Shitposty Thoughts on Non-Fungible Tokens
On the social construction of property
I don’t know anything about non-fungible tokens, but as far as I figure that puts me in the same category as most of the people who buy the damn things, so I feel fine about writing about them.
One criticism I’ve seen of non-fungible tokens is that you “own” something, but there’s no meaningful sense in which you actually own them. In fact, it’s kind of unclear what it would mean to say that you own a particular JPEG or the time Banksy lit a painting on fire or the concept of philosophy. It’s not like you can store philosophy in your house.
But you know what this made me think about? Conceptual art!
This is a picture of the conceptual art piece The Comedian, which sold for $120,000 at auction. It later played a role in the conceptual art piece Hungry Artist, where a performance artist took it off the wall and ate it. The banana was replaced later that day, restoring the artwork to its original glory (?).
Now, it is notable that both the duct tape and the banana in The Comedian are replaced regularly. The purchasers have not purchased this specific banana. They have purchased the concept of duct-taping bananas to walls. Therefore, we already have something quite like non-fungible tokens, in that they involve buying and selling abstract concepts.
So there are various interesting things we can learn from this. One is that the blockchain part of non-fungible tokens is, empirically, unnecessary. You can buy and sell abstract concepts with no involvement of crypto or blockchain whatsoever. Presumably, like almost every other use of blockchain, non-fungible tokens were just put on the blockchain because people don’t really understand what blockchains are, so you can go “our dating site is on the BLOCKCHAIN” and then they give you millions of dollars because they don’t want to admit to the other cool venture capitalists that they don’t know what a blockchain is except that they are pretty sure that computers and widespread environmental devastation are involved somehow. When this pluralistic ignorance is broken, then the entire crypto economy will crash and a bunch of alleged billionaires will shamefacedly have to go back to Facebook and devote the rest of their lives to making Messenger load 0.03 seconds faster. Trust me, I’m an investmentologist.
In my discussion of The Banana Duct-Taped To A Wall Problem, I have found that people tend to one of three positions.
First, the “bullet-biting” position, is that it is also meaningless to say that you own The Comedian. People spend money on it, but that doesn’t mean anything, because people also spend money on non-fungible tokens. If there’s one thing we’ve learned from the crypto economy it’s that people will spend money on unimaginable amounts of bullshit. This is merely another instance of bullshit among a different kind of rich person. Owning the concept of duct-taping a banana to the wall is no different than owning the concept of philosophy. They’re both stupid. This position is reasonable but not very funny.
Second, the “copyright” position, is that when we buy and sell The Comedian what we are in fact buying and selling is the intellectual property The Comedian. If I duct-tape a banana to the wall in my garage and sell tickets so that people can look at The Comedian, I might get sued. The owners of The Comedian can license out The Comedian so that people can duct-tape bananas to their own walls and claim that this is an instance of The Comedian. The Comedian can be bought and sold in the same sense that, say, Harry Potter can be bought and sold.
Interestingly, it’s clearly legal for me to duct-tape a banana to my wall and not claim it’s The Comedian, even if I duct-tape the banana in an identical fashion. Presumably the intellectual property here is in the title? Or maybe it’s some combination of things— the title, plus the act of duct-taping the banana to the wall, plus treating it as a display for people to look at? Has anyone been sued for copyright infringement of conceptual art?
I think it is possible to tell whether the “copyright” position is true, because conceptual art can enter the public domain. When it does, this theory predicts, its value would crater to zero, as everyone would be able to have as many copies of The Comedian as the grocery and hardware stores allow. Unfortunately, most conceptual art similar to The Comedian is pretty new, so I’m not sure if any of it has entered the public domain yet. We could maybe figure it out by tracking the prices of conceptual art: you’d expect the price to go down as the piece gets closer to entering the public domain and therefore becoming valueless.
Third, the “placard” position, is that what you purchase when you buy The Comedian is the social agreement that you own The Comedian. This agreement has real, concrete effects. It says on The Comedian’s Wikipedia page that one edition of it was purchased by Billy and Beatrice Cox, who then donated it to the Guggenheim. The Coxes were asked for their opinions on the value of The Comedian. Presumably they got to brag at rich people parties about their avant-garde taste in combinations of bananas and duct tape and thus show up their significantly less stylish archnemeses, who can only tape grapefruit to their walls. Probably the Guggenheim displays a tasteful placard near The Comedian saying that this banana can be displayed because of a generous donation from the Coxes.
Now, this presents a problem for non-fungible tokens, because while you can display a placard near a particular JPEG, there is no obvious way to display a placard next to the time Banksy lit a painting on fire (barring time travel) or the concept of philosophy. (Some people have told me that there are placards on ‘the blockchain’ but because I don’t know what the blockchain is and neither does anyone else I’m not taking this seriously.) If no placard can be displayed near the concept of philosophy, then there might be grave disagreement about who owns it. Maybe multiple people could claim to own philosophy, and we would have no way of adjudicating their claims.
However, I realized that there is an obvious place to put a placard for literally any concept worthy of a non-fungible token, which is the Wikipedia page. If the Wikipedia page for philosophy says that the concept of philosophy is owned by Billy and Beatrice Cox, then I’m sure we can all agree that it is, in some sense, actually owned by them.
(Some people have suggested that Wikipedia could use this power for fundraising. However, a moment’s thought shows as soon as Wikipedia begins to sell the placards it is no longer tracking the social agreement about who owns various concepts. Instead, it would be selling being listed on Wikipedia as owning a concept, which is a very different thing.)
What would the Coxes do with their hypothetical ownership of philosophy? Perhaps they could brag at rich-people parties about how they love learning and the life of the mind so much that they bought philosophy itself, therefore further showing up their less stylish archnemeses who can only own some inferior academic discipline like agricultural science. Maybe they can give talks about philosophy because of their special expertise as owners of the concept, perhaps at colleges or meetings of the American Philosophical Association. Really, there’s any number of possible applications.
Under the placard theory, the reason the Coxes can’t own the concept of philosophy and can own the concept of taping bananas to walls with duct tape is that we have, as a society, decided it makes sense to be able to buy and sell the latter and not the former. Therefore, only the latter can be listed on placards and/or Wikipedia pages, the true arbiter of ownership.
The placard theory suggests that NFT people are really barking up the wrong tree with all their crypto blockchain blockchain crypto. People owning JPEGs or the time Banksy burned a painting or philosophy isn’t a question of programming: it’s a question of persuasion.
So, I think it's important to recognize that the way Wikipedia got to the place it has as an authority for disputes its fundamental principles: encyclopediac content, written from a neutral point of view using reliable sources, that anyone can use, edit, and distribute. In particular the idea of depending on "reliable sources" means that in practice Wikipedia will be the last (or median) institution to change its definition of some controversial concept; you will have to get the newspapers and scientific publications to agree that the concept of philosophy can be owned before Wikipedia, according to its own guidelines, would agree to such a proposition.
I just think that's an interesting way of thinking about it.
As I understand it (although I'm not a lawyer, I should say) when you own property what you own is a bundle of (exclusive) rights, the specific rights depending on the type of property. So when you own land, you have the right (in general) exclude people from it—but not to build a toxic waste factory on it (or even an extension to your house). When you own a book, you have a right to the physical object, and can sell it, burn it, keep it, read it out loud to your kids—but not type the contents up and post them on the internet. When you own a copyright, you have the right to control who can copy a book—but not to repossess physical copies or get a cut of the sale of used ones.
All of that is straightforward enough, nothing that a solid semester of studying property in law school shouldn't clear up.
What exclusive right do you have when you own an NFT? I think you own only the right to say you own it. i.e. your placard theory. If there's anything else involved I've missed it.
As far as conceptual art goes, an interesting case to consider with conceptual art: artists, for practice if naught else, sometimes copy a painting in a museum (which the museums cooperate with). I suspect that good artists could produce a copy which is impossible to tell apart from the original by looking (i.e. without a chemical analysis of the type of paint, or whatever); at least one museum that I know of requires artists to make their copy at least 20% (IMS) different in size, either bigger or smaller, presumably to prevent theft. This strikes me as a useful comparison for conceptual art: duck-taping a banana to a wall is simply making a copy of The Comedian, as you might make a copy of the Mona Lisa or a Vermeer or whatever; it's just that The Comedian is a much, much easier artwork to copy than most. (For that matter, some modern art which is unquestionably painting and unquestionably a *thing* you can own is probably pretty easy to copy too.)