This draft still needs a very thorough edit.

Yes, Professor, I apologize that I was not able to indicate that this paper is not yet ready.

STATUS: Not yet ready.

The Changing Concept of Property in the Internet Society – Why Downloading is Not Stealing

-- By AllanOng - 14 Nov 2009

We don’t go to a Virgin Record store, take a CD and walk out without having paid for it because we know that it’s stealing. Traditional intellectual property law would have us think to download a song or a movie using a peer to peer file sharing system such as Limewire amounts to stealing just the same. This would be true if the object that was taken, in the first case a CD and in the second case, data, were governed by the same rules, the same laws. Copyright law would say that indeed, both acts constitute the taking of property that belongs to another without the consent of the owner, and with the intent to deprive the owner of the value of the thing taken. But once the songs recorded in the CD are ripped and placed in the internet, it becomes pure data – no longer “property” as we understand it in the legal or the ordinary sense – and as such, should no longer be governed by the ordinary rules of property.

To begin with, intellectual property has never been considered the same as physical property in terms of the level of protection granted to it. While protection given to physical property is such that no person may be deprived of it without due process and when taken by the government can only be done with just compensation, the exclusive right to wrings and discoveries by authors and inventors are secured for them only for limited times – in order to promote the progress of science and useful arts. For authors and inventors to demand the same level of protection that is given to physical property is contrary to the intent even of the Constitution.

Physical property is protected against taking by another, primarily because it is a limited resource. Once the CD is taken, Virgin will have one less CD to sell. The store may have an inventory of 1 million CDs, but once you take one without paying for it, that is one less CD that it can sell. But the songs, as stored in the form of bitstreams in my laptop, do not become less when I share it with my friend – or with 1 million of my friends over in Limewire. Each “taking” done in Limewire does not diminish the bitstreams that I have. I remain fully able to exploit it for myself.

The law considers property to consist of a bundle of rights – the right to control the use of the property, to transfer or sell the property, to exclude others from the property, and to benefit from the property. But the nature of property has always been that one’s claim in the property is limited to the extent that one can control it. Possession is “nine-tenths of the law.” It provides evidence of ownership, and when a thing is possessed long enough, possession can transform into ownership. Conversely, when property has been reduced to mere bitstream, traditional rules of ownership cannot and should not apply to what has become mere bitstream. The party claiming ownership to the bitstream has lost all possession and control over it. Bitstreams can therefore not be subject to the same control as a plastic wrapped CD.

Still, it might offend our sense of propriety if we think that the persons who produced the piece of music may have allowed me to buy the CD and to store the content on my CD, and maybe to share it with a few friends, but maybe not 1 million of my friends. The problem with this argument is that human nature has always been against exclusivity of ideas. Sharing is, and has always been, an “activity deeply cherished in any free society.” In academic and professional institutions, substantial efforts are made in order for there to be sharing of institutional knowledge – from mentorship programs to the networking of computers to make work product searchable and copy-able. The development of a family and of a nation has always been the passing on of an identity and a body of knowledge, whether of the Western canon or a recipe for chicken adobo, from one generation to another. The development of technology, from betamax players to peer to peer file sharing programs to Wikipedia, has always moved towards enabling others to benefit from one’s efforts. What is more, the object of this sharing is not a finite resource but a resource that cannot be exhausted. What is criminal is not the sharing of this resource but in the keeping of this resource locked up by commercial institutions.

The right of attribution should remain protected. But it is interesting to note that Copyright did not always exist – the concept originated with the Statute of Anne in Great Britian in 1710 – before this time, a person could create a character, say Don Quixote de la Mancha, and write a novel about his adventures and another person could write a sequel, as Alonso did for the work of Cervantes. And yet it is the sequel written by Cervantes that is immortal, not because of strong copyright protection but because of its sheer genius.

The change in the concept of property brought about by the transformation of works into bitstreams will profoundly change the way that we live and work. Increasingly, it is to the free sources of ideas, cultural products and discoveries that individuals are turning to. As the Internet reaches more people in the globe, it will be the individuals who are used to the business model of exclusion and exclusivity of access of cultural products who will be in the minority, because as the Internet spreads, it takes with it the culture of sharing and of a world where property in ideas and discoveries, as we understood it, has no more meaning.

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