Of Folk Tales and Intellectual Property

As the year winds down, I’ve been thinking how a traditional folk tale illuminates the folly of expanding copyright, trademark and patent rights. In particular, I find this explains why I find the lawsuits against Google Library so annoying and wrong-headed.

A version of this folk tale exists in just about every European, Middle Eastern and Asian folk tradition. It tends to get attributed to your culture’s resident wise man or wise fool. I learnd it first as a Solomon story.

Once a poor man walked down the streets, weak with hunger. As he passed a bakery, he paused to smell the aroma of baking bread. Hmmmm…..it was delicious. I took another deep breath. Ahhhh. Wonderful. Straightening, he took one last deep breath and prepared to move on.

Before the poor man could move, the baker ran out of the store yelling “Stop Thief!” Siezing hold of the startled poor man the baker shook him roughly and said “Pay thief.”

“For what?” Asked the poor man.

“For the smell of the bread.” Answered the Baer.

“What?” Said the poor man. “Whoever heard of paying for the smell of the bread? Now if I had taken your bread and eaten it, I would of course have paid. But I have no money, so I merely smelled the aroma of the bread baking as I passed.”

“Aha!” Said the Baker. “You admit you went out of your way to smell the aroma of my baking bread. Now let me tell you, I work hard to make the smell of the bread. I rise at four in the morning. I gather the wood for the fire. I pay for the finest flour and the best ingredients. I mix everything just so. Only after all this labor do I put the dough in the oven, where it makes its smell. Yet you would compensate me for none of this labor! Thief, I say. I will not let you go until you pay.”

“But you do not do this labor to make bread smell! You do this labor to make bread, which you sell for a good price. In this way are your efforts repaid. The smell comes whether you want it or not. You cannot have the bread without making the smell, which drifts on the wind free as air.”

Still the baker would not let him go. “Maybe so, maybe so,” said the Baker. “But you did more than just walk by. You stopped to smell the bread. You got benefit from my labor. Why should you not pay.”

A crowd had gathered as the men spoke. And while some said the Poor Man spoke truth, others said the Baker also spoke truth. After all, should the poor man enjoy the sweat of te Baker’s brow for free? So they resolved to take the matter to King Solomon, the wisest man on Earth, for him to judge.

The Baker and the Poor Man went to Solomon and each told their tale. When Solomon had heard their tale, he thought a moment. Then, he took some coins from his pocket and gave them to the Poor Man.

“Take these coins,” said Solomon. “And jingle them by the ear of the Baker.” When the Poor Man had done so, Solomon looked at the Baker and said: “As you have now received your payment, why do you stand about here? Depart!”

The Baker looked at the King astonished. “But our majesty,” said the Baker. “I have received nothing.”

“Nonesense,” replied the King. “Just as the Poor Man received the smell of the bread, you have been paid with the sound of the money.”

More and more, I keep thinking of this folk story in the context of the expansion of copyright and particularly the Google Library law suit. Google proposes scanning books to make them searchable, but not obtainable. When libraries used to put these on index cards, or people used to publish inidcies and concordances, no one complained But, because it is Google and Google stands to benefit from the deal, publishers and some authors decide they deserve a cut of the profits.

Like the baker with the smell of the bread, these copyright holders believe they are entitled not merely to their traditional profits from the sale of the book, from every incidental way in which the copyright material could make money. On the one hand, this seems ridiculous. After all, no one has ever charged for the ability to search for a book before. Yet the logic has a certain appeal. After all, isn’t Google “profiting” from the copyrighted work of the rights holder? Why shouldn’t the rights holder get a cut?

But, like the baker in the tale, the rights holder misunderstand their right. A baker has the right to sell bread. There are certain incidental things that happen along the way. But the thing the baker owns is the bread, and is compensated by selling the bread.

The same thing is true of copyright. Copyright (and patent and trademark as well) is a creature of law. You have the rights defined by law, and get compensated thereby. In the case of books, that is the right to sell books. Once. Period. You also have the right to any “derivitive work,” taking the written text and transmuting it to another medium (or producing something so directly associated that readers will mistake it for a sequel). But copyright does not confer a right to every incidental thing that could concievably provide income or benefit.

Sadly, however, we find ourselves increasingly lacking in Solomons to set the baker right. If we were updating the parable, the Baker would go daily to the King, giving him choice presents, flatterng him, and telling the King how necessary it is to give bakers everywhere the right to charge for the smell of bread. After all, the Baker would argue, don’t you believe in rewarding people for their hard work? And eventually the King would pass a law saying that while just walking by a Bakery did not violate the rights of Bakers, Bakers could build walls and charge tolls within smell distance to protect their “smell property.” And Bakers would explain that while normal breathing after you buy a roll is o.k., actual deep breathing or inviting friends over to share your loaf is just as bad as stealing the bread in the first place.

Happy New Year. Don’t forget to stop and smell the bread now and then. While you can.

Stay tuned . . . .

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  1. Milhouse says:

    Well, a baker is entitled to build a wall to contain the smell, and charge an entrance fee to his bakery. Just as a stadium is entitled to build a high wall to prevent the neighbours from looking in, and a concert hall is entitled to build soundproof walls to prevent people standing outside from hearing the music. What they’re not entitled to do is neglect to build these walls, and insist that people outside whom the smell, sight or sound reaches must pay.

  2. John says:

    When I was a young man back in graduate school I remember reading a case of a person who owned some farmland. Next to the farm land their ran a power line which emitted a magnetic field. The land owner built a transducer which converted the magnetic fluctuations into usable energy.

    The power company sued him, claiming he was stealing electricity, and won.

    It seemed to me then and seemed to me now that this was an outrageous decision. The landowner was powerless to prevent the electric company from poluting his land with electromagnetic waves — a situation that I’m sure Howard will relate to. And yet they claimed they were the injured party, when he cleaned up what was to him, essentially, waste deposited by a corporation on his property.

    Clearly the situation is differently now in the world, when poor hungry men are still poor hungry men, but the bakers are corporations.

    Let’s pray that there are still a few solomons about.

    And that they prevail, at least a little, in 2006.

  3. Stearns says:

    Well done, all. I agree with all that was written. But there’s something implied in the Solomon story that I had not considered before. Solomon did acknowledge the baker’s labor. It even cost Solomon a few coins to do so. Maybe this was mere mockery: did King Solomon mock in general? I’m guessing not. Or does the story teach us that it is important to provide some sort of acknowledgement and payment-in-kind? For example, when someone takes the time to make way for us, we don’t pay them, but we do say “Thank you.” When isolated in our cars, we wave. Maybe this story is saying that such acknowledgement is important. Maybe we can incorporate that into our legal model.

    There is also an implication here that there is more than one kind of value, and that money is not the measure of all. I’ve rambled ill-formed about this at http://www.wetmachine.com/i

    Separately, we’re all ignoring advertising. The baker can build a wall if he wants to, but he’ll probably sell less bread. A point that the copyright holders would do well to remember! Now, the baker would pay good money to advertise on a billboard, TV, or some other medium where there is a social contract implying that the audience accepts advertising. In many cases, we have decided as a society that we should be able to shield ourselves of the onslaught of advertising – in our homes, a park, a church… I feel that if the baker insists on charging me for my indirect and non-consuming use of the fruit of his labor, then surely I must be able to charge him for the use of my nostrils in advertising his wares! No. Better, I think, to base the exchange of real money on real value, real consumption, and real scarcity, rather than on imaginary, unenforceable “rights” made existent only by artificial law. See http://www.wetmachine.com/i

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