“How can it be permitted,” the pro-Jacobin Journal des Hommes libres has asked, that even though terror is the order of the day, “–… large amounts of false news circulate from the centre of Paris … and carry uncertainty into the minds of patriots and serenity into the souls of aristocrats?”
–Colin Jones, The Fall of Robespierre 146 (2021)
I recently tweeted that every sentence of this “explanation” of blockchain-based non-fungible tokens (NFTs) from the Harvard Business Review is false:
NFTs have fundamentally changed the market for digital assets. Historically there was no way to separate the “owner” of a digital artwork from someone who just saved a copy to their desktop. Markets can’t operate without clear property rights: Before someone can buy a good, it has to be clear who has the right to sell it, and once someone does buy, you need to be able to transfer ownership from the seller to the buyer. NFTs solve this problem by giving parties something they can agree represents ownership. In doing so, they make it possible to build markets around new types of transactions — buying and selling products that could never be sold before, or enabling transactions to happen in innovative ways that are more efficient and valuable.
In a follow-up thread, I expanded on why I am so skeptical about NFTs. I thought it would be useful to clean up and collect my thoughts in one place. I am a law professor who thinks a lot about digital property and about decentralized systems, and I think the idea that NFTs are about to revolutionize property law misunderstands how property law actually works.
Loosely speaking, there are three kinds of property you could use an NFT to try to control ownership of: physical things like houses, cars, or tungsten cubes; information like digital artworks; and intangible rights like corporate shares.
By default, buying an NFT “of” one of these three things doesn’t give you possession of them. Getting an NFT representing a tungsten cube doesn’t magically move the cube to your house. It’s still somewhere else in the world. If you want NFTs to actually control ownership of anything besides themselves, you need the legal system to back them up and say that whoever holds the NFT actually owns the thing.
Right now, the legal system doesn’t work that way. Transfer of an NFT doesn’t give you any legal rights in the thing. That’s not how IP and property work. Lawyers who know IP and property law are in pretty strong agreement on this.
It’s possible to imagine systems that would tie legal ownership to possession of an NFT. But they’re (1) not what most current NFTs do, (2) technically ambitious to the point of absurdity, and (3) profoundly dystopian. To see why, suppose we had a system that made the NFT on a blockchain legally authoritative for ownership of a copyright, or of an original object, etc. There would still be the enforcement problem of getting everyone to respect the owner’s rights.
There are two ways to enforce NFT “ownership.” The first is to get the legal system to do it. Judges would issue orders saying you own this widget because you have the Widget NFT, and then county sheriffs would show up to take possession of the widget and give it to you. The thing is, if you’re going to do that, there’s no point to the blockchain. We already have land registries, the DMV, and the Copyright Office. The blockchain is just an inefficient way of telling judges and sheriffs to do the same thing.
The other is to enforce everything digitally, by linking the physical world to the blockchain using secure digital hardware devices. That way, your car won’t start unless you prove ownership of the YourCar NFT. There are some serious downsides here. When your computer gets hacked, you also lose ownership of your car!
Sometimes, NFT advocates avoid dealing with the inconvenient fact that the physical world doesn’t run on a blockchain by shifting to a future in online spaces that do. They propose a blockchain-based metaverse, or online games with NFT-based economies, etc. The thing is that we’ve had digital property in those virtual spaces for decades. None of them needed a blockchain to work.
The bottom line is that almost1 everything NFT advocates want to do on a blockchain can be done more easily and efficiently without one, and the legal infrastructure needed to make NFTs work defeats the point of using a blockchain in the first place.
I say “almost” everything because NFT art may be an exception. A lot of the current hype around NFTs consists of the belief that the rest of the world will follow the same rules as NFT art. But of course part of the point of art is that it doesn’t follow the same rules as the rest of the world. ↩︎
Applying these principles, the court [in Armstrong v. Eagle Rock Entm’t, Inc., 655 F. Supp. 2d 779, 786 (E.D. Mich. 2009)] found that Eagle Rock Entertainment’s decision to use Louis Armstrong’s picture on the cover liner of its DVD entitled, ‘Mahavishnu Orchestra, Live at Montreux, 1984, 1974,’ without consent was protected by the First Amendment. Rosa & Raymond Parks Inst. for Self Development v. Target Corp., 90 F. Supp. 3d 1256, 1264 (2015).
Armstrong involved Ralphe Armstrong, not Louis Armstrong, who died in 1971.
The examiner’s final rejection, repeated in his Answer on appeal to the Patent and Trademark Office (PTO) Board of Appeals (board), was on the grounds that claims 1 and 2 are anticipated (fully met) by, and claim 3 would have been obvious from, an article by Kalabukhova and Mikheyew , Investigation of the Mechanical Properties of Ti-Mo-Ni Alloys, Russian Metallurgy (Metally) No. 3, pages 130-133 (1970) (in the court below and hereinafter called “the Russian article”) under 35 U.S.C. §§ 102 and 103, respectively. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 776 (Fed. Cir. 1985)
The author’s surname is Михеев, i.e., Mikheyev, not Mikheyew. There is no letter in the Cyrillic alphabet that transliterates to “w” under any commonly used system of Romanization.
GCC filed a trademark application for the mark GUANTANAMERA for use in connection with cigars on May, 14, 2001. When translated, “guantanamera” means “(i) the female adjectival form of GUANTANAMO, meaning having to do with or belonging to the city or province of Guantanamo, Cuba; and/or (ii) a woman from the city or province of Guantanamo, Cuba.” (Op. U.S.P.T.O. at 2.) Many people are also familiar with the Cuban folk song, Guantanamera, which was originally recorded in 1966. (Id. at 12-13.) Guantanamera Cigar Co. v. Corporacion Habanos, SA, 729 F. Supp. 2d 246, 250 (D.D.C. 2010)
The first recording of “Guantanamera” (lyrics adapted by Julián Orbón from poetry by José Martí, music by Joseíto Fernández) was probably sometime in the 1930s by Fernández. It was released in the United States in two well-known versions in 1963, one by the Weavers (from a 1955 concert) and another by Pete Seeger. All of these predate the 1966 easy-listening version by the Sandpipers.
I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before.
If you are not familiar with Stallman and his long history of creating a hostile environment for women, I encourage you to read Selam Jie Gano’s long and courageous post detailing the testimony of those who were forced to deal with it and Sage Sharp’s Twitter thread with receipts. It wasn’t an open secret in tech, because it wasn’t even secret. Even as a junior programmer thousands of miles away and twenty years ago, I knew women who had been forced to deal with his clearly unwelcome advances, and men who shared techniques for keeping others safe from him. (According to rumor, ferns were particularly effective at warding him off, like a creepster crucifix.)
Some communities have a missing stair; Stallman was an open elevator shaft with a crocodile pit at the bottom. Usually when something is this flagrantly broken for so long, the building itself has structural problems. So it is in the free software community. Since its creation, it has been disproportionately and often overwhelmingly white and male. It has had a combative culture with hidden toxic power dynamics. And it has repeatedly given known harassers and abusers a home, making it a notoriously inhumane environment, particularly for women.
When Stallman resigned, I thought it might be the beginning of an important time of reckoning for the free software movement. I was heartened that the FSF appeared ready to continue its mission to promote user freedom. It was larger than its founder, and could carry on without him. And I hoped that this would be followed by the removal of other toxic figures from positions of leadership and influence, by a genuine commitment to listening to those they had harmed, and by a new flourishing of diversity in free software.
Apparently not. Stallman’s announcement shows that the FSF as an organiation has learned nothing from #metoo, and has squandered the opportunity for critical reflection his resignation provided. There are people of conscience who work at FSF, and thousands more around the world who have contributed their efforts to its projects over the years. It has been a privilege for me to learn from and be inspired by free software advocates and volunteers who take the vision of software freedom seriously, and who are committed to making it a meaningful reality for everyone worldwide, not just for an insular group of privileged white men with careers in computing. Reinstating Richard Stallman is a slap in the face to them and a betrayal of the trust they have extended. I am deeply sorry for them all.
I have been an FSF donor for years, but I will make no further donations or have any further involvement with the FSF in any form while Richard Stallman retains any association with it. Instead, I will support other organizations that better understand the vision of equality and inclusion that free software represents, and are committed to that vision in everything they do.
Richard Stallman has the same freedoms in respect of free software that anyone else does. He can run it for any purpose. He can study how it works, and modify it however he wants. He can redistribute copies to anyone. And he can distribute copies of his modified versions to anyone, along with the corresponding source code. Let that be enough. As a person, he deserves nothing less. But after what he has done, he deserves not one iota more.