance, treating it as limited in duration, or subject to certain kinds of use by strangers that would not be allowed for land. My point is simply that there is at least a broad and deep legal tradition of treating copyright as property; such a view is no modern innovation, as some have suggested.

Blackstone and Copyright and Patent as (Limited) Property:

Here, by the way, is Sir William Blackstone -- often a good guide to background legal principles as the Framing generation understood them -- on property in copyrights and patents:

There is still another species of property, which (if it subsists by the common law) being grounded on labour and invention is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke, and many others, to be founded on the personal labour of the occupant. And this is the right, which an author may be supposed to have in his own original literary compositions; so that no other person without his leave may publish or make profit of the copies. When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it, appears to be an invasion of that right.

Now the identity of a literary composition consists entirely in the sentiment and the language: the same conceptions, clothed in the same words, must necessarily be the same composition: and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's consent.

This consent may perhaps be tacitly given to all mankind, when, an author suffers his work to be published by another hand, without any claim or reserve of right, and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway: but, in case the author sells a single book, or totally grants the copyright, it hath been supposed, in the one case, that the buyer hath no more right to multiply copies of that book for sale, than he hath to imitate for the like purpose the ticket which is bought for admission to an opera or a concert, and that, in the other, the whole property, with all it's exclusive rights, is perpetually transferred to the grantee.

On the other hand it is urged, that though the exclusive property of the manuscript, and all which it contains, undoubtedly belongs to the author, before it is printed or published; yet from the instant of publication, the exclusive right of an author or his assigns to the sole communication of his ideas immediately vanishes and evaporates; as being a right of too subtile and unsubstantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate.

The Roman law adjudged, that if one man wrote any thing on the paper or parchment of another, the writing should belong to the owner of the blank materials meaning thereby the mechanical operation of writing, for which it directed the scribe to receive a satisfaction; for in works of genius and invention, as in painting on another man's canvas, the same law gave the canvas to the painter. As to any other property in the works of the understanding, the law is silent; though the sale of literary copies, for the purposes of recital or multiplication, is certainly as antient as the times of Terence, Martial, and Statius. Neither with us in England hath there been (till very lately) any final determination upon the right of authors at the common law.

But whatever inherent copyright might have been supposed to subsist by the common law, the statute 8 Ann. c. 19 hath now declared that the author and his assigns shall have the sole liberty of printing and reprinting his works for the term of fourteen years, and no longer; and hath also protected that property by additional penalties and forfeitures: directing farther, that if, at the end of that term, the author himself be living, the right shall then return to him for another term of the same duration: and a similar privilege is extended to the inventors of prints and engravings, for the term of eight and twenty years, by the statute 8 Geo. II. c. 13, and 7 Geo. III. c. 38, besides an action for damages, with double costs, by statute 17 Geo. III. c. 57. All which parliamentary protections appear to have been suggested by the exception in the statute of monopolies, 21 Jac., I. c. 3, which allows a royal patent of privilege to be granted for fourteen years to any inventor of a new manufacture, for the sole working or making of the same; by virtue whereof it is held, that a temporary property therein becomes vested in the king's patentee.