musical ontology and IP

Miscellaneous General
1

The other day I was reading about the problem of musical ontology and started thinking about how this “philosophical” problem is at the root of intellectual property conversations. By musical ontology, I mean the boundaries and essenses which constitute a musical thing - is Stravinsky’s Right of Spring the score, the performance, the abstracted melodo-harmonic structure, or the totality of these things? Any attempt to define the ontology of music leaves something to be desired. For example, a nominalist would say that the musical work is made up of the various concrete aspects (score, performance, recording), but run into trouble when mistakes and deviations from the score present themselves in performance. Are wrong notes simultaneously part of a piece with correct notes? (See here for more on musical ontology).

My feeling on musical ontology though, is that its not a real problem. I remember going to the planetarium and being told to look right next to the fainter starts, because focusing on them directly made them “disapear.” This metaphor extends to a lot of philosophical problems - the intense focus on the subject creates a problem that needn’t be if we only relaxed our scrutiny. We can write, play, listen to and talk about music without addressing its ontological status, and we do it with varying degrees of precision and metaphor. At the same time, it can very quickly become a problem when blurry and questionable ontologies become reified and chained to real forces like intellectual property laws. This is the realm where economics can make true or false claims - “this law will have the opposite effect than your intent” or “this law will have the effect you intend, but will also have unintended consequences.”

Too often, the focus of the intellectual property conversation is on the ontological status though, which makes both sides of the debate seem absurd. IP advocates focus on the abstract at the sake of the concrete, and opponents focus on the concrete at the sake of the abstract. In the former, we see the destruction of material property in order to maintain the integrity of an idealized work. In the latter, we see a disregard towards creation in the abstract in order to protect property.

When IP opponents talk about attributing works to the creator as opposed to granting ownership, they are affording a certain ontological status to the work out of thin air while still applying a strict rationalistic conception of property. Its not clear that the creator should be attributed anything at all without first addressing what, exactly, he created. And if he did in fact create something, then the rationalistic approach to property seems lacking.

To be clear, I’m neither defending nor attacking IP. In meaningful language, I think its fair to say that IP laws do more harm than good. However, when we consider the reversal of negative laws, we have to be cognizant of the historical context which never maintains ceteris paribus. This warning applies to a good deal of the constructivist attitudes libertarians tend to adopt - although grounded in positive economic law, it sometimes fails to account for unintended effects.

2

Good thoughts on ip. I would say that “right of spring” is a label that could faithfully be applied to the original work, a transcription, any distinctive riff or musical phrase, and any performance of the work in recognizable form. As for “original work” I am referring to when stravinsky first authored the piece, when he was also the first audience member, and the initial release, whether it be performance, transcription, or eavesdropping. Most these occurrences of “right of spring” are ontologically different, but they are all “right of spring” in the sense that the unique audio pattern that stravinsky created is essential in each one.

3

I don’t get it what IP has to do with all of this.

4

I think thats as good of an approach as any other for the sake of conversation. Like I said, we just don’t have a real problem trying to convey meaning when we say “Right of Spring,” so trying to put it in its place is more like solving a puzzle for the sake of solving it than uncovering a philosophical truth. My concern is when we take yours or any other useful conception and try to bend the real world to it. That attitude is THE source of unintended consequences.

I was trying to be somewhat relevent to the Mises forums, so it was a little shoehorned, but IP depends on some conception of what the hell we are even talking about. If we don’t know what a song, or book, or idea is, than its a litle premature to say “that can or can’t be property.”

(edit: added response)

5

well, but we know what property is. Furthemore, we know, what IP is and what it means to protect it. We also know, that ideas are not rivalrous or scarce, they are merely concepts, but not physical things. All you do is try to confuse the language, as if no one ever thought about it when it’s clearly not the case.

6

I do not know what IP is. Are patents limited to a jurisdiction, or do they have moral effect for all time? What defines a kleenex? Or a q-tip?
If I use a patented idea in a noncommercial activity, is it still a patent violation? What would the damages be? And what if I invent something and someone else patents it? Did I cede my right to the IP because I didnt have a peculiar and specific transaction with the state? Is not that the property, actually, An enforcement contract on a specific idea or practice? So now we have to define the limits of an idea as property. Are you suggesting that all of these questions have clearly defined answers?

7

You are talking more about IP laws, which are an unknown territory for me too. All IP laws are ambiguous and without any justification. But yeah, some peoples’ (pro-IP) definitions are confusing and even absurd. Noted.

8

Would IP exist without laws to create it?

9

Well done, Mikachusetts. I considered this exact conundrum a few months ago. The problem is considerably more difficult than most people make it out to be.

You’re not at a solution–neither am I, but the first steps are the most important.

10

MaikU,

Property must be scare and rivalrous, ideas are neither, therefore ideas can’t be property - this is the basic claim, right? But there is a huge assumption here - that the “things” we are talking about are just ideas and nothing else - and this is the issue illustrated in musical ontology.

This isn’t a problem if you aren’t trying to prove anything, but the minute you try to say that songs, literature, etc. CAN’T be owned you have to be able to say what a song is in a very exact way. So when you say a song can’t be owned just because its an idea, I want to know how you know its just an idea.

11

For ordinary property, title is a claim to a particular physical object. For example “I own this Coach bag”. This is significantly different from “I own Coach bag”, which is essentially the claim of the Coach brand owner. IP is always a claim to ownership of a class of physical objects that has some accepted illusion of legitimacy. If someone filed a patent on the color red and claimed intellectual property rights in all red objects, he would be laughed to shame. But filing patent on a hex-headed screw and drive is logically indistinguishable vis-a-vis the class-like nature of the property title. The owner claims to have a property right in all physical objects which could be fashioned into a hex-head screw or hex-head screwdriver… namely, that no one may fashion such a screw or screwdriver without the permission of the patent owner. This is ludicrous.

The problem goes back to defining the valid means of acquiring property: original appropriation or voluntary exchange (or gift). For ordinary property, there are no other valid means of acquisition… any other means of acquisition would be the result of tortious action. But with IP, there is some other form of property acuisition whereby partial rights are held in all physical objects to the extent they can be fashioned into a pattern that would cause them to fall under the definition of the IP in question, and full rights are held in all physical objects which do, in fact, fall under the definition of the IP in question.

MGM holds partial property rights in every blank DVD - namely, the right to prohibit you from impriting certain patterns on that DVD. And MGM holds full property rights in every DVD which has been imprinted with certain patterns.

Clayton -

12

No, songs per se are not ideas, they are patterns, arrangment of notes (if we exclude noise music etc.)

I am a materialist/rationalist, so it’s not hard for me to claim, that song isn’t a physical rivalrous and scarce material that can be owned by someone (I mean “owned” in a way, that other people can be excluded from using it). You seem to talk more about attribution of songs, then yes, maybe some people originally “created” one pattern or the other and they are legitimate authors of it. But attribution can be easily handled under libertarian law. Only with IP, as exclusive property, there is a problem, because it creates artificial monopoly on things that are not scarce, things, that all people can use is simultaneously without restricting other people to do the same on their property.

There is no need to know what song is in a philosophical realm you talk about. One only needs to know where basic non-aggression principle comes from, that’s it. Is my singing of a song deprives you of the right to sing it simultaneously? No. The time you agree with this, you one step closer to the truth. And that’s not the same with cars, and other objects.

13

Define pattern in terms that make it a non-idea.

14

Define language without using any words.

15

I cannot. Should I take this to mean that you now define a song as a specific type of idea?

16

Well, I can always point you to the wikipedia article http://en.wikipedia.org/wiki/Pattern here… Idea is a much broader word. I prefer using narrow definitions, because it helps to avoid confusion while talking about such ambiguous things like IP (yeah, I agree, no one really knows what IP is actually.. it just means whatever one wants it to mean, as long as it helps him to exclude other people from using their own property in a certain way)

17

I have to nitpick here. It is the Rite of Spring in English. I’ve noticed that everyone who has mentioned is has spelled it as Right of Spring. This is my grammar nazi contribution of the day.

18

We are mostly in agreement, but my point is that if someone claims any specific idea as his property, even an idea as narrowly defined as a specific song, that person asserts the right to claim ideas as property. O one has provided a clear line to distinguish “private” ideas from common ideas.

19

This comes off as circular to me. Property is essentially defined as goods obtained non-tortiously, yet determining what constitutes a tort depends on what constitutes property.

I knew that. I probably type “right” so often that it just came out that way.

20

Ah, the good ole days… Information as Property.

It’s been a while since we’ve had an IP Fiesta here.