Locke Was Right: Intellectual Property, Natural Law and AI (A 2026 Follow-Up)

Editor’s Note: In November 2017, this blog started a series asking whether intellectual property law still mattered in a “high speed digital age.” My intern at the time, Lucas Evans, wrote the opening piece, and it holds up remarkably well. It called artificial intelligence a coming force in the economy before most of Music Row had heard of it. Nine years later, AI is here. Below is my follow-up, which takes up the questions we’ve been working through on the Gavel Drop.

In 2017 we asked whether intellectual property law was still relevant. In 2026 the question has turned around: whether the people who make things will get to keep what they make.

The 2017 article had two reasons why IP law mattered: the internet was everywhere, and “artificially intelligent machines” were coming into the workplace. It predicted that as machines took over routine work, “the value we bring to the workplace and to the world will increasingly be defined by our capacity to be creative.”

That part was right. The part nobody saw coming was that the machines wouldn’t just take the routine work. They would take the creative work too, trained on the very songs, books and lyrics that human beings spent their lives writing.

Where We Got It Half Right

The original article told the story of a 1600s settler building a cabin in the colonial woods. It asked what makes the cabin his. Then it said this:

“And it’s not some natural law that protects the cabin. In the absence of government, nothing would prevent a gang of bandits from killing him and taking it.”

A few paragraphs later it quoted John Locke’s Second Treatise of Government: “every man has a property in his own person,” and “the labour of his body, and the work of his hands, we may say, are properly his.”

I want to pull those two ideas apart, because the whole AI fight sits in the gap between them.

The bandits can take the cabin. That’s true. But the fact that someone can take a thing has never told us whether it was theirs to take. Locke’s point was not that government creates property. His point was the opposite. When a person mixes her labor with the world and brings out something that didn’t exist before, it is hers by right, and the law’s job is to recognize that right. The law doesn’t create it. The bandits don’t own the cabin. They just have it.

That distinction mattered in 2017. In 2026 it is the whole case.

Copyright’s Two Souls

As I’ve said on the Gavel Drop, American copyright has two souls living in one body, and they have never fully made peace.

The first soul is in the Constitution. Article I, Section 8, Clause 8 gives Congress the power “to promote the Progress of Science and useful Arts” by securing to authors, “for limited Times,” the exclusive right to their writings. On that view, copyright is a bargain. Society grants a temporary monopoly because it encourages people to create. This is Jefferson’s soul. In his 1813 letter to Isaac McPherson, which the 2017 article quoted at length, he said ideas spread “like fire” and that society “may or may not” grant exclusive rights “according to the will and convenience of the society.”

The second soul is older than the Constitution. It runs back through Blackstone and Locke, and it says the author’s right doesn’t begin with the government’s grant. A song is the fruit of a writer’s labor the same way the harvest is the fruit of the farmer’s. This is closer to Madison’s soul. He wrote that a man “has a property in his opinions and the free communication of them.”

Here’s why that matters now. The artificial intelligence industry has built its whole defense on the first soul, and it would very much like you to forget the second.

Listen to the arguments. Progress. Innovation. The greater good. Information wants to be free. The old rules were built for a slower world. And besides, you can find those lyrics anywhere on the internet. Every one of those is a utilitarian argument. Each one asks you to weigh the songwriter’s claim against some larger social benefit and find the songwriter wanting.

The natural-law tradition answers all of them in five words: It was not yours to take.

It doesn’t matter how impressive the machine is or how transformative the output is. It doesn’t matter that the lyrics are “freely available” either. Lyric websites pay for the right to display those lyrics. Publicly accessible has never meant publicly owned. The natural-law question isn’t about consequences. It’s about consent. Was the work taken, or was it given?

The Courts Are Finding the Second Soul

What strikes me about the past eighteen months is that the courts keep coming back to that older principle, even when they use the language of the newer one.

The book decision. In Bartz v. Anthropic (N.D. Cal. 2025), Judge William Alsup was generous to the AI side on training. He found that using books to teach a model was transformative. But he drew a bright line at how the copies were obtained. Downloading millions of books from pirate libraries was not fair use. It was, in the court’s words, “straightforward piracy.” The case then settled for roughly $1.5 billion. Whether the court would put it this way or not, that is a natural-law distinction dressed in fair-use doctrine: you cannot build even a useful thing on a foundation of theft.

The memory of a machine. In November 2025, the Regional Court of Munich ruled for GEMA, Germany’s collecting society, against OpenAI. It held that memorizing song lyrics into a model’s parameters is a reproduction, and that it is “irrelevant” that the lyrics exist only as probability values. That decision is first-instance and not binding here, but two legal systems on two continents are reaching for the same intuition: the memory of a machine is not a loophole.

The songbook goes to court. In August 2026, Sony Music Publishing and Warner Chappell sued Anthropic in San Jose over song lyrics. Canada’s SOCAN has sued Suno in Toronto, calling it an unlicensed streaming service. And the major labels are still fighting Suno in Boston. You can hear the second soul in those pleadings. When the publishers write that songwriters “depend on this compensation to earn a living,” that’s Locke. When SOCAN says creators “were never asked, never informed, and never given the chance to say no,” that isn’t the language of a licensing dispute. It’s the language of a taking.

And the license that looks like a confession. When Suno retired its old models and launched a new one trained on licensed music from Warner, BMG and Believe, it proved the point. For two years the industry said asking permission was impossible. Then one of them asked, paid, and shipped a product. Consent is no longer a philosophical position. It’s a working market.

The Principle Cuts Both Ways

This is the part I didn’t fully appreciate until we worked through it on a recent episode.

The same Lockean principle that makes unlicensed training a taking also explains why a purely machine-made song belongs to nobody. Copyright is the law’s way of recognizing human labor. Where a human labored, the law protects the result. Where no human did, there’s nothing to protect.

The law has landed in the same place. The Copyright Office’s 2025 report on copyrightability says prompts alone aren’t enough human authorship. In March 2026, the Supreme Court declined to hear Thaler v. Perlmutter, which leaves standing the rule that a machine cannot be an author. What you write, what you compose and what you genuinely select and arrange is yours. What the machine generates from your prompt is, on current law, no one’s.

That’s not a loophole. It’s the law doing what Locke said it should: recognizing a person’s labor and refusing to invent a right where no person labored. The AI industry wants it both ways. It argues that training doesn’t need the human author’s consent, and then argues that the output should carry a human author’s rights. So far, the law isn’t giving it both.

The Honest Counterpoint

In fairness, there is a serious case on the other side. Jefferson wasn’t wrong that ideas are non-rivalrous, and the 2017 article was right to take him seriously. Copyright has never protected ideas, styles or genres, only expression, and it shouldn’t start now. Many scholars argue that training on lawfully acquired works is closer to reading than copying. Bartz itself agreed on that point. Others argue the Copyright Office’s line on AI-assisted works under-protects people who put real creative judgment into iterating with these tools. Cases like Allen v. Perlmutter may move that line. And other countries, including the U.K. and China, have taken different approaches to computer-generated works.

Those are real arguments, and the courts will spend years on them. But none of them answers the threshold question of consent. Where a work was pirated, scraped past a license, or memorized and handed back on request, the utilitarian case is answering a question nobody asked.

What This Means on Music Row

For the writers, artists, producers and publishers we represent, here is the practical version:

• Provenance is everything. Chain of title has always mattered on Music Row. Now it matters for the machines too. Ask any AI tool you use what it trained on and whether it was licensed.
• Keep your human authorship visible. Write your own lyrics and top lines. Save your sessions, stems and dated versions. When you register, disclose the AI material and claim what’s yours.
• Negotiate AI on purpose. Training rights, output rights and voice/likeness rights are now separate line items in publishing, label and producer agreements. Here in Tennessee, the ELVIS Act adds voice and likeness protection on top of copyright.
• Know your PRO. Look at who’s winning these cases: GEMA, SOCAN, the publishers. Collectives with organized catalogs. Make sure your works are registered and your splits are filed.

Back to the Cabin

In 2017 we said it wasn’t natural law that protected the settler’s cabin. It was government. I’d put it differently today. Government is what enforces the right. Natural law is why there’s a right to enforce. The bandits could always take the cabin. The question has always been whether anyone should pretend it was theirs.

A song is that settler’s cabin. The writer cleared the land, cut the boards and built something out of nothing but talent and labor and the ache to say something true. Machines can now take it apart and rebuild it in seconds. That doesn’t change whose it is.

Is intellectual property law relevant in the age of AI? It has never been more relevant. And John Locke has never been more right.

Barry Neil Shrum is an entertainment attorney with Shrum & Associates, PC (Shrum Disney & Associates) in Nashville and teaches music industry contracts and copyright at Belmont University’s Curb College of Entertainment & Music Business. He hosts the Gavel Drop on Music Row Dealmakers. Read more on Substack.

Related: Intellectual Property Law: Is it relevant in today’s high speed digital age? (November 2017)

This article is general information, not legal advice. If you have a specific dispute or contract question, consult a lawyer licensed in your jurisdiction.