Thou Shalt Not Share? Biological Notions in Intellectual Property Law

Abstract

Music companies do not want to share the music they own without being recompensed. As P2P users do not pay for copyrighted music, they infringe copyright law. However, P2P users claim that music companies are “intermeddling usurpers” that initiate lawsuits against fans and enrich themselves through “unfair domination over audiences”. James Grimmelmann argues that the claims of either side as well as a number of other claims are essentially rhetorical constructs: “Perhaps philosophers might try to give one of those claims a firm grounding.”

In this article this problem of grounding is analyzed from the biological law theory perspective that was described in A Biological Theory of Law. According to that theory, our ethical considerations are based on the reproductive potential of our genes. As that potential is highest when we cooperate in groups, we should seek (and find) this ethical foundation in how group behavior can optimize survival. The theory connects to one of the assumptions of game theory Oliver Goodenough and Gregory Decker refer to, namely “that our social judgments are often rooted in dilemmas around cooperative opportunities”.

Society needs creators to develop. It also needs creations to be imitated and shared. This is why it is as important to honor and reward the creators as it is to imitate and share their work. The default ethical vision of copyright law is that exchanges must be “voluntary on both sides, reciprocal and respectful”. At the same time creators are expected to share their new discoveries. Music companies are facilitators, not creators. They are in the trading business, so they need to be smart about how they trade their goods. In the 1970s it was smart to make albums that could not be copied easily (LPs). Nowadays it is smart to use the Internet as an outlet.

Sharing is fundamental to people and it cannot easily be suppressed. In addition, the goal of United States Constitution is “to promote the progress of science and useful arts”. To that end, creators need to be honored and rewarded. Lawsuits against P2P sharers or facilitators will be counterproductive. Biological law theory predicts that the prohibition of P2P sharing (or of facilitating P2P sharing) will eventually not hold. It runs counter to strong biological urges and predispositions that bind society together. Music companies should develop smart alternative trade systems for making money with the products of our honored creators.

Keywords: intellectual property, biological, basic notions, sharing, P2P, natural law theory, reproduction, imitation, creator, creativity