Chapter 1: Why Intellectual Property_The Public Domain: Enclosing the Commons of the Mind

Text harvesting and reformatting by Michael S. Hart and Gregory B. Newby.

The Public Domain

Enclosing the Commons of the Mind

by James Boyle

In this enlightening book James Boyle describes what he calls

the range wars of the information age--today's heated battles

over intellectual property. Boyle argues that just as every

informed citizen needs to know at least something about the

environment or civil rights, every citizen should also

understand intellectual property law. Why? Because intellectual

property rights mark out the ground rules of the information

society, and today's policies are unbalanced, unsupported by

evidence, and often detrimental to cultural access, free speech,

digital creativity, and scientific innovation.

Boyle identifies as a major problem the widespread failure to

understand the importance of the public domain--the realm of

material that everyone is free to use and share without

permission or fee. The public domain is as vital to innovation

and culture as the realm of material protected by intellectual

property rights, he asserts, and he calls for a movement akin to

the environmental movement to preserve it. With a clear analysis

of issues ranging from Jefferson's philosophy of innovation to

musical sampling, synthetic biology and Internet file sharing,

this timely book brings a positive new perspective to important

cultural and legal debates. If we continue to enclose the

"commons of the mind," Boyle argues, we will all be the poorer.

Professor James Boyle's website: www.thepublicdomain.org

James Boyle is William Neal Reynolds Professor of Law and co-

founder of the Center for the Study of the Public Domain Duke

Law School. He joined the faculty in July 2000. He has also

taught at American University, Yale, Harvard, and the University

of Pennsylvania Law School. He is the author of Shamans,

Software and Spleens: Law and Construction of the Information

Society and The Shakespeare Chronicles, a novel about the search

for the true author of Shakespeare's works. He co-authored Bound

By Law, (CSPD 2006) an educational comic book on fair use in

documentary film, and is the editor of Critical Legal Studies

(Dartmouth/NYU Press 1994), and Collected Papers on the Public

Domain (Duke: L&CP 2003). In 2003 he won the World Technology

Award for Law for his work on the "intellectual ecology" of the

public domain, and on the new "enclosure movement" that

threatens it; (a disappointing amount of which was foretold in

his 1996 New York Times article on the subject.) Professor

Boyle has written on legal and social theory, on issues ranging

from political correctness to constitutional interpretation and

from the social contract to the authorship debate in law and

literature.

For the last ten years, his work has focused on intellectual

property. His essays include The Second Enclosure Movement, a

study of the economic rhetoric of price discrimination in

digital commerce, and a Manifesto on WIPO. His shorter pieces

include Missing the Point on Microsoft, a speech to the

Federalist Society called Conservatives and Intellectual

Property, and numerous newspaper articles on law, technology

and culture. His book reviews on social theory and the

environment, the naturalistic fallacy in environmentalism, and

on competing approaches to copyright have appeared in the Times

Literary Supplement. He currently writes as an online columnist

for the Financial Times' New Economy Policy Forum. Professor

Boyle teaches Intellectual Property, the Constitution in

Cyberspace, Law and Literature, Jurisprudence and Torts. He is

a Board Member of Creative Commons which is working to

facilitate the free availability of art, scholarship, and

cultural materials by developing innovative, machine-readable

licenses that individuals and institutions can attach to their

work, and of Science Commons, which aims to expand the Creative

Commons mission into the realm of scientific and technical data.

He also leads the steering committee which is setting up the

Learning Commons, a division of Creative Commons aimed at

facilitating access to open education resources. He is a member

of the academic advisory boards of the Electronic Privacy and

Information Center, the Connexions open-source courseware

project, and of Public Knowledge. In 2006 he received the Duke

Bar Association Distinguished Teaching Award.

Yale University Press

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The Public Domain

Enclosing the Commons of the Mind

by James Boyle

Preface: Comprised of at Least Jelly?

Each person has a different breaking point. For one of my

students it was United States Patent number 6,004,596 for a

"Sealed Crustless Sandwich." In the curiously mangled form of

English that patent law produces, it was described this way:

A sealed crustless sandwich for providing a convenient

sandwich without an outer crust which can be stored for long

periods of time without a central filling from leaking

outwardly. The sandwich includes a lower bread portion, an upper

bread portion, an upper filling and a lower filling between the

lower and upper bread portions, a center filling sealed between

the upper and lower fillings, and a crimped edge along an outer

perimeter of the bread portions for sealing the fillings there

between. The upper and lower fillings are preferably comprised

of peanut butter and the center filling is comprised of at least

jelly. The center filling is prevented from radiating outwardly

into and through the bread portions from the surrounding peanut

butter.1

"But why does this upset you?" I asked; "you've seen much worse

than this." And he had. There are patents on human genes, on

auctions, on algorithms.2 The U.S. Olympic Committee has an

expansive right akin to a trademark over the word "Olympic" and

will not permit gay activists to hold a "Gay Olympic Games." The

Supreme Court sees no First Amendment problem with this.3

Margaret Mitchell's estate famously tried to use copyright to

prevent Gone With the Wind from being told from a slave's point

of view.4 The copyright over the words you are now reading will

not expire until seventy years after my death; the men die young

in my family, but still you will allow me to hope that this

might put it close to the year 2100. Congress periodically

considers legislative proposals that would allow the ownership

of facts.5 The Digital Millennium Copyright Act gives content

providers a whole array of legally protected digital fences to

enclose their work.6 In some cases it effectively removes the

privilege of fair use. Each day brings some new Internet horror

story about the excesses of intellectual property. Some of them

are even true. The list goes on and on. (By the end of this

book, I hope to have convinced you that this matters.) With all

of this going on, this enclosure movement of the mind, this

locking up of symbols and themes and facts and genes and ideas

(and eventually people), why get excited about the patenting of

a peanut butter and jelly sandwich? "I just thought that there

were limits," he said; "some things should be sacred."

This book is an attempt to tell the story of the battles over

intellectual property, the range wars of the information age. I

want to convince you that intellectual property is important,

that it is something that any informed citizen needs to know a

little about, in the same way that any informed citizen needs to

know at least something about the environment, or civil rights,

or the way the economy works. I will try my best to be fair, to

explain the issues and give both sides of the argument. Still,

you should know that this is more than mere description. In the

pages that follow, I try to show that current intellectual

property policy is overwhelmingly and tragically bad in ways

that everyone, and not just lawyers or economists, should care

about. We are making bad decisions that will have a negative

effect on our culture, our kids' schools, and our communications

networks; on free speech, medicine, and scientific research. We

are wasting some of the promise of the Internet, running the

risk of ruining an amazing system of scientific innovation,

carving out an intellectual property exemption to the First

Amendment. I do not write this as an enemy of intellectual

property, a dot-communist ready to end all property rights; in

fact, I am a fan. It is precisely because I am a fan that I am

so alarmed about the direction we are taking.

Still, the message of this book is neither doom nor gloom. None

of these decisions is irrevocable. The worst ones can still be

avoided altogether, and there are powerful counterweights in

both law and culture to the negative trends I describe here.

There are lots of reasons for optimism. I will get to most of

these later, but one bears mentioning now. Contrary to what

everyone has told you, the subject of intellectual property is

both accessible and interesting; what people can understand,

they can change--or pressure their legislators to change.

I stress this point because I want to challenge a kind of willed

ignorance. Every news story refers to intellectual property as

"arcane," "technical," or "abstruse" in the same way as they

referred to former attorney general Alberto Gonzales as

"controversial." It is a verbal tic and it serves to reinforce

the idea that this is something about which popular debate is

impossible. But it is also wrong. The central issues of

intellectual property are not technical, abstruse, or arcane. To

be sure, the rules of intellectual property law can be as

complex as a tax code (though they should not be). But at the

heart of intellectual property law are a set of ideas that a

ten-year-old can understand perfectly well. (While writing this

book, I checked this on a ten-year-old I then happened to have

around the house.) You do not need to be a scientist or an

economist or a lawyer to understand it. The stuff is also a lot

of fun to think about. I live in constant wonder that they pay

me to do so.

Should you be able to tell the story of Gone With the Wind from

a slave's point of view even if the author does not want you to?

Should the Dallas Cowboys be able to stop the release of Debbie

Does Dallas, a cheesy porno flick, in which the title character

brings great dishonor to a uniform similar to that worn by the

Dallas Cowboys Cheerleaders? (After all, the audience might end

up associating the Dallas Cowboys Cheerleaders with . . . well,

commodified sexuality.) 7

Should the U.S. Commerce Department be able to patent the genes

of a Guyami Indian woman who shows an unusual resistance to

leukemia?8 What would it mean to patent someone's genes, anyway?

Forbidding scientific research on the gene without the patent

holder's consent? Forbidding human reproduction? Can religions

secure copyrights over their scriptures? Even the ones they

claim to have been dictated by gods or aliens? Even if American

they use those copyrights to discipline heretics or critics who

insist on quoting the scripture in full?

Should anyone own the protocols--the agreed-upon common technical

standards--that make the Internet possible? Does reading a Web

page count as "copying" it?10 Should that question depend on

technical "facts" (for example, how long the page stays in your

browser's cache) or should it depend on some choice that we want

to make about the extent of the copyright holder's rights?

These questions may be hard, because the underlying moral and

political and economic issues need to be thought through. They

may be weird; alien scriptural dictation might qualify there.

They surely aren't uninteresting, although I admit to a certain

prejudice on that point. And some of them, like the design of

our telecommunications networks, or the patenting of human

genes, or the relationship between copyright and free speech,

are not merely interesting, they are important. It seems like a

bad idea to leave them to a few lawyers and lobbyists simply

because you are told they are "technical."

So the first goal of the book is to introduce you to

intellectual property, to explain why it matters, why it is the

legal form of the information age. The second goal is to

persuade you that our intellectual property policy is going the

wrong way; two roads are diverging and we are on the one that

doesn't lead to Rome.

The third goal is harder to explain. We have a simple word for,

and an intuitive understanding of, the complex reality of

"property." Admittedly, lawyers think about property differently

from the way lay-people do; this is only one of the strange

mental changes that law school brings. But everyone in our

society has a richly textured understanding of "mine" and

"thine," of rights of exclusion, of division of rights over the

same property (for example, between tenant and landlord), of

transfer of rights in part or in whole (for example, rental or

sale). But what about the opposite of property--property's

antonym, property's outside? What is it? Is it just stuff that

is not worth owning--abandoned junk? Stuff that is not yet

owned--such as a seashell on a public beach, about to be taken

home? Or stuff that cannot be owned--a human being, for example?

Or stuff that is collectively owned--would that be the radio

spectrum or a public park? Or stuff that is owned by no one,

such as the deep seabed or the moon? Property's outside, whether

it is "the public domain" or "the commons," turns out to be

harder to grasp than its inside. To the extent that we think

about property's outside, it tends to have a negative

connotation; we want to get stuff out of the lost-and-found

office and back into circulation as property. We talk of "the

tragedy of the commons,"11 meaning that unowned or collectively

owned resources will be managed poorly; the common pasture will

be overgrazed by the villagers' sheep because no one has an

incentive to hold back.

When the subject is intellectual property, this gap in our

knowledge turns out to be important because our intellectual

property system depends on a balance between what is property

and what is not. For a set of reasons that I will explain later,

"the opposite of property" is a concept that is much more

important when we come to the world of ideas, information,

expression, and invention. We want a lot of material to be in

the public domain, material that can be spread without property

rights. "The general rule of law is, that the noblest of human

productions--knowledge, truths ascertained, conceptions, and

ideas--become, after voluntary communication to others, free as

the air to common use."12 Our art, our culture, our science

depend on this public domain every bit as much as they depend on

intellectual property. The third goal of this book is to explore

property's outside, property's various antonyms, and to show how

we are undervaluing the public domain and the information

commons at the very moment in history when we need them most.

Academic articles and clever legal briefs cannot solve this

problem alone.

Instead, I argue that precisely because we are in the

information age, we need a movement--akin to the environmental

movement--to preserve the public domain. The explosion of

industrial technologies that threatened the environment also

taught us to recognize its value. The explosion of information

technologies has precipitated an intellectual land grab; it must

also teach us about both the existence and the value of the

public domain. This enlightenment does not happen by itself. The

environmentalists helped us to see the world differently, to see

that there was such a thing as "the environment" rather than

just my pond, your forest, his canal. We need to do the same

thing in the information environment.

We have to "invent" the public domain before we can save it.

A word about style. I am trying to write about complicated

issues, some of which have been neglected by academic

scholarship, while others have been catalogued in detail. I want

to advance the field, to piece together the story of the second

enclosure movement, to tell you something new about the balance

between property and its opposite. But I want to do so in a way

that is readable. For those in my profession, being readable is

a dangerous goal. You have never heard true condescension until

you have heard academics pronounce the word "popularizer." They

say it as Isadora Duncan might have said "dowdy." To be honest,

I share their concern. All too often, clarity is achieved by

leaving out the key qualification necessary to the argument, the

subtlety of meaning, the inconvenient empirical evidence.

My solution is not a terribly satisfactory one. A lot of

material has been exiled to endnotes. The endnotes for each

chapter also include a short guide to further reading. I have

used citations sparingly, but more widely than an author of a

popular book normally does, so that the scholarly audience can

trace out my reasoning. But the core of the argument is in the

text.

The second balance I have struggled to hit is that between

breadth and depth. The central thesis of the book is that the

line between intellectual property and the public domain is

important in every area of culture, science, and technology. As

a result, it ranges widely in subject matter. Yet readers come

with different backgrounds, interests, and bodies of knowledge.

As a result, the structure of the book is designed to facilitate

self-selection based on interest. The first three chapters and

the conclusion provide the theoretical basis. Each chapter

builds on those themes, but is also designed to be largely

freestanding. The readers who thrill to the idea that there

might be constitutional challenges to the regulation of digital

speech by copyright law may wallow in those arguments to their

hearts' content. Others may quickly grasp the gist and head on

for the story of how Ray Charles's voice ended up in a mashup

attacking President Bush, or the discussion of genetically

engineered bacteria that take photographs and are themselves the

subject of intellectual property rights. To those readers who

nevertheless conclude that I have failed to balance correctly

between precision and clarity, or breadth and depth, I offer my

apologies. I fear you may be right. It was not for want of

trying.

Chapter 1: Why Intellectual Property

Imagine yourself starting a society from scratch. Perhaps you

fought a revolution, or perhaps you led a party of adventurers

into some empty land, conveniently free of indigenous peoples.

Now your task is to make the society work. You have a preference

for democracy and liberty and you want a vibrant culture: a

culture with a little chunk of everything, one that offers

hundreds of ways to live and thousands of ideals of beauty. You

don't want everything to be high culture; you want beer and

skittles and trashy delights as well as brilliant news

reporting, avant-garde theater, and shocking sculpture. You can

see a role for highbrow, state-supported media or publicly

financed artworks, but your initial working assumption is that

the final arbiter of culture should be the people who watch,

read, and listen to it, and who remake it every day. And even if

you are dubious about the way popular choice gets formed, you

prefer it to some government funding body or coterie of art

mavens.

At the same time as you are developing your culture, you want a

flourishing economy--and not just in literature or film. You want

innovation and invention. You want drugs that cure terrible

diseases, and designs for more fuel-efficient stoves, and useful

little doodads, like mousetraps, or Post-it notes, or solar-

powered backscratchers. To be exact, you want lots of innovation

but you do not know exactly what innovation or even what types

of innovation you want.

Given scarce time and resources, should we try to improve

typewriters or render them obsolete with word processors, or

develop functional voice recognition software, or just

concentrate on making solar-powered backscratchers? Who knew

that they needed Post-it notes or surgical stents or specialized

rice planters until those things were actually developed? How do

you make priorities when the priorities include things you

cannot rationally value because you do not have them yet? How do

you decide what to fund and when to fund it, what desires to

trade off against each other?

The society you have founded normally relies on market signals

to allocate resources. If a lot of people want petunias for

their gardens, and are willing to pay handsomely for them, then

some farmer who was formerly growing soybeans or gourds will

devote a field to petunias instead. He will compete with the

other petunia sellers to sell them to you. Voila! We do not need

a state planner to consult the vegetable five-year plan and

decree "Petunias for the People!" Instead, the decision about

how to deploy society's productive resources is being made

"automatically," cybernetically even, by rational individuals

responding to price signals. And in a competitive market, you

will get your petunias at very close to the cost of growing them

and bringing them to market. Consumer desires are satisfied and

productive resources are allocated efficiently. It's a tour de

force.

Of course, there are problems. The market measures the value of

a good by whether people have the ability and willingness to pay

for it, so the whims of the rich may be more "valuable" than the

needs of the destitute. We may spend more on pet psychiatry for

the traumatized poodles on East 71st Street than on developing a

cure for sleeping sickness, because the emotional wellbeing of

the pets of the wealthy is "worth more" than the lives of the

tropical world's poor. But for a lot of products, in a lot of

areas, the market works--and that is a fact not to be taken for

granted.

Why not use this mechanism to meet your cultural and innovation

needs? If people need Madame Bovary or The New York Times or a

new kind of antibiotic, surely the market will provide it?

Apparently not. You have brought economists with you into your

brave new world--perhaps out of nostalgia, or because a lot of

packing got done at the last minute. The economists shake their

heads.1 The petunia farmer is selling something that is "a

rivalrous good." If I have the petunia, you can't have it.

What's more, petunias are "excludable." The farmer only gives

you petunias when you pay for them. It is these factors that

make the petunia market work. What about Madame Bovary, or the

antibiotic, or The New York Times? Well, it depends. If books

have to be copied out by hand, then Madame Bovary is just like

the petunia. But if thousands of copies of Madame Bovary can be

printed on a printing press, or photocopied, or downloaded from

www.flaubertsparrot.com, then the book becomes something that is

nonrival; once Madame Bovary is written, it can satisfy many

readers with little additional effort or cost. Indeed, depending

on the technologies of reproduction, it may be very hard to

exclude people from Madame Bovary.

Imagine a Napster for French literature; everyone could have

Madame Bovary and only the first purchaser would have to pay for

it. Because of these "nonrival" and "nonexcludable"

characteristics, Flaubert's publisher would have a more

difficult time coming up with a business plan than the petunia

farmer. The same is true for the drug company that invests

millions in screening and testing various drug candidates and

ends up with a new antibiotic that is both safe and effective,

but which can be copied for pennies. Who will invest the money,

knowing that any product can be undercut by copies that don't

have to pay the research costs? How are authors and publishers

and drug manufacturers to make money? And if they can't make

money, how are we to induce people to be authors or to be the

investors who put money into the publishing or pharmaceutical

business?

It is important to pause at this point and inquire how closely

reality hews to the economic story of "nonexcludable" and

"nonrival" public goods. It turns out that the reality is much

more complex. First, there may be motivations for creation that

do not depend on the market mechanism. People sometimes create

because they seek fame, or out of altruism, or because an

inherent creative force will not let them do otherwise. Where

those motivations operate, we may not need a financial incentive

to create. Thus the "problem" of cheap copying in fact becomes a

virtue. Second, the same technologies that make copying cheaper

may also lower the costs of advertising and distribution,

cutting down on the need to finance expensive distribution

chains. Third, even in situations that do require incentives for

creativity and for distribution, it may be that being "first to

market" with an innovation provides the innovator with enough of

a head start on the competition to support the innovation.2

Fourth, while some aspects of the innovation may truly be

nonrival, other aspects may not. Software is nonrival and hard

to exclude people from, but it is easy to exclude your customers

from the help line or technical support. The CD may be copied

cheaply; the concert is easy to police. The innovator may even

be advantaged by being able to trade on the likely effects of

her innovation. If I know I have developed the digital camera, I

may sell the conventional film company's shares short.

Guarantees of authenticity, quality, and ease of use may attract

purchasers even if unauthorized copying is theoretically

cheaper.

In other words, the economic model of pure public goods will

track our reality well in some areas and poorly in others--and

the argument for state intervention to fix the problems of

public goods will therefore wax and wane correspondingly. In the

case of drug patents, for example, it is very strong. For lots

of low-level business innovation, however, we believe that

adequate incentives are provided by being first to market, and

so we see no need to give monopoly power to the first business

to come up with a new business plan--at least we did not until

some disastrous patent law decisions discussed later in this

book. Nor does a lowering of copying costs hurt every industry

equally. Digital copies of music were a threat to the

traditional music business, but digital copies of books? I am

skeptical. This book will be freely and legally available online

to all who wish to copy it. Both the publisher and I believe

that this will increase rather than decrease sales.

Ignore these inconvenient complicating factors for a moment.

Assume that wherever things are cheap to copy and hard to

exclude others from, we have a potential collapse of the market.

That book, that drug, that film will simply not be produced in

the first place--unless the state steps in somehow to change the

equation. This is the standard argument for intellectual

property rights. And a very good argument it is. In order to

solve the potentially "marketbreaking" problem of goods that are

expensive to make and cheap to copy, we will use what my

colleague Jerry Reichman calls the "market-making" device of

intellectual property. The state will create a right to exclude

others from the invention or the expression and confer it on the

inventor or the author. The most familiar rights of this kind

are copyrights and patents. (Trademarks present some special

issues, which I will address a little later.) Having been given

the ability to forbid people to copy your invention or your

novel, you can make them pay for the privilege of getting

access. You have been put back in the position of the petunia

farmer.

Pause for a moment and think of what a brilliant social

innovation this is--at least potentially. Focus not on the

incentives alone, but on the decentralization of information

processing and decision making that a market offers. Instead of

having ministries of art that define the appropriate culture to

be produced this year, or turning the entire path of national

innovation policy over to the government, intellectual property

decentralizes the choices about what creative and innovative

paths to pursue while retaining the possibility that people will

actually get paid for their innovation and creative expression.

The promise of copyright is this: if you are a radical

environmentalist who wants to alert the world to the danger

posed by climate change, or a passionate advocate of

homeschooling, or a cartoonist with a uniquely twisted view of

life, or a musician who can make a slack key guitar do very

strange things, or a person who likes to take amazingly

saccharine pictures of puppies and put them on greeting

cards--maybe you can quit your day job and actually make a living

from your expressive powers. If the market works, if the

middlemen and distributors are smart enough, competitive enough,

and willing to take a chance on expression that competes with

their in-house talent, if you can make it somehow into the

public consciousness, then you can be paid for allowing the

world to copy, distribute, and perform your stuff. You risk your

time and your effort and your passion and, if the market likes

it, you will be rewarded. (At the very least, the giant

producers of culture will be able to assemble vast teams of

animators and musicians and software gurus and meld their labors

into a videotape that will successfully anesthetize your

children for two hours; no small accomplishment, let me tell

you, and one for which people will certainly pay.)

More importantly, if the system works, the choices about the

content of our culture--the mix of earnest essays and saccharine

greeting cards and scantily clad singers and poetic renditions

of Norse myths--will be decentralized to the people who actually

read, or listen to, or watch the stuff. This is our cultural

policy and it is driven, in part, by copyright.

The promise of patent is this: we have a multitude of human

needs and a multitude of individuals and firms who might be able

to satisfy those needs through innovation. Patent law offers us

a decentralized system that, in principle, will allow

individuals and firms to pick the problem that they wish to

solve. Inventors and entrepreneurs can risk their time and their

capital and, if they produce a solution that finds favor in the

marketplace, will be able to reap the return provided by the

legal right to exclude--by the legal monopoly over the resulting

invention. The market hints at some unmet need--for drugs that

might reduce obesity or cure multiple sclerosis, or for Post-it

notes or windshield wipers that come on intermittently in light

rain--and the innovator and her investors make a bet that they

can meet that need. (Not all of these technologies will be

patentable--only those that are novel and "nonobvious," something

that goes beyond what any skilled person in the relevant field

would have done.)

In return for the legal monopoly, patent holders must describe

the technology well enough to allow anyone to replicate it once

the patent term ends. Thus patent law allows us to avert two

dangers: the danger that the innovation will languish because

the inventor has no way to recover her investment of time and

capital, and the danger that the inventor will turn to secrecy

instead, hiding the details of her innovation behind black box

technologies and restrictive contracts, so that society never

gets the knowledge embedded in it. (This is a real danger. The

medieval guilds often relied on secrecy to maintain the

commercial advantage conveyed by their special skills, thus

slowing progress down and sometimes simply stopping it. We still

don't know how they made Stradivarius violins sound so good.

Patents, by contrast, keep the knowledge public, at least in

theory;3 you must describe it to own it.) And again, decisions

about the direction of innovation have been largely, though not

entirely, decentralized to the people who actually might use the

products and services that result. This is our innovation policy

and it is increasingly driven by patent.

What about the legal protection of trademarks, the little words

or symbols or product shapes that identify products for us? Why

do we have trademark law, this "homestead law for the English

language"?4 Why not simply allow anyone to use any name or

attractive symbol that they want on their products, even if

someone else used it first? A trademark gives me a limited right

to exclude other people from using my mark, or brand name, or

product shape, just as copyright and patent law give me a

limited right to exclude other people from my original

expression or my novel invention. Why create such a right and

back it with the force of law?

According to the economists, the answer is that trademark law

does two things. It saves consumers time. We have good reason to

believe that a soap that says "Ivory" or a tub of ice cream that

says "Häagen-Dazs" will be made by the same manufacturer that

made the last batch of Ivory soap or Häagen-Dazs ice cream. If

we liked the good before and we see the symbol again, we know

what we are getting. I can work out what kind of soap, ice

cream, or car I like, and then just look for the appropriate

sign rather than investigating the product all over again each

time I buy. That would be wasteful and economists hate waste. At

the same time, trademarks fulfill a second function: they are

supposed to give manufacturers an incentive to make good

products--or at least to make products of consistent quality or

price--to build up a good brand name and invest in consistency of

its key features, knowing that no other firm can take their name

or symbol. (Why produce a high-quality product, or a reliable

cheap product, and build a big market share if a free rider

could wait until people liked the product and then just produce

an imitation with the same name but of lower quality?) The

promise of trademark is that quality and commercial information

flow regulate themselves, with rational consumers judging among

goods of consistent quality produced by manufacturers with an

interest in building up long-term reputation.

So there we have the idealized vision of intellectual property.

It is not merely supposed to produce incentives for innovation

by rewarding creators, though that is vital. Intellectual

property is also supposed to create a feedback mechanism that

dictates the contours of information and innovation production.

It is not an overstatement to say that intellectual property

rights are designed to shape our information marketplace.

policy in which the right to exclude others from one's original

expression fuels a vibrant public sphere indirectly driven by

popular demand. At its best, it is supposed to allow a

decentralized and iconoclastic cultural ferment in which

independent artists, musicians, and writers can take their

unique visions, histories, poems, or songs to the world--and make

a living doing so if their work finds favor. Patent law is

supposed to give us a self-regulating innovation policy in which

the right to exclude others from novel and useful inventions

creates a cybernetic and responsive innovation marketplace. The

allocation of social resources to particular types of innovation

is driven by guesses about what the market wants. Trademark law

is supposed to give us a self-regulating commercial information

policy in which the right to exclude others from one's trade

name, symbol, or slogan produces a market for consumer

information in which firms have incentives to establish quality

brand names and consumers can rely on the meaning and the

stability of the logos that surround them. Ivory soap will

always mean Ivory soap and Coke will mean Coke, at least until

the owners of those marks decide to change the nature of their

products.

Some readers will find my use of the term "intellectual

property" mistaken and offensive. They will argue, and I agree,

that the use of the term "property" can cause people mistakenly

to conflate these rights with those to physical property. (I

outline that process and its negative consequences in the next

chapter.) They will argue, and again I agree, that there are big

differences between the three fields I have described. Should we

not just list the specific rights about which we are

speaking--copyright, patent, or trademark? Both of these concerns

are real and well-founded, but I respectfully disagree with the

conclusion that we should give up the term "intellectual

property."

First, as I have tried to show above, while there are

considerable differences between the three fields I discussed,

there is also a core similarity--the attempt to use a legally

created privilege to solve a potential "public goods problem."

That similarity can enlighten as well as confuse. Yes, copyright

looks very different from patent, just as a whale looks very

different from a mouse. But we do not condemn the scientist who

notes that they are both "mammals"--a socially constructed

category--so long as he has a reason for focusing on that

commonality. Second, the language of intellectual property

exists. It has political reality in the world. Sometimes the

language confuses and misleads. There are two possible reactions

to such a reality. One can reject it and insist on a different

and "purified" nomenclature, or one can attempt to point out the

misperceptions and confusions using the very language in which

they are embedded. I do not reject the first tactic. It can be

useful. Here, though, I have embraced the second.

I have provided the idealized story of intellectual property.

But is it true? Did the law really develop that way? Does it

work that way now? Does this story still apply in the world of

the Internet and the Human Genome Project? If you believed the

idealized story, would you know what kind of intellectual

property laws to write? The answer to all of these questions is

"not exactly."

Like most social institutions, intellectual property has an

altogether messier and more interesting history than this

sanitized version of its functioning would suggest. The

precursors of copyright law served to force the identification

of the author, so that he could be punished if he proved to be a

heretic or a revolutionary. The Statute of Anne--the first true

fights with booksellers; the authorial right grew as an

afterthought.5 The history of patents includes a wealth of

attempts to reward friends of the government and restrict or

control dangerous technologies. Trademark law has shuttled

uneasily between being a free-floating way to police competition

so as to prohibit actions that courts thought were "unfair" and

an absolute property right over an individual word or symbol.

But does intellectual property work this way now, promoting the

ideal of progress, a transparent marketplace, easy and cheap

access to information, decentralized and iconoclastic cultural

production, self-correcting innovation policy? Often it does,

but distressingly often it does the reverse. The rights that

were supposed to be limited in time and scope to the minimum

monopoly necessary to ensure production become instead a kind of

perpetual corporate welfare--restraining the next generation of

creators instead of encouraging them. The system that was

supposed to harness the genius of both the market and democracy

sometimes subverts both. Worse, it does so inefficiently,

locking up vast swaths of culture in order to confer a benefit

on a tiny minority of works. But this is too abstract. A single

instance from copyright law will serve as a concrete example of

what is at stake here. Later in the book I will give other

examples.

YOU'LL GET MY LIBRARY OF

CONGRESS WHEN . . .

Go to the Library of Congress catalogue. It is online at

http://catalog.loc.gov/. This is an astounding repository of

material--not just books and periodicals, but pictures, films,

and music. The vast majority of this material, perhaps as much

as 95 percent in the case of books, is commercially

unavailable.6 The process happens comparatively quickly.

Estimates suggest that a mere twenty-eight years after

publication 85 percent of the works are no longer being

commercially produced. (We know that when U.S. copyright

required renewal after twenty-eight years, about 85 percent of

all copyright holders did not bother to renew. This is a

reasonable, if rough, guide to commercial viability.)7

Yet because the copyright term is now so long, in many cases

extending well over a century, most of twentieth-century culture

is still under copyright--copyrighted but unavailable. Much of

this, in other words, is lost culture. No one is reprinting the

books, screening the films, or playing the songs. No one is

allowed to. In fact, we may not even know who holds the

incomplete or absent. In some cases, it is even more

complicated. A film, for example, might have one copyright over

the sound track, another over the movie footage, and another

over the script. You get the idea. These works--which are

commercially unavailable and also have no identifiable copyright

holder--are called "orphan works." They make up a huge percentage

of our great libraries' holdings. For example, scholars estimate

that the majority of our film holdings are orphan works.8 For

books, the estimates are similar. Not only are these works

unavailable commercially, there is simply no way to find and

contact the person who could agree to give permission to

digitize the work or make it available in a new form.

Take a conservative set of numbers. Subtract from our totals the

works that are clearly in the public domain. In the United

States, that is generally work produced before 1923. That

material, at least, we can use freely. Subtract, too, the works

that are still available from the copyright holder. There we can

gain access if we are willing to pay. Yet this still leaves a

huge proportion of twentieth- and twenty-first-century culture

commercially unavailable but under copyright. In the case of

books, the number is over 95 percent, as I said before; with

films and music, it is harder to tell, but the percentages are

still tragically high. A substantial proportion of that total is

made up of orphan works. They cannot be reprinted or digitized

even if we were willing to pay the owner to do so. And then

comes the Internet. Right now, you can search for those books or

films or songs and have the location of the work instantly

displayed, as well as a few details about it. And if you live in

Washington, D.C., or near some other great library, you can go

to a reading room, and if the work can be found and has not been

checked out, and has not deteriorated, you can read the books

(though you probably will not be able to arrange to see the

movies unless you are an accredited film scholar).

I was searching the Library of Congress catalogue online one

night, tracking down a seventy-year-old book about politics and

markets, when my son came in to watch me. He was about eight

years old at the time but already a child of the Internet age.

He asked what I was doing and I explained that I was printing

out the details of the book so that I could try to find it in my

own university library. "Why don't you read it online?" he said,

reaching over my shoulder and double-clicking on the title,

frowning when that merely led to another information page: "How

do you get to read the actual book?" I smiled at the assumption

that all the works of literature were not merely in the Library

of Congress, but actually on the Net: available to anyone with

an Internet connection anywhere in the world--so that you could

not merely search for, but also read or print, some large slice

of the Library's holdings. Imagine what that would be like.

Imagine the little underlined blue hyperlink from each title--to

my son it made perfect sense. The book's title was in the

catalogue. When you clicked the link, surely you would get to

read it. That is what happened in his experience when one

clicked a link. Why not here? It was an old book, after all, no

longer in print. Imagine being able to read the books, hear the

music, or watch the films--or at least the ones that the Library

of Congress thought it worthwhile to digitize. Of course, that

is ridiculous.

I tried to explain this to my son. I showed him that there were

some works that could be seen online. I took him to the online

photograph library, meaning to show him the wealth of amazing

historical photographs. Instead, I found myself brooding over

the lengthy listing of legal restrictions on the images and the

explanation that reproduction of protected items may require the

written permission of the copyright owners and that, in many

cases, only indistinct and tiny thumbnail images are displayed

to those searching from outside the Library of Congress "because

of potential rights considerations." The same was true of the

scratchy folk songs from the twenties or the early film

holdings. The material was in the Library, of course--remarkable

collections in some cases, carefully preserved, and sometimes

even digitized at public expense. Yet only a tiny fraction of it

is available online. (There is a fascinating set of Edison's

early films, for example.)

Most of the material available online comes from so long ago

that the copyright could not possibly still be in force. But

since copyright lasts for seventy years after the death of the

author (or ninety-five years if it was a corporate "work for

hire"), that could be a very, very long time indeed. Long

enough, in fact, to keep off limits almost the whole history of

moving pictures and the entire history of recorded music. Long

enough to lock up almost all of twentieth-century culture.

But is that not what copyright is supposed to do? To grant the

right to restrict access, so as to allow authors to charge for

the privilege of obtaining it? Yes, indeed. And this is a very

good idea. But as I argue in this book, the goal of the system

ought to be to give the monopoly only for as long as necessary

to provide an incentive. After that, we should let the work fall

into the public domain where all of us can use it, transform it,

adapt it, build on it, republish it as we wish. For most works,

the owners expect to make all the money they are going to recoup

from the work with five or ten years of exclusive rights. The

rest of the copyright term is of little use to them except as a

kind of lottery ticket in case the work proves to be a one-in-a-

million perennial favorite. The one-in-a-million lottery winner

will benefit, of course, if his ticket comes up. And if the

ticket is "free," who would not take it? But the ticket is not

free to the public. They pay higher prices for the works still

being commercially exploited and, frequently, the price of

complete unavailability for the works that are not.

Think of a one-in-a-million perennial favorite--Harry Potter,

say. Long after J. K. Rowling is dust, we will all be forbidden

from making derivative works, or publishing cheap editions or

large-type versions, or simply reproducing it for pleasure. I am

a great admirer of Ms. Rowling's work, but my guess is that

little extra incentive was provided by the thought that her

after her death. Some large costs are being imposed here, for a

small benefit. And the costs fall even more heavily on all the

other works, which are available nowhere but in some moldering

library stacks. To put it another way, if copyright owners had

to purchase each additional five years of term separately, the

same way we buy warranties on our appliances, the economically

rational ones would mainly settle for a fairly short period.

Of course, there are some works that are still being exploited

commercially long after their publication date. Obviously the

owners of these works would not want them freely available

online. This seems reasonable enough, though even with those

works the copyright should expire eventually. But remember, in

the Library of Congress's vast, wonderful pudding of songs and

pictures and films and books and magazines and newspapers, there

is perhaps a handful of raisins' worth of works that anyone is

making any money from, and the vast majority of those come from

the last ten years. If one goes back twenty years, perhaps a

raisin. Fifty years? A slight raisiny aroma. We restrict access

to the whole pudding in order to give the owners of the raisin

slivers their due. But this pudding is almost all of twentieth-

century culture, and we are restricting access to it when almost

of all of it could be available.

If you do not know much about copyright, you might think that I

am exaggerating. After all, if no one has any financial interest

in the works or we do not even know who owns the copyright,

surely a library would be free to put those works online?

Doesn't "no harm, no foul" apply in the world of copyright? In a

word, no. Copyright is what lawyers call a "strict liability"

system. This means that it is generally not a legal excuse to

say that you did not believe you were violating copyright, or

that you did so by accident, or in the belief that no one would

care, and that your actions benefited the public. Innocence and

mistake do not absolve you, though they might reduce the

penalties imposed. Since it is so difficult to know exactly who

owns the copyright (or copyrights) on a work, many libraries

simply will not reproduce the material or make it available

online until they can be sure the copyright has expired--which

may mean waiting for over a century. They cannot afford to take

the risk.

What is wrong with this picture? Copyright has done its job and

encouraged the creation of the work. But now it acts as a fence,

keeping us out and restricting access to the work to those who

have the time and resources to trudge through the stacks of the

nation's archives. In some cases, as with film, it may simply

make the work completely unavailable.

So far I have been talking as though copyright were the only

reason the material is not freely available online. But of

course, this is not true. Digitizing costs money (though less

every year) and there is a lot of rubbish out there, stuff no

one would ever want to make available digitally (though it must

be noted that one man's rubbish is another man's delight). But

that still leaves vast amounts of material that we would want,

and be willing to pay, to have digitized. Remember also that if

the material were legally free, anyone could get in on the act

of digitizing it and putting it up. Google's much-heralded

effort to scan the books in major libraries is just the kind of

thing I mean. But Google is being sued for violating

system, and even though under the Google system you cannot click

to get the book if it is still under copyright, merely a snippet

a few sentences long from the book.

If you are shaking your head as you read this, saying that no

one would bother digitizing most of the material in the

archives, look at the Internet and ask yourself where the

information came from the last time you did a search. Was it an

official and prestigious institution? A university or a museum

or a government? Sometimes those are our sources of information,

of course. But do you not find the majority of the information

you need by wandering off into a strange click-trail of sites,

amateur and professional, commercial and not, hobbyist and

entrepreneur, all self-organized by internal referrals and

search engine algorithms? Even if Google did not undertake the

task of digitization, there would be hundreds, thousands, maybe

millions of others who would--not with Google's resources, to be

sure. In the process, they would create something quite

remarkable.

The most satisfying proofs are existence proofs. A platypus is

an existence proof that mammals can lay eggs. The Internet is an

existence proof of the remarkable information processing power

of a decentralized network of hobbyists, amateurs, universities,

businesses, volunteer groups, professionals, and retired experts

and who knows what else. It is a network that produces useful

information and services. Frequently, it does so at no cost to

the user and without anyone guiding it. Imagine that energy,

that decentralized and idiosyncratically dispersed pattern of

interests, turned loose on the cultural artifacts of the

twentieth century. Then imagine it coupled to the efforts of the

great state archives and private museums who themselves would be

free to do the same thing. Think of the people who would work on

Buster Keaton, or the literary classics of the 1930s, or the

films of the Second World War, or footage on the daily lives of

African-Americans during segregation, or the music of the Great

Depression, or theremin recordings, or the best of vaudeville.

Imagine your Google search in such a world. Imagine that Library

of Congress. One science fiction writer has taken a stab. His

character utters the immortal line, "Man, you'll get my Library

of Congress when you pry my cold dead fingers off it!" 9

Familiar with the effect of this kind of train of thought on his

father, my son had long since wandered off in search of a

basketball game to watch. But I have to admit his question was

something of an epiphany for me: Where do you click to get the

actual book?

The response I get from a lot of people is that this vision of

the Library of Congress is communism, pure and simple. Such

people view Google's attempt to digitize books as simple theft.

Surely it will destroy the incentives necessary to produce the

next beach novel, the next academic monograph, the next teen

band CD, the next hundred-million-dollar movie? But this

mistakes my suggestion. Imagine a very conservative system.

First, let us make people demonstrate that they want a

gets a copyright as soon as the work is written down or

otherwise fixed, whether they want one or not.) But how long a

for five or ten years. Let us give copyright owners more than

double that, say twenty-eight years of exclusive rights. If

prior experience is any guide, 85 percent of works will be

allowed to enter the public domain after that period. If that

isn't generous enough, let us say that the small proportion of

owners who still find value in their copyright at the end of

twenty-eight years can extend their copyright for another

twenty-eight years. Works that are not renewed fall immediately

into the public domain. If you check the register after twenty-

eight years and the work has not been renewed, it is in the

public domain. Works that are renewed get the extra time.

Now this is a conservative suggestion, too conservative in my

view, though still better than what we have now. Is it feasible?

It would be hard to argue that it is not. This pretty much was

the law in the United States until 1978. (My system is a little

simpler, but the broad strokes are the same.) Since that point,

in two broad stages, we have moved away from this system at the

very moment in history when the Internet made it a particularly

stupid idea to do so.

How have we changed the system? We have given copyrights to the

creator of any original work as soon as it is fixed, so that

you, reader, are the author of thousands of copyrighted works.

Almost everything up on the Internet is copyrighted, even if its

creators do not know that and would prefer it to be in the

public domain. Imagine that you want to make a documentary and

use a film clip that a student filmmaker has put up on his home

page. Perhaps you want to adapt the nifty graphics that a high

school teacher in Hawaii created to teach her calculus class,

thinking that, with a few changes, you could use the material

for your state's K-12 physics program. Perhaps you are a collage

artist who wishes to incorporate images that amateur artists

have put online. None of the works are marked by a copyright

symbol. Certainly they are up on the Internet, but does that

mean that they are available for reprinting, adaptation, or

incorporation in a new work?

In each of these cases, you simply do not know whether what you

are doing is legal or not. Of course, you can take the risk,

though that becomes less advisable if you want to share your

work with others. Each broadening of the circle of sharing

increases the value to society but also the legal danger to you.

What if you want to put the course materials on the Net, or

publish the anthology, or display the movie? Perhaps you can try

to persuade your publisher or employer or distributor to take

the risk. Perhaps you can track down the authors of every piece

you wish to use and puzzle through the way to get a legal

release from them stating that they give you permission to use

the work they did not even know they had copyright over. Or you

can give up. Whatever happens, you waste time and effort in

trying to figure out a way of getting around a system that is

designed around neither your needs nor the needs of many of the

people whose work you want to use.

Apart from doing away with the need to indicate that you want

your works to be copyrighted, we have lengthened the copyright

term. We did this without any credible evidence that it was

necessary to encourage innovation. We have extended the terms of

living and even of dead authors over works that have already

been created. (It is hard to argue that this was a necessary

incentive, what with the works already existing and the authors

often being dead.) We have done away with the need to renew the

right. Everyone gets the term of life plus seventy years, or

ninety-five years for corporate "works for hire." All protected

by a "strict liability" system with scary penalties. And, as I

said before, we have made all those choices just when the

Internet makes their costs particularly tragic.

In sum, we have forgone the Library of Congress I described

without even apparently realizing we were doing so. We have

locked up most of twentieth-century culture and done it in a

particularly inefficient and senseless way, creating vast costs

in order to convey proportionally tiny benefits. (And all

without much complaint from those who normally object to

inefficient government subsidy programs.) Worst of all, we have

turned the system on its head. Copyright, intended to be the

servant of creativity, a means of promoting access to

information, is becoming an obstacle to both.

That, then, is one example of the stakes of the debate over

intellectual property policy. Unfortunately, the problem of

pattern. As I will try to show, this pattern is repeated again

and again in patents, in trademarks, and elsewhere in copyright

law. This is not an isolated "glitch." It is a complicated but

relentless tendency that has led to a hypertrophy of

intellectual property rights and an assault on the public

domain. In fact, in many cases, the reality is even worse: there

appears to be a complete ignorance about the value of the public

domain. Property's opposite, its outside, is getting short

shrift.

To paraphrase a song from my youth, "how did we get here?" Where

should we turn to understand the role of intellectual property

in the era of the Internet and the decoding of the human genome?

We could turn to the cutting edge of technology or to economics

or information theory. But none of those would be as useful a

starting place as a letter that was written about two hundred

years ago, using a high-tech quill pen, about a subject far from

the digital world.