Your own chunk of the moon

Slate has an article about private claims to lunar real estate. Until very recently, the question of private travel to the moon has been a theoretical one and claims to chunks of property on our satellite have either been in the realm of fantasy or scams. With increasing likelihood for commercial travel to the moon -- whether for tourism, homesteading, or helium-3 mining -- claims to acreage up there are becoming everless virtual and evermore plausible and deciding who gets to own and exploit the moon may actually become serious.

Until then, however, music will still share some vital qualities with lunar real estate. Music tends to the ephemeral -- is it located in the air molecules we push around, or in a score, or in storage media (scores, recordings), or is it a platonic ideal of some sort? -- and the ownership of a music is unclear. Does it belong to the composer or the performer or the passionate listener? Is it a gift channeled from (the) god(s)? Is it a state or public good or is it a gift to humankind? Can it be bought, bartered, or sold? Is it a gift without market value? Heck, even the very idea that one could own a music is far from clear.

Talking about music as property is always bound to be uncomfortable, and I suspect that we're in for some particularly uncomfortable times, as the parties with substantial material interests in this question are just getting warmed up.

In the western legal tradition, we've already been through three major historical steps in the development of ideas as properties. The first was biblical, in the Decalogue, in which God forbid the making of graven imagery (thus asserting state control over creative work) and in the latter books, in which authors receive attribution (again, the attribution is controlled by institutional apparatus; the veracity of those attributions has been controversial ever since). The second step was in the assertion of states, royal, republican, or authoritarian, that intellectual property was a public good to be licensed and authors were granted (very slowly, in the case of musicians), limited periods of limited control over their work, after which the work fell into a "public" domain (we owe the word "royalties" to this). The third stage came with the age of private capital, and private persons, individually and collectively, sought to create a number of measures and institutions designed to protect and extend rights as well as to maximize income from the protected properties. We're still somewhere in this stage, but witnessing significant changes in the circumstances: "legal persons", corporations, which do not live naturally long lives, are now asserting rights well beyond those demanded earlier by real persons and technological developments in the media and transmission methods for intellectual property are changing at breathtaking speed, with unclear implications for the future of control over and income generation from that property. Furthermore, we're witnessing an intense conflict between the beneficiaries of this third stage, associated still with a liberal assertion of rights around the turn of the 20th century, and those who view the new technological circumstances as an opportunity to move away from, if not eliminate, the notion of property, a liberal assertion in its own terms, but one connected with the turn of the 21st century. How this will all turn out is anyone's guess at the moment, but I think that the moment is an opportune one to step back from the legal questions and consider instead exactly what it is we would like to achieve from an assertion of property rights to intellectual property, and music in particular, and do so in ethical rather than legal terms.

The estimable Carl Stone has a nice item over at the New Music in the Box, about the appropriation of music by others into one's own work. There is indeed a long tradition of this in music (parody, anyone?), but the appropriation of mechanically or electronically recorded material seems to go several steps further, in that one is not borrowing a bit of code* from a piece of music (a tune, for example), but excising a vertical slice of a complete musical product, including both composition and performance or realization. The legal situation is heated, often turning on the question of the size of the borrowed sample ("how big is a musical breadbox?"), and has created a nice side job for a handful of academically-trained musicians in the creepily-named field of "forensic musicology"; likewise heated is the question of monetary returns from a sample. I think that this problem is eminently soluble, however. Creators of music differ on their degree of attachment to their work, with some unconcerned -- even enthusiastic -- about subsequent appropriation, others willing to sanction it based upon a fee, and other so attached to their work in a particular form that they wish that no appropriations be licensed, regardless of any fee proffered. I believe that there is an ethical responsibility to respect these wishes with regard to the creative work of an individual, simply because we recognize that a relationship to one's creative work can be intimate and intimate, and his or her music falls in a private sphere around a person that deserves protection regardless of the precise legal or economic status of the property. Furthermore, it is not difficult to assert -- via a notation in a score or a signature on some data format -- the precise wish of the composer: to permit all usage, to permit all licensed usage, or to limit usage to a particular instance.
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* I've had a long argument with open source advocates about music, among them Richard Stallman, that music is substantially different from software in that the source code of music is always open to anyone with ears, so that protecting property rights for music is not a barrier to the further development of the underlying codes.