1
The law locks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from off the goose.
2
The law demands that we atone
When we take things we do not own
But leaves the lords and ladies fine
Who take things that are yours and mine.
3
The poor and wretched don't escape
If they conspire the law to break;
This must be so but they endure
Those who conspire to make the law.
4
The law locks up the man or woman
Who steals the goose from off the common
And geese will still a common lack
Till they go and steal it back.
[Anon.]1
5
In fits and starts from the fifteenth to the nineteenth century,
the English "commons" was "enclosed." 2 Enclosure did not
necessarily mean physical fencing, though that could happen.
More likely, the previously common land was simply converted
into private property, generally controlled by a single
landholder.
6
The poem that begins this chapter is the pithiest condemnation
of the process. It manages in a few lines to criticize double
standards, expose the controversial nature of property rights,
and take a slap at the legitimacy of state power. And it does
this all with humor, without jargon, and in rhyming couplets.
Academics should take note. Like most criticisms of the
enclosure movement, the poem depicts a world of rapacious,
state-aided "privatization," a conversion into private property
of something that had formerly been common property or perhaps
had been outside the property system altogether. One kind of
"stealing" is legal, says the poet, because the state changes
the law of property to give the "lords and ladies" a right over
an area formerly open to all. But let a commoner steal something
and he is locked up.
7
The anonymous author was not alone in feeling indignant. Thomas
More (one of only two saints to write really good political
theory) made similar points, though he used sheep rather than
geese in his argument. Writing in the sixteenth century, he had
argued that enclosure was not merely unjust in itself but
harmful in its consequences: a cause of economic inequality,
crime, and social dislocation. In a wonderfully bizarre passage
he argues that sheep are a principal cause of theft. Sheep? Why,
yes.
8
[Y]our sheep that were wont to be so meek and tame, and so
small eaters, now, as I hear say, be become so great devourers
and so wild, that they eat up, and swallow down the very men
themselves. They consume, destroy, and devour whole fields,
houses, and cities.
9
Who were these sheep? Bizarre Dolly-like clones? Transgenic
killer rams? No. More meant only that under the economic lure of
the wool trade, the "noblemen and gentlemen" were attempting
their own enclosure movement.
10
[They] leave no ground for tillage, they enclose all into
pastures; they throw down houses; they pluck down towns, and
leave nothing standing, but only the church to be made a sheep-
house. . . . Therefore that one covetous and insatiable
cormorant and very plague of his native country may compass
about and enclose many thousand acres of ground together within
one pale or hedge, the husbandmen be thrust out of their own.3
11
The sheep devour all. The dispossessed "husbandmen" now find
themselves without land or money and turn instead to theft. In
More's vision, it is all very simple. Greed leads to enclosure.
Enclosure disrupts the life of the poor farmer. Disruption leads
to crime and violence.
12
Writing 400 years later, Karl Polanyi echoes More precisely. He
calls the enclosure movement "a revolution of the rich against
the poor" and goes on to paint it in the most unflattering
light. "The lords and nobles were upsetting the social order,
breaking down ancient law and custom, sometimes by means of
violence, often by pressure and intimidation. They were
literally robbing the poor of their share in the common. . . ."
4 And turning them to "beggars and thieves." The critics of
enclosure saw other harms too, though they are harder to
classify. They bemoaned the relentless power of market logic to
migrate to new areas, disrupting traditional social
relationships and perhaps even views of the self, or the
relationship of human beings to the environment. Fundamentally,
they mourned the loss of a form of life.
13
So much for the bad side of the enclosure movement. For many
economic historians, everything I have said up to now is the
worst kind of sentimental bunk, romanticizing a form of life
that was neither comfortable nor noble, and certainly not very
egalitarian. The big point about the enclosure movement is that
it worked; this innovation in property systems allowed an
unparalleled expansion of productive possibilities. 5 By
transferring inefficiently managed common land into the hands of
a single owner, enclosure escaped the aptly named "tragedy of
the commons." It gave incentives for large-scale investment,
allowed control over exploitation, and in general ensured that
resources could be put to their most efficient use. Before the
enclosure movement, the feudal lord would not invest in drainage
systems, sheep purchases, or crop rotation that might increase
yields from the common--he knew all too well that the fruits of
his labor could be appropriated by others. The strong private
property rights and single-entity control that were introduced
in the enclosure movement avoid the tragedies of overuse and
underinvestment: more grain will be grown, more sheep raised,
consumers will benefit, and fewer people will starve in the long
run. 6
14
If the price of this social gain is a greater concentration of
economic power, the introduction of market forces into areas
where they previously had not been so obvious, or the disruption
of a modus vivendi with the environment--then, enclosure's
defenders say, so be it! In their view, the agricultural surplus
produced by enclosure helped to save a society devastated by the
mass deaths of the sixteenth century. Those who weep over the
terrible effects of private property should realize that it
literally saves lives.
15
Now it is worth noting that while this view was once
unchallenged, 7 recent scholarship has thrown some doubts on the
effects of enclosure on agricultural production. 8 Some scholars
argue that the commons was actually better run than the
defenders of enclosure admit. 9 Thus, while enclosure did
produce the changes in the distribution of wealth that so
incensed an earlier generation of critical historians, they
argue that there are significant questions about whether it led
to greater efficiency or innovation. The pie was carved up
differently, but did it get bigger? The debate about these
issues is little known, however, outside the world of economic
historians. "Everyone" knows that a commons is by definition
tragic and that the logic of enclosure is as true today as it
was in the fifteenth century. I will not get involved in this
debate. Assume for the sake of argument that enclosure did
indeed produce a surge in agriculture. Assume, in other words,
that converting the commons into private property saved lives.
This is the logic of enclosure. It is a powerful argument, but
it is not always right.
16
This is all very well, but what does it have to do with
intellectual property? I hope the answer is obvious. The
argument of this book is that we are in the middle of a second
enclosure movement. While it sounds grandiloquent to call it
"the enclosure of the intangible commons of the mind," in a very
real sense that is just what it is. 10 True, the new state-
created property rights may be "intellectual" rather than
"real," but once again things that were formerly thought of as
common property, or as "uncommodifiable," or outside the market
altogether, are being covered with new, or newly extended,
property rights.
17
Take the human genome as an example. Again, the supporters of
enclosure have argued that the state was right to step in and
extend the reach of property rights; that only thus could we
guarantee the kind of investment of time, ingenuity, and capital
necessary to produce new drugs and gene therapies. 11 To the
question, "Should there be patents over human genes?" the
supporters of enclosure would answer that private property saves
lives. 12 The opponents of enclosure have claimed that the human
genome belongs to everyone, that it is literally the common
heritage of humankind, that it should not and perhaps in some
sense cannot be owned, and that the consequences of turning over
the human genome to private property rights will be dreadful, as
market logic invades areas which should be the farthest from the
market. In stories about stem cell and gene sequence patents,
critics have mused darkly about the way in which the state is
handing over monopoly power to a few individuals and
corporations, potentially introducing bottlenecks and
coordination costs that slow down innovation. 13
18
Alongside these accounts of the beneficiaries of the new
property scheme run news stories about those who were not so
fortunate, the commoners of the genetic enclosure. Law students
across America read Moore v. Regents of University of
California, a California Supreme Court case deciding that Mr.
Moore had no property interest in the cells derived from his
spleen. 14 The court tells us that giving private property
rights to "sources" would slow the freewheeling practice
researchers have of sharing their cell lines with all and
sundry. 15 The doctors whose inventive genius created a billion-
dollar cell line from Mr. Moore's "naturally occurring raw
material," by contrast, are granted a patent. Private property
rights here, by contrast, are a necessary incentive to research.
16 Economists on both sides of the enclosure debate concentrate
on the efficient allocation of rights. Popular discussion, on
the other hand, doubtless demonstrating a reprehensible lack of
rigor, returns again and again to more naturalistic assumptions
such as the essentially "common" quality of the property
involved or the idea that one owns one's own body. 17
19
The genome is not the only area to be partially "enclosed"
during this second enclosure movement. The expansion of
intellectual property rights has been remarkable--from business
method patents, to the Digital Millennium Copyright Act, to
trademark "anti-dilution" rulings, to the European Database
Protection Directive. 18 The old limits to intellectual property
rights--the antierosion walls around the public domain--are also
under attack. The annual process of updating my syllabus for a
basic intellectual property course provides a nice snapshot of
what is going on. I can wax nostalgic looking back to a five-
year-old text, with its confident list of subject matter that
intellectual property rights could not cover, the privileges
that circumscribed the rights that did exist, and the length of
time before a work falls into the public domain. In each case,
the limits have been eaten away.
20
HOW MUCH OF THE INTANGIBLE COMMONS SHOULD WE ENCLOSE?
21
So far I have argued that there are profound similarities
between the first enclosure movement and our contemporary
expansion of intellectual property, which I call the second
enclosure movement. Once again, the critics and proponents of
enclosure are locked in battle, hurling at each other
incommensurable claims about innovation, efficiency, traditional
values, the boundaries of the market, the saving of lives, the
loss of familiar liberties. Once again, opposition to enclosure
is portrayed as economically illiterate: the beneficiaries of
enclosure telling us that an expansion of property rights is
needed in order to fuel progress. Indeed, the post-Cold War
"Washington consensus" is invoked to claim that the lesson of
history itself is that the only way to get growth and efficiency
is through markets; property rights, surely, are the sine qua
non of markets. 19
22
This faith in enclosure is rooted in a correspondingly deep
pessimism about the possibility of managing resources that are
either commonly owned or owned by no one. If all have the right
to graze their herds on common land, what incentive does anyone
have to hold back? My attempt to safeguard the future of the
pasture will simply be undercut by others anxious to get theirs
while the getting is good. Soon the pasture will be overgrazed
and all our flocks will go hungry. In a 1968 article, Garrett
Hardin came up with the phrase that would become shorthand for
the idea that there were inherent problems with collectively
managed resources: "the tragedy of the commons." 20 The phrase,
more so than the actual arguments in his article, has come to
exercise considerable power over our policies today. Private
property--enclosure--is portrayed as the happy ending for the
tragedy of the commons: when policy makers see a resource that
is unowned, they tend to reach reflexively for "the solving idea
of property." According to this view, enclosure is not a
"revolution of the rich against the poor," it is a revolution to
save the waste of socially vital resources. To say that some
social resource is not owned by an individual, that it is free
as the air to common use, is automatically to conjure up the
idea that it is being wasted.
23
But if there are similarities between our two enclosures, there
are also profound dissimilarities; the networked commons of the
mind has many different characteristics from the grassy commons
of Old England. 21 I want to concentrate here on two key
differences between the intellectual commons and the commons of
the first enclosure movement, differences that should lead us to
question whether this commons is truly tragic and to ask whether
stronger intellectual property rights really are the solution to
our problems. These differences are well known, indeed they are
the starting point for most intellectual property law, a
starting point that Jefferson and Macaulay have already laid out
for us. Nevertheless, reflection on them might help to explain
both the problems and the stakes in the current wave of
expansion.
24
Unlike the earthy commons, the commons of the mind is generally
"nonrival." Many uses of land are mutually exclusive: if I am
using the field for grazing, it may interfere with your plans to
use it for growing crops. By contrast, a gene sequence, an MP3
file, or an image may be used by multiple parties; my use does
not interfere with yours. To simplify a complicated analysis,
this means that the threat of overuse of fields and fisheries is
generally not a problem with the informational or innovational
commons. 22 Thus, one type of tragedy of the commons is avoided.
25
The concerns in the informational commons have to do with a
different kind of collective action problem: the problem of
incentives to create the resource in the first place. The
difficulty comes from the assumption that information goods are
not only nonrival (uses do not interfere with each other), but
also nonexcludable (it is impossible, or at least hard, to stop
one unit of the good from satisfying an infinite number of users
at zero marginal cost). Pirates will copy the song, the
mousetrap, the drug formula, the brand. The rest of the argument
is well known. Lacking an ability to exclude, creators will be
unable to charge for their creations; there will be inadequate
incentives to create. Thus, the law must step in and create a
limited monopoly called an intellectual property right.
26
How about the argument that the increasing importance of
information-intensive products to the world economy means that
protection must increase? Must the information commons be
enclosed because it is now a more important sector of economic
activity? 23 This was certainly one of the arguments for the
first enclosure movement. For example, during the Napoleonic
Wars enclosure was defended as a necessary method of increasing
the efficiency of agricultural production, now a vital sector of
a wartime economy.
27
Here we come to another big difference between the commons of
the mind and the earthy commons. As has frequently been pointed
out, information products are often made up of fragments of
other information products; your information output is someone
else's information input. 24 These inputs may be snippets of
code, discoveries, prior research, images, genres of work,
cultural references, or databases of single nucleotide
polymorphisms--each is raw material for future innovation. Every
increase in protection raises the cost of, or reduces access to,
the raw material from which you might have built those future
products. The balance is a delicate one; one Nobel Prize-winning
economist has claimed that it is actually impossible to strike
that balance so as to produce an informationally efficient
market. 25
28
Whether or not it is impossible in theory, it is surely a
difficult problem in practice. In other words, even if enclosure
of the arable commons always produced gains (itself a subject of
debate), enclosure of the information commons clearly has the
potential to harm innovation as well as to support it. 26 More
property rights, even though they supposedly offer greater
incentives, do not necessarily make for more and better
production and innovation--sometimes just the opposite is true.
It may be that intellectual property rights slow down
innovation, by putting multiple roadblocks in the way of
subsequent innovation. 27 Using a nice inversion of the idea of
the tragedy of the commons, Heller and Eisenberg referred to
these effects--the transaction costs caused by myriad property
rights over the necessary components of some subsequent
innovation--as "the tragedy of the anticommons." 28
29
In short, even if the enclosure movement was a complete success,
there are important reasons to believe that the intangible world
is less clearly a candidate for enclosure, that we should pause,
study the balance between the world of the owned and the world
of the free, gather evidence. After all, even in physical space,
"common" property such as roads increases the value of the
surrounding private tracts. If there are limits to the virtues
of enclosure even there, how much more so in a world of
intangible and nonrival goods, which develop by drawing on prior
creations? Yet the second enclosure movement proceeds
confidently nevertheless--with little argument and less evidence.
30
To be sure, there is a danger of overstatement. The very fact
that the changes have been so one-sided makes it hard to resist
exaggerating their impact. In 1918, Justice Brandeis confidently
claimed that "[t]he 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." 29 That baseline--intellectual
property rights are the exception rather than the norm; ideas
and facts must always remain in the public domain--is still
supposed to be our starting point. 30 It is, however, under
attack.
31
Both overtly and covertly, the commons of facts and ideas is
being enclosed. Patents are increasingly stretched to cover
"ideas" that twenty years ago all scholars would have agreed
were unpatentable. 31 Most troubling of all are the attempts to
introduce intellectual property rights over mere compilations of
facts. 32 If U.S. intellectual property law had an article of
faith, it was that unoriginal compilations of facts would remain
in the public domain, that this availability of the raw material
of science and speech was as important to the next generation of
innovation as the intellectual property rights themselves. 33
The system would hand out monopolies in inventions and in
original expression, while the facts below (and ideas above)
would remain free for all to build upon. But this premise is
being undermined. Some of the challenges are subtle: in patent
law, stretched interpretations of novelty and nonobviousness
allow intellectual property rights to move closer and closer to
the underlying data layer; gene sequence patents come very close
to being rights over a particular discovered arrangement of
data--C's, G's, A's, and T's. 34 Other challenges are overt: the
European Database Protection Directive did (and various proposed
bills in the United States would) create proprietary rights over
compilations of facts, often without even the carefully framed
exceptions of the copyright scheme, such as the usefully protean
category of fair use.
32
The older strategy of intellectual property law was a "braided"
one: thread a thin layer of intellectual property rights around
a commons of material from which future creators would draw. 35
Even that thin layer of intellectual property rights was limited
so as to allow access to the material when that was necessary to
further the goals of the system. Fair use allows for parody,
commentary, and criticism, and also for "decompilation" of
computer programs so that Microsoft's competitors can reverse
engineer Word's features in order to make sure their program can
convert Word files. It may sound paradoxical, but in a very real
sense protection of the commons was one of the fundamental goals
of intellectual property law.
33
In the new vision of intellectual property, however, property
should be extended everywhere; more is better. Expanding
patentable and copyrightable subject matter, lengthening the
copyright term, giving legal protection to "digital barbed
wire," even if it is used to prevent fair use: each of these can
be understood as a vote of no confidence in the productive
powers of the commons. We seem to be shifting from Brandeis's
assumption that the "noblest of human productions are free as
the air to common use" to the assumption that any commons is
inefficient, if not tragic.
34
The expansion is more than a formal one. It used to be
relatively hard to violate an intellectual property right. The
technologies of reproduction or the activities necessary to
infringe were largely, though not entirely, industrial. Imagine
someone walking up to you in 1950, handing you a book or a
record or a movie reel, and saying "Quick! Do something the law
of intellectual property might forbid." (This, I admit, is a
scenario only likely to come to the mind of a person in my line
of work.) You would have been hard-pressed to do so. Perhaps you
could find a balky mimeograph machine, or press a reel-to-reel
tape recorder into use. You might manage a single unauthorized
showing of the movie--though to how many people? But triggering
the law of intellectual property would be genuinely difficult.
Like an antitank mine, it would not be triggered by the
footsteps of individuals. It was reserved for bigger game.
35
This was no accident. The law of intellectual property placed
its triggers at the point where commercial activity by
competitors could undercut the exploitation of markets by the
rights holder. Copying, performance, distribution--these were
things done by other industrial entities who were in competition
with the owner of the rights: other publishers, movie theaters,
distributors, manufacturers. In practice, if not theory, the law
was predominantly a form of horizontal industry regulation of
unfair competition--made by the people in the affected industries
for the people in the affected industries. The latter point is
worth stressing. Congress would, and still does, literally hand
over the lawmaking process to the industries involved, telling
them to draft their intra-industry contract in the form of a
law, and then to return to Congress to have it enacted. The
public was not at the table, needless to say, and the assumption
was that to the extent there was a public interest involved in
intellectual property law, it was in making sure that the
industries involved got their act together, so that the flow of
new books and drugs and movies would continue. Members of the
public, in other words, were generally thought of as passive
consumers of finished products produced under a form of
intraindustry regulation that rarely implicated any act that an
ordinary person would want, or be able, to engage in.
36
In the world of the 1950s, these assumptions make some
sense--though we might still disagree with the definition of the
public interest. It was assumed by many that copyright need not
and probably should not regulate private, noncommercial acts.
The person who lends a book to a friend or takes a chapter into
class is very different from the company with a printing press
that chooses to reproduce ten thousand copies and sell them. The
photocopier and the VCR make that distinction fuzzier, and the
networked computer threatens to erase it altogether.
37
So how are things different today? If you are a person who
routinely uses computers, the Internet, or digital media,
imagine a day when you do not create--intentionally and
unintentionally--hundreds of temporary, evanescent copies. (If
you doubt this, look in the cache of your browser.) Is there a
day when you do not "distribute" or retransmit fragments of
articles you have read, when you do not seek to share with
friends some image or tune? Is there a day when you do not
rework for your job, for your class work, or simply for pastiche
or fun, some of the digital material around you? In a networked
society, copying is not only easy, it is a necessary part of
transmission, storage, caching, and, some would claim, even
reading. 36
38
As bioinformatics blurs the line between computer modeling and
biological research, digital production techniques blur the
lines between listening, editing, and remaking. "Rip, mix, and
burn," says the Apple advertisement. It marks a world in which
the old regime of intellectual property, operating upstream as a
form of industrial competition policy, has been replaced.
Intellectual property is now in and on the desktop and is
implicated in routine creative, communicative, and just plain
consumptive acts that each of us performs every day. Suddenly,
the triggers of copyright--reproduction, distribution--can be
activated by individual footsteps.
39
Of course, we would hope that in your daily actions you
scrupulously observed the rights--all the rights--of the companies
that have interests in the texts, tunes, images of celebrities,
trademarks, business method patents, and fragments of computer
code you dealt with. Did you? Can you be sure? I teach
intellectual property, but I admit to some uncertainty.
40
I would not have imagined that a temporary image of a Web page
captured in the cache of my browser counted as a "copy" for the
purposes of copyright law. 37 I would have thought that it was
fair use for a company to photocopy articles in journals it
subscribed to, and paid for, in order to circulate them to its
researchers. 38 If a conservative Web site reposted news
articles from liberal newspapers with critical commentary, that,
too, would have seemed like fair use. 39 I would have thought
that it was beneficial competition, and not a trespass, for an
electronic "aggregator" to gather together auction prices or
airline fares, so as to give consumers more choice. 40 I would
not have thought that a search engine that catalogued and
displayed in framed format the digital graphics found on the
Internet would be sued for infringing the copyrights of the
owners of those images. 41 I would not have thought that I might
be sued for violating intellectual property law if I tried to
compete with a printer company by making toner cartridges that
were compatible with its printers. 42
41
The examples go on. I know that the "research exemption" in U.S.
patent law is very tightly limited, but I would have laughed if
you had told me that even a research university was forbidden
from doing research unless that research had no conceivable
practical or academic worth--in other words that even in
academia, in a project with no commercial goal, the research
exemption only covered research that was completely pointless.
43 Why have an exemption at all, in that case? I would have told
an academic cryptography researcher that he need not fear legal
threats from copyright owners simply for researching and
publishing work on the vulnerabilities of copy protection
schemes. 44 I would not have thought that one could patent the
idea of having an electronic Dutch auction on the Internet,
working out the daily prices of a bundle of mutual funds through
simple arithmetic, or buying something online with one click. 45
I would have assumed that celebrities' rights to control their
images should end with their deaths, and that courts would agree
that those rights were tightly limited by the First Amendment.
Yet, in each of these cases, I would have been wrong, or at
least I might be wrong--enough that a sane person would worry.
Not all of the expansive claims eventually triumphed, of course,
but some did. Guessing which would and which would not was hard
even for me, though, as I said, I teach intellectual property
law. You, probably, do not.
42
In 1950 none of this would have mattered. Unless you were in
some related business--as a publisher, broadcaster, film
distributor, or what have you--it would have been hard for you to
trigger the rules of intellectual property law. If you were in
such a business, you were probably very familiar with the rules
that governed your activities and well represented by corporate
counsel who knew them even better. What's more, the rules were
neither as complex nor as counterintuitive as they are now. They
also did not reach as far. The reach of the rights has been
expanded, and their content made more difficult to understand,
at the exact moment that their practical effect has been
transformed. It is not merely that the triggers of intellectual
property law can easily be set off by individual footsteps.
There are now many more triggers and their trip wires are harder
to see.
43
From the point of view of the content industries, of course, all
this is foolishness. It is not some undesirable accident that
intellectual property has come to regulate personal,
noncommercial activity. It is absolutely necessary. Think of
Napster. When individuals engaging in noncommercial activity
have the ability to threaten the music or film industry's
business plan by engaging in the very acts that copyright law
always regulated--namely reproduction and distribution--of course
it is appropriate for them, and the networks they "share" on, to
be subject to liability. What's more, to the extent that copying
becomes cheaper and easier, it is necessary for us to strengthen
intellectual property rights. We must meet the greater danger of
copying with more expansive rights, harsher penalties, and
expanded protections, some of which may indeed have the
practical effect of reducing rights that citizens thought they
had, such as fair use, low-level noncommercial sharing among
personal friends, resale, and so on. Without an increase in
private property rights, in other words, cheaper copying will
eat the heart out of our creative and cultural industries. I
call this claim the Internet Threat.