The Court of Appeals for the Federal Cir_The Public Domain: Enclosing the Commons of the Mind

States's leading patent court) seems to believe that computers

can turn unpatentable ideas into patentable machines. In fact,

in this conception, the computer sitting on your desk becomes

multiple patentable machines--a word processing machine, an e-

mail machine, a machine running the program to calculate the

tensile strength of steel. I want to stress that the other bars

to patentability remain. My example of mile-to-kilometer

conversion would be patentable subject matter but, we hope, no

patent would be granted because the algorithm is not novel and

is obvious. (Sadly, the Patent and Trademark Office seems

determined to undermine this hope by granting patents on the

most mundane and obvious applications.) But the concern here is

not limited to the idea that without a subject matter bar, too

many obvious patents will be granted by an overworked and badly

incentivized patent office. It is that the patent was supposed

to be granted at the very end of a process of investigation and

scientific and engineering innovation. The formulae, algorithms,

and scientific discoveries on which the patented invention was

based remained in the public domain for all to use. It was only

when we got to the very end of the process, with a concrete

innovation ready to go to market, that the patent was to be

given. Yet the ability to couple the abstract algorithm with the

concept of a Turing machine undermines this conception. Suddenly

the patents are available at the very beginning of the process,

even to people who are merely specifying--in the abstract--the

idea of a computer running a particular series of algorithmic

activities.

The words "by means of a computer" are--in the eyes of the

Federal Circuit--an incantation of magical power, able to

transubstantiate the ideas and formulae of the public domain

into private property. And, like the breaking of a minor taboo

that presages a Victorian literary character's slide into

debauchery, once that first wall protecting the public domain

was breached, the court found it easier and easier to breach

still others. If one could turn an algorithm into a patentable

machine simply by adding "by means of a computer," then one

could turn a business method into something patentable by

specifying the organizational or information technology

structure through which the business method is to be

implemented.

If you still remember the first chapters of this book, you might

wonder why we would want to patent business methods.

Intellectual property rights are supposed to be handed out only

when necessary to produce incentives to supply some public good,

incentives that otherwise would be lacking. Yet there are

already plenty of incentives to come up with new business

methods. (Greed and fear are the most obvious.) There is no

evidence to suggest that we need a state-backed monopoly to

encourage the development of new business methods. In fact, we

want people to copy the businesses of others, lowering prices as

a result. The process of copying business methods is called

"competition" and it is the basis of a free-market economy. Yet

patent law would prohibit it for twenty years. So why introduce

patents? Brushing aside such minor objections with ease, the

Court of Appeals for the Federal Circuit declared business

methods to be patentable. Was this what Jefferson had in mind

when he said "I know well the difficulty of drawing a line

between the things which are worth to the public the

embarrassment of an exclusive patent, and those which are not"?

I doubt it.

It is commonplace for courts to look at the purpose of the law

they are enforcing when seeking to understand what it means. In

areas of regulation which are obviously instrumental--aimed at

producing some particular result in the world--that approach is

ubiquitous. In applying the antitrust laws, for example, courts

have given meaning to the relatively vague words of the law by

turning to economic analysis of the likely effects of different

rules on different market structures.

Patent law is as instrumental a structure as one could imagine.

In the United States, for example, the constitutional

authorization to Congress to pass patent and copyright

legislation is very explicit that these rights are to be made

with a purpose in view. Congress has the power "to promote the

progress of science and useful arts, by securing for limited

times to authors and inventors the exclusive right to their

respective writings and discoveries." One might imagine that

courts would try to interpret the patent and copyright laws with

that purpose, and the Jefferson Warning about its constraints,

firmly in mind. Yet utilitarian caution about extending

monopolies is seldom to be found in the reasoning of our chief

patent court.

The difference is striking. Jefferson said that the job of those

who administered the patent system was to see if a patent was

"worth the embarrassment to the public" before granting it. The

Constitution tells Congress to make only those patent laws that

"promote the progress of science and useful arts." One might

imagine that this constitutional goal would guide courts in

construing those same laws. Yet neither Jeffersonian ideals nor

the constitutional text seem relevant to our chief patent court

when interpreting statutory subject matter. Anything under the

sun made by man is patentable subject matter, and there's an end

to it. The case that announced the rule on business methods

involved a patent on the process of keeping accounts in a "hub-

and-spoke" mutual fund--which included multiplying all of the

stock holdings of each fund in a family of funds by the

respective current share price to get total fund value and then

dividing by the number of mutual fund shares that each customer

actually holds to find the balance in their accounts. As my son

observed, "I couldn't do that until nearly the end of third

grade!"6

In theory of course, if the patent is not novel or is obvious,

it will still be refused. The Supreme Court recently held that

the Court of Appeals for the Federal Circuit has made

"nonobvious" too easy a standard to meet.7 It is unclear,

however, whether that judgment will produce concrete effects on

actual practices of patent grants and litigation. The Patent and

Trademark Office puts pressure on examiners to issue patents,

and it is very expensive to challenge those that are granted.

Better, where possible, to rule out certain subject matter in

the first place. Tempted in part by its flirtation with the

"idea made machine" in the context of a computer, the Court of

Appeals for the Federal Circuit could not bring itself to do so.

Where copyright law evolved to wall off and minimize the dangers

of extending protection over software, patent law actually

extended the idea behind software patents to make patentable any

thought process that might produce a useful result. Once

breached, the walls protecting the public domain in patent law

show a disturbing tendency to erode at an increasing rate.

To sum up, the conceptual possibilities presented to copyright

and patent law by the idea of a Turing machine were fascinating.

Should we extend copyright or patent to cover the new

technology? The answer was "we will extend both!" Yet the

results of the extension were complex and unexpected in ways

that we will have to understand if we want to go beyond the

simple but important injunctions of Jefferson and Macaulay. Who

would have predicted that software copyrights could be used to

create a self-perpetuating commons as well as a monopoly over

operating systems, or that judges would talk knowingly of

network effects in curtailing the scope of coverage? Who would

have predicted that patents would be extended not only to basic

algorithms implemented by a computer, but to methods of business

themselves (truly a strange return to legalized business

monopolies for a country whose founders viewed them as one of

the greatest evils that could be borne)?

SYNTHETIC BIOLOGY

If you are a reader of Science, PLoS Biology, or Nature, you

will have noticed some attractive and bizarre photographs

recently. A field of bacteria that form themselves into bull's-

eyes and polka dots. A dim photograph of a woman's face "taken"

by bacteria that have been programmed to be sensitive to light.

You may also have read about more inspiring, if less photogenic,

accomplishments--for example, the group of scientists who managed

to program bacteria to produce artemesinin, a scarce natural

remedy for malaria derived from wormwood. Poking deeper into

these stories, you would have found the phrase "synthetic

biology" repeated again and again, though a precise definition

would have eluded you.

What is "synthetic biology"? For some it is simply that the

product or process involves biological materials not found in

nature. Good old-fashioned biotechnology would qualify. One of

the first biotechnology patent cases, Diamond v. Chakrabarty,

involved some bacteria which Dr. Chakrabarty had engineered to

eat oil slicks--not their natural foodstuff.8 The Supreme Court

noted that the bacteria were not found in nature and found them

to be patentable, though alive. According to the simplest

definition, Dr. Chakrabarty's process would count as synthetic

biology, though this example antedates the common use of the

term by two decades. For other scientists, it is the completely

synthetic quality of the biology involved that marks the edge of

the discipline. The DNA we are familiar with, for example, has

four "base pairs"-- A, C, G, and T. Scientists have developed

genetic alphabets that involve twelve base pairs. Not only is

the result not found in nature, but the very language in which

it is expressed is entirely new and artificial.

I want to focus on a third conception of synthetic biology: the

idea of turning biotechnology from an artisanal process of one-

off creations, developed with customized techniques, to a true

engineering discipline, using processes and parts that are as

standardized and as well understood as valves, screws,

capacitors, or resistors. The electrical engineer told to build

a circuit does not go out and invent her own switches or

capacitors. She can build a circuit using off-the-shelf

components whose performance is expressed using standard

measurements. This is the dream of one group of synthetic

biologists: that biological engineering truly become

engineering, with biological black boxes that perform all of the

standard functions of electrical or mechanical

engineering--measuring flow, reacting to a high signal by giving

out a low signal, or vice versa, starting or terminating a

sequence, connecting the energy of one process to another, and

so on.

Of course an engineer understands the principle behind a

ratchet, or a valve, but he does not have to go through the

process of thinking "as part of this design, I will have to

create a thing that lets stuff flow through one way and not the

other." The valve is the mechanical unit that stands for that

thought, a concept reified in standardized material form which

does not need to be taken apart and parsed each time it is used.

By contrast, the synthetic biologists claim, much of current

biotechnological experimentation operates the way a seventeenth-

century artisan did. Think of the gunsmith making beautiful one-

off classics for his aristocratic patrons, without standardized

calibers, parts, or even standard-gauge springs or screws. The

process produces the gun, but it does not use, or produce,

standard parts that can also be used by the next gunsmith.

Is this portrayal of biology correct? Does it involve some

hyping of the new hot field, some denigration of the older

techniques? I would be shocked, shocked, to find there was hype

involved in the scientific or academic enterprise. But whatever

the degree to which the novelty of this process is being subtly

inflated, it is hard to avoid being impressed by the projects

that this group of synthetic biologists has undertaken. The MIT

Registry of Standard Biological Parts, for example, has exactly

the goal I have just described.

The development of well-specified, standard, and

interchangeable biological parts is a critical step towards the

design and construction of integrated biological systems. The

MIT Registry of Standard Biological Parts supports this goal by

recording and indexing biological parts that are currently being

built and offering synthesis and assembly services to construct

new parts, devices, and systems. . . . In the summer of 2004,

the Registry contained about 100 basic parts such as operators,

protein coding regions, and transcriptional terminators, and

devices such as logic gates built from these basic parts. Today

the number of parts has increased to about 700 available parts

and 2000 defined parts. The Registry believes in the idea that a

standard biological part should be well specified and able to be

paired with other parts into subassemblies and whole systems.

Once the parameters of these parts are determined and

standardized, simulation and design of genetic systems will

become easier and more reliable. The parts in the Registry are

not simply segments of DNA, they are functional units.9

Using the Registry, a group of MIT scientists organizes an

annual contest called iGEM, the International Genetically

Engineered Machine competition. Students can draw from the

standard parts that the Registry contains, and perhaps

contribute their own creations back to it. What kinds of

"genetically engineered machines" do they build?

A team of eight undergraduates from the University of

Ljubljana in Slovenia-- cheering and leaping onto MIT's Kresge

Auditorium stage in green team T-shirts-- won the grand prize

earlier this month at the International Genetically Engineered

Machine (iGEM) competition at MIT. The group--which received an

engraved award in the shape of a large aluminum Lego

piece--explored a way to use engineered cells to intercept the

body's excessive response to infection, which can lead to a

fatal condition called sepsis. The goal of the 380 students on

35 university teams from around the world was to build

biological systems the way a contractor would build a house--with

a toolkit of standard parts. iGEM participants spent the summer

immersed in the growing field of synthetic biology, creating

simple systems from interchangeable parts that operate in living

cells. Biology, once thought too complicated to be engineered

like a clock, computer or microwave oven, has proven to be open

to manipulation at the genetic level. The new creations are

engineered from snippets of DNA, the molecules that run living

cells.10

Other iGEM entries have included E. coli bacteria that had been

engineered to smell like wintergreen while they were growing and

dividing and like bananas when they were finished, a

biologically engineered detector that would change color when

exposed to unhealthy levels of arsenic in drinking water, a

method of programming mouse stem cells to "differentiate" into

more specialized cells on command, and the mat of picture-taking

bacteria I mentioned earlier.

No matter how laudable the arsenic detector or the experimental

technique dealing with sepsis, or how cool the idea of banana-

scented, picture-taking bacteria, this kind of enterprise will

cause some of you to shudder. Professor Drew Endy, one of the

pioneers in this field, believes that part of that reaction

stems from simple novelty. "A lot of people who were scaring

folks in 1975 now have Nobel prizes."11 But even if inchoate,

the concerns that synthetic biology arouses stem from more than

novelty. There is a deep-seated fear that if we see the natural

world of biology as merely another system that we can routinely

engineer, we will have extended our technocratic methods into a

realm that was only intermittently subject to them in a way that

threatens both our structure of self-understanding and our

ecosystem.

To this, the synthetic biologists respond that we are already

engineering nature. In their view, planned, structured, and

rationalized genetic engineering poses fewer dangers than poorly

understood interventions to produce some specific result in

comparative ignorance of the processes we are employing to do

so. If the "code" is transparent, subject to review by a peer

community, and based on known parts and structures, each

identified by a standard genetic "barcode," then the chance of

detecting problems and solving them is higher. And while the

dangers are real and not to be minimized, the potential

benefits--the lives saved because the scarce antimalarial drug

can now be manufactured by energetic E. coli or because a cheap

test can demonstrate arsenic contamination in a village well--are

not to be minimized either.

I first became aware of synthetic biology when a number of the

scientists working on the Registry of Standard Biological Parts

contacted me and my colleague Arti Rai. They did not use these

exact words, but their question boiled down to "how does

synthetic biology fare in intellectual property's categories,

and how can we keep the basics of the science open for all to

use?" As you can tell from this book, I find intellectual

property fascinating--lamentably so perhaps. Nevertheless, I was

depressed by the idea that scientists would have to spend their

valuable time trying to work out how to save their discipline

from being messed up by the law. Surely it would be better to

have them doing, well, science?

They have cause for concern. As I mentioned at the beginning of

this chapter, synthetic biology shares characteristics of both

software and biotechnology. Remember the focus on reducing

functions to black boxes. Synthetic biologists are looking for

the biological equivalents of switches, valves, and inverters.

The more abstractly these are described, the more they come to

resemble simple algebraic expressions, replete with "if, then"

statements and instructions that resolve to "if x, then y, if

not x, then z."

If this sounds reminiscent of the discussion of the Turing

machine, it should. When the broad rules for software and

business methods were enunciated by the federal courts, software

was already a developed industry. Even though the rules would

have allowed the equivalent of patenting the alphabet, the very

maturity of the field minimized the disruption such patents

could cause. Of course "prior art" was not always written down.

Even when it was recorded, it was sometimes badly handled by the

examiners and the courts, partly because they set a very

undemanding standard for "ordinary expertise" in the art.

Nevertheless, there was still a lot of prior experience and it

rendered some of the more basic claims incredible. That is not

true in the synthetic biology field.

Consider a recent article in Nature, "A universal RNAi-based

logic evaluator that operates in mammalian cells."12 The

scientists describe their task in terms that should be familiar.

"A molecular automaton is an engineered molecular system coupled

to a (bio)molecular environment by 'flow of incoming messages

and the actions of outgoing messages,' where the incoming

messages are processed by an 'intermediate set of elements,'

that is, a computer." The article goes on to describe some of

the key elements of so-called "Boolean algebra"-- "or," "and,"

"not," and so on--implemented in living mammalian cells.

These inscriptions of Boolean algebra in cells and DNA sequences

can be patented. The U.S. Department of Health and Human

Services, for example, owns patent number 6,774,222:

This invention relates to novel molecular constructs that

act as various logic elements, i.e., gates and flip-flops. . . .

The basic functional unit of the construct comprises a nucleic

acid having at least two protein binding sites that cannot be

simultaneously occupied by their cognate binding protein. This

basic unit can be assembled in any number of formats providing

molecular constructs that act like traditional digital logic

elements (flips-flops, gates, inverters, etc.).

My colleagues Arti Rai and Sapna Kumar have performed a patent

search and found many more patents of similar breadth.13

What is the concern? After all, this is cutting-edge science.

These seem like novel, nonobvious inventions with considerable

utility. The concern is that the change in the rules over

patentable subject matter, coupled with the Patent and Trademark

Office's handling of both software and biotechnology, will come

together so that the patent is not over some particular

biological circuit, but, rather, over Boolean algebra itself as

implemented by any biotechnological means. It would be as if,

right at the beginning of the computer age, we had issued

patents over formal logic in software--not over a particular

computer design, but over the idea of a computer or a binary

circuit itself.

"By means of a computer" was the magic phrase that caused the

walls around the public domain of algorithms and ideas to

crumble. Will "by means of a biological circuit" do the same?

And--to repeat the key point--unlike computer science,

biotechnology is developing after the hypertrophy of our

intellectual property system. We do not have the immune system

provided by the established practices and norms, the "prior

art," even the community expectations that protected software

from the worst effects of patents over the building blocks of

science.

Following the example of software, the founders of the MIT

Registry of Standard Biological Parts had the idea of protecting

their discipline from overly expansive intellectual property

claims by turning those rights against themselves. Free and open

source software developers have created a "commons" using the

one that requires subsequent developers to keep the source open

and to give improvements back to the software commons--a virtuous

cycle. Could the Registry of Standard Biological Parts do the

same thing? The software commons rests on a license. But, as I

pointed out in the last section, the license depends on an

underlying property right. It is because I have automatic

these terms or you will be violating my copyright." Is there a

we would have to take the extension of copyright that was

required to reach software and stretch it even further. Bill

Gates might argue for intellectual property rights over software

using the logic of his article in Dr. Dobb's Journal. Will the

argument for copyrights over synthetic biological coding be "I

need the property right so I can create a commons"?

In practice, I think the answer is, and should be, no. Of

course, one could think of this as just another type of coding,

making expressive choices in a code of A's, C's, G's, and T's,

just as a programmer does in Java or C??. Yet, software was

already a stretch for copyright law. Synthetic biology strikes

me as a subject matter that the courts, Congress, and the

already distorted outlines-- particularly given the obvious

availability of patent rights. As a matter of conceptual

intuition, I think they will see biological subject matter as

harder to fit into the categories of original expressive

writing. On one level, yes, it is all information, but, on

another level, the idea of programming with gene sequences will

probably raise hackles that the idea of coding inside a

programming language never would. As a normative matter, I think

it would be a poor choice to apply copyright to the products of

synthetic biology. Attempting to produce a particular open

commons, one might enable the kind of hundred-year monopolies

over functional objects that the critics of software copyright

initially feared.

If one wishes to keep the basic ideas and techniques of

synthetic biology open for subsequent innovators, there are

alternatives to the idea of a synthetic biology open source

license. The Registry of Standard Biological Parts or the

BioBricks Foundation can simply put all their work into the

public domain immediately. (This, indeed, is what they are

currently doing.) Such a scheme lacks one key feature of open

source software: the right to force subsequent innovators to

release their code back into the commons. Yet it would make

subsequent patents on the material impossible, because it had

already been published.

Regardless of the decisions made about the future of synthetic

biology, I think its story--coupled to that of software and

biotechnology more generally--presents us with an important

lesson. I started the chapter with the metaphor of Procrustes's

bed. But in the case of software and biotechnology, both the

bed--the categories of copyright and patent--and its

inhabitants--the new technologies--were stretched. Cracks formed

in the boundaries that were supposed to prevent copyright from

being applied to functional articles, to prevent patents

extending to cover ideas, algorithms, and business methods.

Until this point, though the science would have been strange to

Jefferson or his contemporaries, the underlying issue would have

been familiar. The free-trade, Scottish Enlightenment thinkers

of the eighteenth and nineteenth centuries would have scoffed at

the idea that business methods or algorithms could be patented,

let alone that one could patent the "or," "if-then," and "not"

functions of Boolean algebra as implemented by a biological

mechanism. The response, presumably, is to fine tune our patent

standards--to patent the mousetrap and the corkscrew, not the

notion of catching mice or opening bottles by mechanical means.

Still less should we allow the patenting of algebra. These are

fine points. Later scholarship has added formulae, data, and

historical analysis to back up Jefferson's concerns, while never

surpassing his prose. As I said at the beginning of the book, if

we were to print out the Jefferson Warning and slip it into the

shirt pocket of every legislator and regulator, our policy would

be remarkably improved.

But it is here that the story takes a new turn, something that

neither Jefferson nor the philosophers of the Scottish

Enlightenment had thought of, something that goes beyond their

cautions not to confuse intellectual property with physical

property, to keep its boundaries, scope, and term as small as

possible while still encouraging the desired innovation.

Think of the reaction of the synthetic biologists at MIT. They

feared that the basic building blocks of their new discipline

could be locked up, slowing the progress of science and research

by inserting intellectual property rights at the wrong point in

the research cycle. To solve the problem they were led seriously

to consider claiming copyright over the products of synthetic

biology--to fight overly broad patent rights with a privately

constructed copyright commons, to ride the process of legal

expansion and turn it to their own ends. As I pointed out

earlier, I think the tactic would not fare well in this

particular case. But it is an example of a new move in the

debate over intellectual property, a new tactic: the attempt to

create a privately constructed commons where the public domain

created by the state does not give you the freedom that you

believe creativity needs in order to thrive. It is to that

tactic, and the distributed creativity that it enables, that I

will turn to now.

Chapter 8: A Creative Commons

If you go to the familiar Google search page and click the

intimidating link marked "advanced search," you come to a page

that gives you more fine-grained control over the framing of

your query. Nestled among the choices that allow you to pick

your desired language, or exclude raunchy content, is an option

that says "usage rights." Click "free to use or share" and then

search for "physics textbook" and you can download a 1,200-page

physics textbook, copy it, or even print it out and hand it to

your students. Search for "Down and Out in the Magic Kingdom"

and you will find Cory Doctorow's fabulous science fiction

novel, online, in full, for free. His other novels are there

too--with the willing connivance of his commercial publisher.

Search for "David Byrne, My Fair Lady" and you will be able to

download Byrne's song and make copies for your friends. You'll

find songs from Gilberto Gil and the Beastie Boys on the same

page. No need to pay iTunes or worry about breaking the law.

Go to the "advanced" page on Flickr, the popular photo sharing

site, and you will find a similar choice marked "Creative

Commons License." Check that box and then search for "Duke

Chapel" and you will get a selection of beautiful photos of the

lovely piece of faux Gothic architecture that sits about three

hundred yards from the office where I am writing these words.

You can copy those photos, and 66 million others on different

subjects, share them with your friends, print them for your

wall, and, in some cases, even use them commercially. The same

basic tools can be found on a range of specialized search

engines with names like OWL Music Search, BlipTV, SpinExpress,

and OERCommons. Searching those sites, or just sticking with the

advanced options on Google or Yahoo, will get you courses in

music theory, moral philosophy, and C++ programming from famous

universities; a full-length movie called Teach by Oscar-winning

director Davis Guggenheim; and free architectural drawings that

can be used to build low-cost housing. At the Wellcome Library,

you will find two thousand years of medical images that can be

shared freely. Searching for "skeleton" is particularly fun. You

can even go to your favorite search engine, type in the title of

this book, find a site that will allow you to download it, and

send the PDF to a hundred friends, warmly anticipating their

rapturous enjoyment. (Better ask them first.)

All this copying and sharing and printing sounds illegal, but it

is not (at least if you went through the steps I described). And

the things you can do with this content do not stop with simply

reproducing it, printing it on paper, or sending it by e-mail.

Much of it can be changed, customized, remixed--you could rewrite

the module of the class and insert your own illustrations,

animate the graphs showing calculus in action, morph the photo

into something new. If you search for a musician with the

unpromising name "Brad Sucks," you will find a Web site bearing

the modest subtitle "A one man band with no fans." Brad, it

turns out, does not suck and has many fans. What makes him

particularly interesting is that he allows those fans, or anyone

else for that matter, to remix his music and post their

creations online. I am particularly fond of the Matterovermind

remix of "Making Me Nervous," but it may not be to your taste.

Go to a site called ccMixter and you will find that musicians,

famous and obscure, are inviting you to sample and remix their

music. Or search Google for Colin Mutchler and listen to a

haunting song called "My Life Changed." Mr. Mutchler and a

violinist called Cora Beth Bridges whom he had never met created

that song together. He posted a song called "My Life" online,

giving anyone the freedom to add to it, and she did--"My Life."

Changed.

On December 15, 2002, in San Francisco, a charitable

organization called Creative Commons was launched. (Full

disclosure: I have been a proud board member of Creative Commons

since its creation.) Creative Commons was the brainchild of

Larry Lessig, Hal Abelson, and Eric Eldred. All the works I have

just described--and this book itself--are under Creative Commons

licenses. The authors and creators of those works have chosen to

share it with the world, with you, under generous terms, while

reserving certain rights for themselves. They may have allowed

you to copy it, but not to alter it--to make derivative works. Or

they may have allowed you to use it as you wish, so long as you

do so noncommercially. Or they may have given you complete

freedom, provided only that you attribute them as the owner of

the work. There are a few simple choices and a limited menu of

permutations.

What makes these licenses unusual is that they can be read by

two groups that normal licenses exclude--human beings (rather

than just lawyers) and computers. The textbooks, photos, films,

and songs have a tasteful little emblem on them marked with a

"cc" which, if you click on it, links to a "Commons Deed," a

simple one-page explanation of the freedoms you have. There are

even icons--a dollar with a slash through it, for example--that

make things even clearer. Better still, the reason the search

engines could find this material is that the licenses also

"tell" search engines exactly what freedoms have been given.

Simple "metadata" (a fancy word for tags that computers can

read) mark the material with its particular level of freedoms.

This is not digital rights management. The license will not try

to control your computer, install itself on your hard drive, or

break your TV. It is just an expression of the terms under which

the author has chosen to release the work. That means that if

you search Google or Flickr for "works I am free to share, even

commercially," you know you can go into business selling those

textbooks, or printing those photos on mugs and T-shirts, so

long as you give the author attribution. If you search for "show

me works I can build on," you know you are allowed to make what

The idea behind Creative Commons was simple. As I pointed out in

the first chapter, copyright adheres automatically on

"fixation." As soon as you lift the pen from the paper, click

the shutter, or save the file, the work is copyrighted. No

formalities. No need even to use the little symbol (C). Once

copyrighted, the work is protected by the full might of the

legal system. And the legal system's default setting is that

"all rights are reserved" to the author, which means effectively

that anyone but the author is forbidden to copy, adapt, or

publicly perform the work. This might have been a fine rule for

a world in which there were high barriers to publication. The

material that was not published was theoretically under an "all

rights reserved" regime, but who cared? It was practically

inaccessible anyway. After the development of the World Wide

Web, all that had changed. Suddenly people and institutions,

millions upon millions of them, were putting content

online--blogs, photo sites, videologs, podcasts, course

materials. It was all just up there.

But what could you do with it? You could read it, or look at it,

or play it presumably--otherwise why had the author put it up?

But could you copy it? Put it on your own site? Include it in a

manual used by the whole school district? E-mail it to someone?

Translate it into your own language? Quote beyond the boundaries

of fair use? Adapt for your own purposes? Take the song and use

it for your video? Of course, if you really wanted the work a

lot, you could try to contact the author--not always easy. And

one by one, we could all contact each other and ask for

particular types of permissions for use. If the use was large

enough or widespread enough, perhaps we would even think that an

individual contract was necessary. Lawyers could be hired and

terms hashed out.

All this would be fine if the author wished to retain all the

rights that copyright gives and grant them only individually,

for pay, with lawyers in the room. But what about the authors,

the millions upon millions of writers, and photographers and

musicians, and filmmakers and bloggers and scholars, who very

much want to share their work? The Cora Beth Bridges of the

world are never going to write individual letters to the Colin

Mutchlers of the world asking for permission to make a

derivative work out of "My Life." The person who translated my

articles into Spanish or Mandarin, or the people who repost them

on their Web sites, or include them in their anthologies might

have asked permission if I had not granted it in advance. I

doubt though that I would have been contacted by the very

talented person who took images from a comic book about fair use

that I co-wrote and mashed them up with words from a book by

Larry Lessig, and some really nice music from someone none of us

had ever met. Without some easy way to give permission in

advance, and to do so in a way that human beings and computers,

as well as lawyers, can understand, those collaborations will

never happen, though all the parties would be delighted if they

did. These are losses from "failed sharing"--every bit as real as

losses from unauthorized copying, but much less in the public

eye.

Creative Commons was conceived as a private "hack" to produce a

more fine-tuned copyright structure, to replace "all rights

reserved" with "some rights reserved" for those who wished to do

so. It tried to do for culture what the General Public License

had done for software. It made use of the same technologies that

had created the issue: the technologies that made fixation of

expressive content and its distribution to the world something

that people, as well as large concentrations of capital, could

do. As a result, it was able to attract a surprising range of

support--Jack Valenti of the Motion Picture Association of

America and Hillary Rosen of the Recording Industry Association

of America, as well as John Perry Barlow of the Grateful Dead,

whose attitude toward intellectual property was distinctly less

favorable. Why could they all agree? These licenses were not a

choice forced on anyone. The author was choosing what to share

and under what terms. But that sharing created something

different, something new. It was more than a series of isolated

actions. The result was the creation of a global "commons" of

material that was open to all, provided they adhered to the

terms of the licenses. Suddenly it was possible to think of

creating a work entirely out of Creative Commons-licensed

content--text, photos, movies, music. Your coursebook on music

theory, or your documentary on the New York skyline, could

combine your own original material with high-quality text,

illustrations, photos, video, and music created by strangers.

One could imagine entire fields--of open educational content or

of open music--in which creators could work without keeping one

eye nervously on legal threats or permissions.

From one perspective, Creative Commons looks like a simple

device for enabling exercise of authorial control, remarkable

only for the extremely large number of authors making that

choice and the simplicity with which they can do so. From

another, it can be seen as re-creating, by private choice and

automated licenses, the world of creativity before law had

permeated to the finest, most atomic level of science and

culture--the world of folk music or 1950s jazz, of jokes and

slang and recipes, of Ray Charles's "rewording" of gospel songs,

or of Isaac Newton describing himself as "standing on the

shoulders of giants" (and not having to pay them royalties).

Remember, that is not a world without intellectual property. The

cookbook might be copyrighted even if the recipe was not. Folk

music makes it to the popular scene and is sold as a copyrighted

product. The jazz musician "freezes" a particular version of the

improvisation on a communally shared set of musical motifs,

records it, and sometimes even claims ownership of it. Newton

himself was famously touchy about precedence and attribution,

even if not about legal ownership of his ideas. But it is a

world in which creativity and innovation proceed on the basis of

an extremely large "commons" of material into which it was never

imagined that property rights could permeate.

For many of us, Creative Commons was conceived of as a second-

best solution created by private agreement because the best

solution could not be obtained through public law. The best

solution would be a return of the formality requirement--a

requirement that one at least write the words "James Boyle

years of legal protection backed by "strict liability" and

federal criminal law. Those who did not wish to have the legal

monopoly could omit the phrase and the work would pass into the

public domain, with a period of time during which the author

could claim copyright retrospectively if the phrase was omitted

by accident. The default position would become freedom and the

dead weight losses caused by giving legal monopolies to those

who had not asked for them, and did not want them, would

disappear. To return to the words of Justice Brandeis that I

quoted at the beginning of the book:

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. Upon these incorporeal productions the

attribute of property is continued after such communication only

in certain classes of cases where public policy has seemed to

demand it.

Brandeis echoes the Jeffersonian preference for a norm of

freedom, with narrowly constrained exceptions only when

necessary. That preference means that the commons of which I

spoke is a relatively large one--property rights are the

exception, not the norm. Of course, many of those who use

Creative Commons licenses might disagree with that policy

preference and with every idea in this book. They may worship

the DMCA or just want a way to get their song or their article

out there while retaining some measure of control. That does not

matter. The licenses are agnostic. Like a land trust which has a

local pro-growth industrialist and a local environmentalist on

its board, they permit us to come to a restricted agreement on

goals ("make sure this space is available to the public") even

when underlying ideologies differ. They do this using those most

conservative of tools--property rights and licenses. And yet, if

our vision of property is "sole and despotic dominion," these

licenses have created something very different--a commons has

been made out of private and exclusive rights.

My point here is that Creative Commons licenses or the tools of

free and open source software--to which I will turn in a

moment--represent something more than merely a second-best

solution to a poorly chosen rule. They represent a visible

example of a type of creativity, of innovation, which has been

around for a very long time, but which has reached new salience

on the Internet--distributed creativity based around a shared

commons of material.

FREE AND OPEN SOURCE SOFTWARE

In 2007, Clay Shirky, an incisive commentator on networked

culture, gave a speech which anyone but a Net aficionado might

have found simultaneously romantic and impenetrable. He started

by telling the story of a Shinto shrine that has been

painstakingly rebuilt to exactly the same plan many times over

its 1,300-year life--and which was denied certification as a

historic building as a result. Shirky's point? What was

remarkable was not the building. It was a community that would

continue to build and rebuild the thing for more than a

millennium.

From there, Shirky shifted to a discussion of his attempt to get

AT&T to adopt the high-level programming language Perl--which is

released as free and open source software under the General

Public License. From its initial creation by Larry Wall in 1987,

Perl has been adapted, modified, and developed by an

extraordinary range of talented programmers, becoming more

powerful and flexible in the process. As Shirky recounts the

story, when the AT&T representatives asked "where do you get

your support?" Shirky responded, " 'we get our support from a

community'--which to them sounded a bit like 'we get our

Thursdays from a banana.' " Shirky concluded the speech thus:

We have always loved one another. We're human. It's

something we're good at. But up until recently, the radius and

half-life of that affection has been quite limited. With love

alone, you can plan a birthday party. Add coordinating tools and

you can write an operating system. In the past, we would do

little things for love, but big things required money. Now we

can do big things for love.1

There are a few people out there for whom "operating systems"

and "love" could plausibly coexist in a sentence not constructed

by an infinite number of monkeys. For most though, the question

is, what could he possibly have meant?

The arguments in this book so far have taken as a given the

incentives and collective action problems to which intellectual

property is a response. Think of Chapter 1 and the economic

explanation of "public goods." The fact that it is expensive to

do the research to find the right drug, but cheap to manufacture

it once it is identified provides a reason to create a legal

right of exclusion. In those realms where the innovation would

not have happened anyway, the legal right of exclusion gives a

power to price above cost, which in turn gives incentives to

creators and distributors. So goes the theory. I have discussed

the extent to which the logic of enclosure works for the commons

of the mind as well as it did for the arable commons, taking

into account the effects of an information society and a global

Internet. What I have not done is asked whether a global network

actually transforms some of our assumptions about how creation

happens in a way that reshapes the debate about the need for

incentives, at least in certain areas. This, however, is exactly

the question that needs to be asked.

For anyone interested in the way that networks can enable new

collaborative methods of production, the free software movement,

and the broader but less political movement that goes under the

name of open source software, provide interesting case studies.2

Open source software is released under a series of licenses, the

most important being the General Public License (GPL). The GPL

specifies that anyone may copy the software, provided the

license remains attached and the source code for the software

always remains available.3 Users may add to or modify the code,

may build on it and incorporate it into their own work, but if

they do so, then the new program created is also covered by the

GPL. Some people refer to this as the "viral" nature of the

license; others find the term offensive.4 The point, however, is

that the open quality of the creative enterprise spreads. It is

not simply a donation of a program or a work to the public

domain, but a continual accretion in which all gain the benefits

of the program on pain of agreeing to give their additions and

innovations back to the communal project.

For the whole structure to work without large-scale centralized

coordination, the creation process has to be modular, with units

of different sizes and complexities, each requiring slightly

different expertise, all of which can be added together to make

a grand whole. I can work on the sendmail program, you on the

search algorithms. More likely, lots of people try, their

efforts are judged by the community, and the best ones are

adopted. Under these conditions, this curious mix of Kropotkin

and Adam Smith, Richard Dawkins and Richard Stallman, we get

distributed production without having to rely on the proprietary

exclusion model. The whole enterprise will be much, much, much

greater than the sum of the parts.

What's more, and this is a truly fascinating twist, when the

production process does need more centralized coordination, some

governance that guides how the sticky modular bits are put

together, it is at least theoretically possible that we can come

up with the control system in exactly the same way. In this

sense, distributed production is potentially recursive.

Governance processes, too, can be assembled through distributed

methods on a global network, by people with widely varying

motivations, skills, and reserve prices.5

The free and open source software movements have produced

software that rivals or, some claim, exceeds the capabilities of

conventional proprietary, binary-only software.6 Its adoption on

the "enterprise level" is impressive, as is the number and

enthusiasm of the various technical testaments to its strengths.

You have almost certainly used open source software or been its

beneficiary. Your favorite Web site or search engine may run on

it. If your browser is Firefox, you use it every day. It powers

surprising things around you--your ATM or your TiVo. The plane

you are flying in may be running it. It just works.

Governments have taken notice. The United Kingdom, for example,

concluded last year that open source software "will be

considered alongside proprietary software and contracts will be

awarded on a value-for-money basis." The Office of Government

Commerce said open source software is "a viable desktop

alternative for the majority of government users" and "can

generate significant savings. . . . These trials have proved

that open source software is now a real contender alongside

proprietary solutions. If commercial companies and other

governments are taking it seriously, then so must we."7 Sweden

found open source software to be in many cases "equivalent to--or

better than--commercial products" and concluded that software

procurement "shall evaluate open software as well as commercial

solutions, to provide better competition in the market."8

What is remarkable is not merely that the software works

technically, but that it is an example of widespread, continued,

high-quality innovation. The really remarkable thing is that it

works socially, as a continuing system, sustained by a network

consisting both of volunteers and of individuals employed by

companies such as IBM and Google whose software "output" is

nevertheless released into the commons.

Here, it seems, we have a classic public good: code that can be

copied freely and sold or redistributed without paying the

creator or creators. This sounds like a tragedy of the commons

of the kind that I described in the first three chapters of the

book. Obviously, with a nonrival, nonexcludable good like

software, this method of production cannot be sustained; there

are inadequate incentives to ensure continued production. E pur

si muove, as Galileo is apocryphally supposed to have said in

the face of Cardinal Bellarmine's certainties: "And yet it

moves."9 Or, as Clay Shirky put it, "we get our support from a

community."

For a fair amount of time, most economists looked at open source

software and threw up their hands. From their point of view, "we

get our support from a community" did indeed sound like "we get

our Thursdays from a banana." There is an old economics joke

about the impossibility of finding a twenty-dollar bill lying on

a sidewalk. In an efficient market, the money would already have

been picked up. (Do not wait for a punch line.) When economists

looked at open source software they saw not a single twenty-

dollar bill lying implausibly on the sidewalk, but whole bushels

of them. Why would anyone work on a project the fruits of which

could be appropriated by anyone? Since copyright adheres on

fixation--since the computer programmer already has the legal

power to exclude others--why would he or she choose to take the

extra step of adopting a license that undermined that exclusion?

Why would anyone choose to allow others to use and modify the

results of their hard work? Why would they care whether the

newcomers, in turn, released their contributions back into the

commons?

The puzzles went beyond the motivations of the people engaging

in this particular form of "distributed creativity." How could

these implausible contributions be organized? How should we

understand this strange form of organization? It is not a

company or a government bureaucracy. What could it be? To

Richard Epstein, the answer was obvious and pointed to a reason

the experiment must inevitably end in failure:

The open source movement shares many features with a

workers' commune, and is likely to fail for the same reason: it

cannot scale up to meet its own successes. To see the long-term

difficulty, imagine a commune entirely owned by its original

workers who share pro rata in its increases in value. The system

might work well in the early days when the workforce remains

fixed. But what happens when a given worker wants to quit? Does

that worker receive in cash or kind his share of the gain in

value during the period of his employment? If not, then the run-

up in value during his period of employment will be gobbled up

by his successor--a recipe for immense resentment. Yet that

danger can be ducked only by creating a capital structure that

gives present employees separable interests in either debt or

equity in exchange for their contributions to the company. But

once that is done, then the worker commune is converted into a

traditional company whose shareholders and creditors contain a

large fraction of its present and former employers. The bottom

line is that idealistic communes cannot last for the long

haul.10

There are a number of ideas here. First, "idealistic communes

cannot last for the long haul." The skepticism about the staying

power of idealism sounds plausible today, though there are some

relatively prominent counterexamples. The Catholic Church is

also a purportedly idealistic institution. It is based on

canonical texts that are subject to even more heated arguments

about textual interpretation than those which surround the

General Public License. It seems to be surviving the long haul

quite well.

The second reason for doomsaying is provided by the word

"commune." The problems Epstein describes are real where

tangible property and excludable assets are involved. But is the

free and open source community a "commune," holding tangible

property in common and excluding the rest of us? Must it worry

about how to split up the proceeds if someone leaves because of

bad karma? Or is it a community creating and offering to the

world the ability to use, for free, nonrival goods that all of

us can have, use, and reinterpret as we wish? In that kind of

commune, each of us could take all the property the community

had created with us when we left and the commune would still be

none the poorer. Jefferson was not thinking of software when he

talked of the person who lights his taper from mine but does not

darken me, but the idea is the same one. Copying software is not

like fighting over who owns the scented candles or the VW bus.

Does the person who wrote the "kernel" of the operating system

resent the person who, much later, writes the code to manage

Internet Protocol addresses on a wireless network? Why should

he? Now the program does more cool stuff. Both of them can use

it. What's to resent?

How about idealism? There is indeed a broad debate on the

reasons that the system works: Are the motivations those of the

gift economy? Is it, as Shirky says, simply the flowering of an

innate love that human beings have always had for each other and

for sharing, now given new strength by the geographic reach and

cooperative techniques the Internet provides? "With love alone,

you can plan a birthday party. Add coordinating tools and you

can write an operating system." Is this actually a form of

potlatch, in which one gains prestige by the extravagance of the

resources one "wastes"? Is open source an implicit résumé-

builder that pays off in other ways? Is it driven by the

species-being, the innate human love of creation that

continually drives us to create new things even when homo

economicus would be at home in bed, mumbling about public goods

problems?11

Yochai Benkler and I would argue that these questions are fun to

debate but ultimately irrelevant.12 Assume a random distribution

of incentive structures in different people, a global

network--transmission, information sharing, and copying costs

that approach zero--and a modular creation process. With these

assumptions, it just does not matter why they do it. In lots of

cases, they will do it. One person works for love of the

species, another in the hope of a better job, a third for the

joy of solving puzzles, and a fourth because he has to solve a

particular problem anyway for his own job and loses nothing by

making his hack available for all. Each person has their own

reserve price, the point at which they say, "Now I will turn off

Survivor and go and create something." But on a global network,

there are a lot of people, and with numbers that big and

information overhead that small, even relatively hard projects

will attract motivated and skilled people whose particular

reserve price has been crossed.

More conventionally, many people write free software because

they are paid to do so. Amazingly, IBM now earns more from what

it calls "Linux-related revenues" than it does from traditional

patent licensing, and IBM is the largest patent holder in the

world.13 It has decided that the availability of an open

platform, to which many firms and individuals contribute, will

actually allow it to sell more of its services, and, for that

matter, its hardware. A large group of other companies seem to

agree. They like the idea of basing their services, hardware,

and added value on a widely adopted "commons." This does not

seem like a community in decline.

People used to say that collaborative creation could never

produce a quality product. That has been shown to be false. So

now they say that collaborative creation cannot be sustained

because the governance mechanisms will not survive the success

of the project. Professor Epstein conjures up a "central

committee" from which insiders will be unable to cash out--a nice

mixture of communist and capitalist metaphors. All governance

systems--including democracies and corporate boards--have

problems. But so far as we can tell, those who are influential

in the free software and open source governance communities

(there is, alas, no "central committee") feel that they are

doing very well indeed. In the last resort, when they disagree

with decisions that are taken, there is always the possibility

of "forking the code," introducing a change to the software that

not everyone agrees with, and then letting free choice and

market selection converge on the preferred iteration. The free

software ecosystem also exhibits diversity. Systems based on

GNU-Linux, for example, have distinct "flavors" with names like

Ubuntu, Debian, and Slackware, each with passionate adherents

and each optimized for a particular concern--beauty, ease of use,

technical manipulability. So far, the tradition of "rough

consensus and running code" seems to be proving itself

empirically as a robust governance system.

Why on earth should we care? People have come up with a

surprising way to create software. So what? There are at least

three reasons we might care. First, it teaches us something

about the limitations of conventional economics and the

counterintuitive business methods that thrive on networks.

Second, it might offer a new tool in our attempt to solve a

variety of social problems. Third, and most speculative, it

hints at the way that a global communications network can

sometimes help move the line between work and play, professional

and amateur, individual and community creation, rote production

and compensated "hobby."

We should pay attention to open source software because it shows

us something about business methods in the digital world--indeed

in the entire world of "information-based" products, which is

coming to include biotechnology. The scale of your network

matters. The larger the number of people who use your operating

system, make programs for your type of computer, create new

levels for your game, or use your device, the better off you

are. A single fax machine is a paperweight. Two make up a

communications link. Ten million and you have a ubiquitous

communications network into which your "paperweight" is now a

hugely valuable doorway.

This is the strange characteristic of networked goods. The

actions of strangers dramatically increase or decrease the

usefulness of your good. At each stage the decision of someone

else to buy a fax machine increases the value of mine. If I am

eating an apple, I am indifferent about whether you are too. But

if I have a fax machine then my welfare is actually improved by

the decisions of strangers to buy one. The same process works in

reverse. Buy a word processing program that becomes unpopular,

get "locked in" to using it, and find yourself unable to

exchange your work easily with others. Networks matter and

increasing the size of the networks continues to add benefits to

the individual members.

What's true for the users of networks is doubly so for the

producers of the goods that create them. From the perspective of

a producer of a good that shows strong network effects such as a

word processing program or an operating system, the optimal

position is to be the company that owns and controls the

dominant product on the market. The ownership and control is

probably by means of intellectual property rights, which are,

after all, the type of property rights one finds on networks.

The value of that property depends on those positive and

negative network effects. This is the reason Microsoft is worth

so much money. The immense investment in time, familiarity,

legacy documents, and training that Windows or Word users have

provides a strong incentive not to change products. The fact

that other users are similarly constrained makes it difficult to

manage any change. Even if I change word processor formats and

go through the trouble to convert all my documents, I still need

to exchange files with you, who are similarly constrained. From

a monopolist's point of view, the handcuffs of network effects

are indeed golden, though opinions differ about whether or not

this is a cause for antitrust action.

But if the position that yields the most revenue is that of a

monopolist exercising total control, the second-best position

may well be that of a company contributing to a large and widely

used network based on open standards and, perhaps, open

software. The companies that contribute to open source do not

have the ability to exercise monopoly control, the right to

extract every last cent of value from it. But they do have a

different advantage; they get the benefit of all the

contributions to the system without having to pay for them. The

person who improves an open source program may not work for IBM

or Red Hat, but those companies benefit from her addition, just

as she does from theirs. The system is designed to continue

growing, adding more contributions back into the commons. The

users get the benefit of an ever-enlarging network, while the

openness of the material diminishes the lock-in effects. Lacking

the ability to extract payment for the network good itself--the

operating system, say--the companies that participate typically

get paid for providing tied goods and services, the value of

which increases as the network does.

I write a column for the Financial Times, but I lack the fervor

of the true enthusiast in the "Great Game of Markets." By

themselves, counterintuitive business methods do not make my

antennae tingle. But as Larry Lessig and Yochai Benkler have

argued, this is something more than just another business

method. They point us to the dramatic role that openness--whether

in network architecture, software, or content--has had in the

success of the Internet. What is going on here is actually a

remarkable corrective to the simplistic notion of the tragedy of

the commons, a corrective to the Internet Threat storyline and

to the dynamics of the second enclosure movement. This commons

creates and sustains value, and allows firms and individuals to

benefit from it, without depleting the value already created. To

appropriate a phrase from Carol Rose, open source teaches us

about the comedy of the commons, a way of arranging markets and

production that we, with our experience rooted in physical

property and its typical characteristics, at first find

counterintuitive and bizarre. Which brings us to the next

question for open source. Can we use its techniques to solve

problems beyond the world of software production?

In the language of computer programmers, the issue here is "does

it scale?" Can we generalize anything from this limited example?

How many types of production, innovation, and research fit into

the model I have just described? After all, for many innovations

and inventions one needs hardware, capital investment, and

large-scale, real-world data collection--stuff, in its infinite

recalcitrance and facticity. Maybe the open source model

provides a workaround to the individual incentives problem, but

that is not the only problem. And how many types of innovation

or cultural production are as modular as software? Is open

source software a paradigm case of collective innovation that

helps us to understand open source software and not much else?

Again, I think this is a good question, but it may be the wrong

one. My own guess is that an open source method of production is

far more common than we realize. "Even before the Internet" (as

some of my students have taken to saying portentously), science,

law, education, and musical genres all developed in ways that

are markedly similar to the model I have described. The

marketplace of ideas, the continuous roiling development in

thought and norms that our political culture spawns, owes much

more to the distributed, nonproprietary model than it does to

the special case of commodified innovation that we think about

in copyright and patent. Not that copyright and patent are

unimportant in the process, but they may well be the exception

rather than the norm. Commons-based production of ideas is

hardly unfamiliar, after all.

In fact, all the mottos of free software development have their

counterparts in the theory of democracy and open society; "given

enough eyeballs, all bugs are shallow" is merely the most

obvious example. Karl Popper would have cheered.14 The

importance of open source software is not that it introduces us

to a wholly new idea. It is that it makes us see clearly a very

old idea. With open source the technology was novel, the

production process transparent, and the result of that process

was a "product" which outcompeted other products in the

marketplace. "How can this have happened? What about the tragedy

of the commons?" we asked in puzzlement, coming only slowly to

the realization that other examples of commons-based,

nonproprietary production were all around us.

Still, this does not answer the question of whether the model

can scale still further, whether it can be applied to solve

problems in other spheres. To answer that question we would need

to think more about the modularity of other types of inventions.

How much can they be broken down into chunks suitable for

distribution among a widespread community? Which forms of

innovation have some irreducible need for high capital

investment in distinctly nonvirtual components--a particle

accelerator or a Phase III drug trial? Again, my guess is that

the increasing migration of the sciences toward data- and

processing-rich models makes much more of innovation and

discovery a potential candidate for the distributed model.

Bioinformatics and computational biology, the open source

genomics project,15 the BioBricks Foundation I mentioned in the

last chapter, the possibility of distributed data scrutiny by

lay volunteers16--all of these offer intriguing glances into the

potential for the future. Finally, of course, the Internet is

one big experiment in, as Benkler puts it, peer-to-peer cultural

production.17

If these questions are good ones, why are they also the wrong

ones? I have given my guesses about the future of the

distributed model of innovation. My own utopia has it

flourishing alongside a scaled-down, but still powerful,

intellectual property regime. Equally plausible scenarios see it

as a dead end or as the inevitable victor in the war of

productive processes. These are all guesses, however. At the

very least, there is some possibility, even hope, that we could

have a world in which much more of intellectual and inventive

production is free. " 'Free' as in 'free speech,' " Richard

Stallman says, not "free as in 'free beer.' "18 But we could

hope that much of it would be both free of centralized control

and low- or no-cost. When the marginal cost of reproduction is

zero, the marginal cost of transmission and storage approaches

zero, the process of creation is additive, and much of the labor

doesn't charge, the world looks a little different.19 This is at

least a possible future, or part of a possible future, and one

that we should not foreclose without thinking twice. Yet that is

what we are doing. The Database Protection Bills and Directives,

which extend intellectual property rights to the layer of

facts;20 the efflorescence of software patents;21 the UCITA-led

validation of shrinkwrap licenses that bind third parties;22 the

Digital Millennium Copyright Act's anticircumvention

provisions23--the point of all of these developments is not

merely that they make the peer-to-peer model difficult, but that

in many cases they rule it out altogether. I will assert this

point here, rather than argue for it, but I think it can be (and

has been) demonstrated quite convincingly.24

The point is, then, that there is a chance that a new (or old,

but underrecognized) method of production could flourish in ways

that seem truly valuable--valuable to free speech, innovation,

scientific discovery, the wallets of consumers, to what William

Fisher calls "semiotic democracy,"25 and, perhaps, valuable to

the balance between joyful creation and drudgery for hire. True,

it is only a chance. True, this theory's scope of operation and

sustainability are uncertain. But why would we want to foreclose

it? That is what the recent expansions of intellectual property

threaten to do. And remember, these expansions were dubious even

in a world where we saw little or no possibility of the

distributed production model I have described, where discussion

of network effects had yet to reach the pages of The New

Yorker,26 and where our concerns about the excesses of

intellectual property were simply the ones that Jefferson,

Madison, and Macaulay gave us so long ago.

LEARNING FROM THE

SHARING ECONOMY

Accept for the sake of argument that the free software community

actually works, actually produces high-quality products capable

of competing in the market with proprietary alternatives.

Concede for a moment that the adoption of Creative Commons

licenses shows there are millions of creators out there who want

to share their works with others. Many of those creators even

want to allow the world to build on their material. Indeed, let

us concede that the whole history of the Web, from Wikipedia to

the obsessive and usefully detailed sites created on everything

from Vikings to shoe polishes, shows a desire to share one's

knowledge, to build on the work of others one has never met.

These efforts are remarkably varied. Some are ultimately aimed

at profit--even if their results are free. Think of IBM's open

source initiatives or musicians who release Creative Commons-

licensed work in order to get more club gigs. Some are provided

as a volunteer act of benevolence or civic duty, even if they

"compete" with expensive proprietary alternatives. Think of

Wikipedia or MIT's OpenCourseWare. When the infrastructure for

this collaboration does not exist, it gets assembled--and

quickly. Both the GPL and Creative Commons are examples. Accept

all of this. So what?

Lesson number one comes from the nonprofit activities--everything

from Wikipedia to Web sites created by enthusiasts. People like

to create and wish to share. In many cases they will do so

without financial reward. A surprising amount of useful,

creative, or expressive activity is generated without any

financial incentive at all.

Should this cause us to throw out the economic case for

copyrights? No. But it should lead us to reassess it. As I

explained in Chapter 1, copyright provides an incentive for two

distinct activities. First, it offers an incentive to create the

work in the first place. The author of Windows for Dummies or

Harry Potter gets a right to exclude others from copying the

work, a right that he or she can sell in the marketplace. The

goal is to offer a financial reason to devote time to this

particular creative activity. It is this incentive that is most

often cited when attempting to persuade policy makers to expand

protection. Second, it offers an incentive to distribute the

work--to typeset and print large quantities of the work and to

sell it to bookstores, or to broadcast it, or put it on movie

screens.

Each medium is economically different, of course. The economics

of the feature film are different from those of the book, the

magazine, or the operating system. Thus, we have never had very

good figures on the relative importance of these incentives. We

can only guess at how much of the incentive from copyright goes

to encouraging creation and how much to distribution. Until

recently, most types of distribution demanded higher levels of

capital. The industry structure that resulted often consisted of

creators who worked as wage or contract labor for

distributors--either never acquiring copyright in their work in

the first place or immediately transferring that copyright to

their employers. Because distribution was expensive, our

experience with material generated for fun or out of a love of

sharing was an essentially private and local one. You might have

a neighbor's photocopied sheet of baking recipes that worked

well at high altitudes, or of fishing techniques that worked

well on a particular lake, a song that a friend created for a

special occasion, or a short story you wrote for your kids--and

then typed up for them to tell to theirs. Financial incentives

were not needed to encourage the creation of the work, but the

cost of distribution dramatically limited its dissemination.

The single most dramatic thing that the Web has done by lowering

the cost of communication and distribution, at the same moment

that other electronic tools lowered the cost of production, is

to make this local and private activity a global and public one.

Someone, somewhere, will have written the guide to fishing on

that lake, baking at that altitude, washing windows, or treating

stings from Portuguese man-of-war jellyfish. Someone will have

taken a photo of the Duke Chapel or explained the history,

economics, and chemistry of shoe polish or distilling. Someone

might even have created a great class on music theory or

C???programming. Someone will have written a handy little

program to manage DNS requests on a local network. Bizarrely, at

least as far as the economists were concerned, these people all

wanted to share what they had made. Because of the genius of

search engines, and the implicit peer-review function that those

engines deduce from patterns of links to pages, I can find that

material when I need it.

True, much of the material on the Web is inane or insane,

confused, badly written, tendentious, and inaccurate. (It should

be noted that this is hardly a problem confined to the Web or

volunteer-generated material. Personally, I would not want

People magazine or Fox News in a time capsule to represent my

civilization. But some of the material on the Web is clearly

worse.) Yes, Wikipedia is occasionally inaccurate--though in one

test in Nature it stacked up well against the Encyclopedia

Britannica, and it is obviously much more encyclopedic in its

coverage. But all of this misses the point.

Consider how your expectations about information retrieval have

changed in the last fifteen years. We now simply assume that

questions about a piece of architecture, a bit of local history,

a recipe, or the true author of a song can all be answered

within seconds. We have forgotten what it is like to be

routinely in ignorance because of the unavailability of some

piece of information. One podcaster I talked to called it being

a member of "the right-click generation": "When I am walking

around and I see a building, I almost feel as though I ought to

be able to 'right click' it and have the architect's name pop

up." Consider that it now seems normal for a gay Iraqi man in

Baghdad to have a blog that offers hundreds of thousands of

readers around the world a literate and touching account of the

American occupation from a perspective entirely different from

that provided by the mainstream press.27 We think it normal for

a person of moderate resources to be able to speak to the world

from a war zone, whether or not he is affiliated with a

newspaper or credentialed by a corporation.

These examples are not the end of the process. Our methods of

sorting, ranking, and verifying the material generated are still

evolving. They may improve even beyond this point. We are only

fifteen years into this particular experiment, after all. And a

huge amount of this material is produced by our fellow citizens

without the profit motive.

Does this mean that we no longer need copyright or patent

protection to encourage the production and distribution of

creative work? No. The fishing tips are great, but I still might

buy a handsomely illustrated guide to take on the lake with me

or, even better, just stay at home and read A River Runs Through

It. The New Yorker, and not a sheaf of printouts from the Web,

still sits on my coffee table, though much of the high-quality

content I read comes to me online, for free, from strangers who

are generating it for pleasure, not profit, or who profit from

open sharing, not closed control. The online blogosphere

provides a vital counterpoint to mainstream media, but it exists

in a symbiotic--some would say parasitic--relationship with that

media and the network of professional news gatherers for which

it pays. Some of the most interesting open source production

methods actually rely on copyright. Even if they did not, open

source production would not suffice to run our pharmaceutical

industry (though it might help with certain stages of the drug

discovery process).

Still, just as it would be silly to dismiss the importance of

intellectual property based on our experience of blogs and

Wikipedia and open source software, it would be equally silly to

underestimate what the Web has taught us. The Web has enabled an

astonishing flowering of communication and expression, an

astounding democratization of creativity. We have learned just

how strong, and how useful, is the human urge to express,

communicate, invent, and create--provided the barriers to sharing

are lowered. These are the very things that copyright and patent

are supposed to encourage. For us to portray the Web--as the

Internet Threat story line does--as predominantly a threat to

creativity is simply perverse. For us to base our policies only

on that notion would be a tragedy. We might end up stultifying

one of the greatest explosions of human creativity the world has

ever seen by treating it as an unimportant marginal case and

instead designing our rules around the production processes of

commercial culture in the late twentieth century.

The shape of our copyright and to a lesser extent our patent

system comes from a world in which almost all large-scale

distribution was an expensive, capital-intensive enterprise. The

roles of gatekeeper and financier, producer and assembler,

distributor and advertiser, tended naturally to coalesce into

vertically integrated firms or symbiotic commercial

partnerships. Those firms were presumed to be the proxy for the

public interest when it came to intellectual property policy.

Who would know better than they what was needed? Occasionally,

device manufacturers would provide a counterweight--as in the

Sony case--where the defense of a particular "consumer freedom"

actually created a market for a complementary product. Artists

and authors might be trotted out as appealing spokespersons,

though the laws that were made only sporadically reflected their

economic and artistic interests. Librarians and educational

institutions had influence at the edges. Most of the time,

though, it was the assemblers and distributors of content whose

voices and assumptions about markets would be heard.

Out of this pattern of habit and influence, and out of much

deeper notions about authorship and invention that I have

explored elsewhere, developed an ideology, a worldview. Call it

maximalism. Its proponents sincerely believed in it and pursued

it even when it did not make economic sense. (Think how lucky

the movie industry is that it lost the Sony case.) It has been

the subject of this book. Its tenets are that intellectual

property is just like physical property, that rights need to

increase proportionately as copying costs decrease, and that, in

general, increasing levels of intellectual property protection

will yield increasing levels of innovation. Despite its defense

of ever-increasing government-granted monopolies, this ideology

cloaks itself in the rhetoric of free markets. The bumbling

state, whose interventions in the economy normally spell

disaster, turns into a scalpel-wielding genius when its

monopolies and subsidies are provided through intellectual

property rights rather than regulatory fiat. Above all, this way

of seeing the world minimizes the importance of creativity,

expression, and distribution that takes place outside its

framework and ignores or plays down the importance of the input

side of the equation--the need to focus on the material from

which culture and science are made, as well as the protected

expression and inventions made from that raw material.

This process was not--let me stress--was not a simple process of

economic determinism or industry conspiracy. Anyone who claims

that is the thesis of this book simply has not read it.

(Reviewers beware.) Let us start with economic determinism. It

was not a situation in which the law mechanistically recorded

the interests of the most economically important industries in

the area. This was the creation of a worldview, not the steely-

eyed calculation of profit and loss. Not only did many of the

rules we ended up with make no sense from the point of view of

some of the largest economic players in the area--think of the

device manufacturers, the search engines, and so on--they

frequently made no sense from the perspective of those proposing

them. Attempting to twist the law to make it illegal for

technology to interfere with your old business method is

frequently bad for the industry seeking the protection, as well

as for the technology, the market, and the wider society. Since

this worldview makes incumbents systematically blind to profit-

making opportunities that could be secured by greater openness,

rather than greater control, it actually disables them from

pursuing some of the most promising methods by which they could

have made money for their shareholders. Again, the chapter on

the Sony decision offers a salutary example.

Economic determinism does not explain the rules we have. Neither

are those rules simply a result of the manipulation of elected

officials by incumbent industries through crafty campaign

contributions and distorted evidence (though to be sure, there

was a lot of that as well). Many of the people who put forward

this worldview--both lobbyists and lobbied--sincerely believe that

more rights will always lead to more innovation, that all

property rights are the same, that we do not need to think about

both the input and output sides of the equation, that cheaper

copying techniques automatically require greater protections,

and so on.

What of the modest suggestions I put forward here? We could sum

them up thus: do not apply identical assumptions to physical and

intellectual property. Focus on both the inputs to and the

outputs of the creative process; protecting the latter may

increase the cost of the former. Look both at the role of the

public domain and the commons of cultural and scientific

material and at the need to provide incentives for creativity

and distribution through exclusive rights. More rights will not

automatically produce more innovation. Indeed, we should confine

rights as narrowly as possible while still providing the desired

result. Look at the empirical evidence before and after

increasing the level of protection. Pay attention to the

benefits as well as the costs of the new technologies and the

flowering of creativity they enable.

To me, these points seem bland, boring, obvious--verging on

tautology or pablum. To many believers in the worldview I have

described, they are either straightforward heresy or a

smokescreen for some real, underlying agenda--which is identified

as communism, anarchism, or, somewhat confusingly, both.

This account smacks of exaggeration, I know. How could things be

so one-sided? The best answer I can give came from a question I

was asked at a recent conference. The questioner pointed out

politely that it was unlikely that the policy-making process

would ignore such a fundamental and obvious set of points--points

that I myself observed had been well understood for hundreds of

years. I had used many examples of intellectual property rights

being extended--in length, breadth, scope. Why had I not spoken,

he asked, of all the times over the last fifty years when

intellectual property rights had been weakened, curtailed,

shortened? Since human beings were fallible, surely there were

occasions when the length of a copyright or patent term had

proved to be too long, or the scope of a right too large, and

the rights had been narrowed appropriately by legislation. Why

did I not cite any of these? The answer is simple. To the best

of my knowledge, there are none. Legislatively, intellectual

property rights have moved only in one direction--outward. (Court

decisions present a more complex picture, as the previous

chapter's discussion of software copyrights and business method

patents shows.)

What are the odds that the costs of new technologies are always

greater than their benefits as far as intellectual property

rights holders are concerned? This pattern is not a matter of

policies carefully crafted around the evidence. It is the fossil

record of fifty years of maximalism. If I lean toward the other

side of the story it is not because I am a foe of intellectual

property. It is because I believe our policies have become

fundamentally unbalanced--unbalanced in ways that actually blind

us to what is going on in the world of creativity.

We are living through an existence-proof that there are other

methods of generating innovation, expression, and creativity

than the proprietary, exclusionary model of sole control. True,

these methods existed before. Yet they tended to be local or

invisible or both. The Internet has shown conclusively and

visibly that--at least in certain sectors--we can have a global

flowering of creativity, innovation, and information sharing in

which intellectual property rights function in a very different

way than under the standard model of proprietary control. In

some cases, intellectual property rights were simply

irrelevant--much of the information sharing and indexing on the

Web falls within this category. In some cases they were used to

prevent exclusivity. Think of Creative Commons or the General

Public License. In some, they were actually impediments.

Software patents, for example, have a negative effect on open

source software development--one that policy makers are only now

slowly beginning to acknowledge.

It is important not to overstate how far the sharing economy can

get us. It might help to cut the costs of early-stage drug

development, as the Tropical Disease Initiative attempts to do

for neglected diseases. It will not generate a Phase III drug

trial or bring a drug to market. Sharing methods might be used

to generate cult movies such as Star Wreck: In the Pirkinning,

which was created using techniques borrowed from open source

software and is available under a Creative Commons license. They

will not produce a mammoth blockbuster like Ben Hur, or

Waterworld for that matter--results that will generate mixed

feelings. So there are real limitations to the processes I

describe.

But even acknowledging those limitations, it is fair to say that

one of the most striking events to occur during our lifetimes is

the transformation wrought by the Web, a transformation that is

partly driven by the extraordinary explosion of nonproprietary

creativity and sharing across digital networks. The cultural

expectation that a web of expression and information will just

be there--whatever subject we are discussing--is a fundamental

one, the one that in some sense separates us from our children.

With this as a background it is both bizarre and perverse that

we choose to concentrate our policy making only on maintaining

the business methods of the last century, only on the story line

of the Internet Threat, only on the dangers that the technology

poses to creativity (and it does pose some) and never on the

benefits.

What would it mean to pay attention to the changes I have

described? It would mean assessing the impact of rules on both

proprietary and nonproprietary production. For example, if the

introduction of a broad regime of software patents would render

open source software development more difficult (because

individual contributors cannot afford to do a patent search on

every piece of code they contribute), then this should be

reflected as a cost of software patents, to be balanced against

whatever benefits the system brought. A method for encouraging

innovation might, in fact, inhibit one form of it.

Paying attention to the last ten years means we need to realize

that nonproprietary, distributed production is not the poor

relation of traditional proprietary, hierarchically organized

production. This is no hippy lovefest. It is the business method

on which IBM has staked billions of dollars; the method of

cultural production that generates much of the information each

of us uses every day. It is just as deserving of respect and the

solicitude of policy makers as the more familiar methods pursued

by the film studios and proprietary software companies. Losses

due to sharing that failed because of artificially erected legal

barriers are every bit as real as losses that come about because

of illicit copying. Yet our attention goes entirely to the

latter.

The main thrust of the argument here is still firmly within the

Jeffersonian, Scottish Enlightenment tradition. Jefferson does

not wish to give the patent to Oliver Evans because he believes

the invention will be (and has been) generated anyway without

the granting of an intellectual property right and that there

are sufficient information retrieval methods to have practical

access to it. In this case, the information retrieval method is

not Google. It is a polymath genius combing his library in

Monticello for references to Persian irrigation methods. The

"embarrassment" caused by the unnecessary patent is added

expense and bureaucracy in agriculture and impediments to

further innovators, not the undermining of open source software.

But it is the same principle of cautious minimalism, the same

belief that much innovation goes on without proprietary control

and that intellectual property rights are the exception, not the

rule. When Benjamin Franklin, a man who surely deserved patents

under even the most stringent set of tests, chooses to forgo

them because he has secured so much benefit from the

contributions of others, he expresses Shirky's norm nicely.

Indeed, Jefferson's optimism depends partly on a view of

information sharing that captures beautifully the attitudes of

the generation that built the Web. The letter that I discussed

in Chapter 2 was widely cited for precisely this reason.

Remember these lines?

That ideas should freely spread from one to another over the

globe, for the moral and mutual instruction of man, and

improvement of his condition, seems to have been peculiarly and

benevolently designed by nature, when she made them, like fire,

expansible over all space, without lessening their density in

any point, and like the air in which we breathe, move, and have

our physical being, incapable of confinement or exclusive

appropriation.

What could encapsulate better the process by which information

spreads on a global network? What could more elegantly state the

norms of the "information wants to be free" generation? (Though

those who quoted him conveniently omitted the portions of his

analysis where he concedes that there are cases where

intellectual property rights may be necessary and desirable.)

In some ways, then, the explosion of nonproprietary and, in many

cases, noncommercial creativity and information sharing is

simply the vindication of Jefferson's comparison of ideas with

"fire . . . expansible over all space." The Web makes the simile

a reality and puts an exclamation point at the end of the

Jefferson Warning. All the more reason to pay attention to it.

But the creative commons I described here goes further. It

forces us to reconceptualize a form of life, a method of

production, and a means of social organization that we used to

relegate to the private world of informal sharing and

collaboration. Denied a commons by bad intellectual property

rules, we can sometimes build our own--which may in some ways do

even more for us than the zone of free trade, free thought, and

free action that Jefferson wished to protect.

Does all this mean that the Jefferson Warning is no longer

necessary? Can we mitigate the negative effects of intellectual

property expansion through a series of privately constructed

commons? The answers to those questions are, respectively, "no"

and "sometimes." Think of the story of retrospectively extended

intellectual property rights is that they create barriers to

sharing--without producing an incentive in return--in ways that

can never be solved through private agreement. Twentieth century

culture will largely remain off-limits for digitization,

reproduction, adaptation, and translation. No series of private

contracts or licenses can fix the problem because the relevant

parties are not in the room and might not agree if they were.

Even when the parties are available and agree to share, the

benefits may not flow to all equally. Beset by a multitude of

vague patents of questionable worth and uncertain scope, large

information technology firms routinely create patent pools. IBM

tosses in thousands of patents, so does Hewlett or Dell. Each

agrees not to sue the other. This is great for the established

companies; they can proceed without fear of legal action from

the landmine patents that litter the technological landscape. As

far as the participants are concerned, the patent pool is almost

like the public domain--but a privatized public domain, a park

that only residents may enter. But what about the start up

company that does not have the thousands of patents necessary

for entry? They are not in as happy a situation. The patent pool

fixes the problem of poor patent quality and unclear scope--one

that Jefferson was worrying about 200 years ago. But it fixes it

only for the dominant firms, hurting competition in the process.

Attempts to form a commons may also backfire. The coordination

problems are legion. There are difficulties of compatibility in

licenses and the process, no matter how easy, still imposes

transaction costs. Nevertheless, with all of these

qualifications, the idea of the privately created commons is an

important addition to the world view that Jefferson provided, a

new tool in our attempt to craft a working system of innovation

and culture. No one who looks at the Web can doubt the power of

distributed, and frequently uncompensated, creativity in

constructing remarkable reference works, operating systems,

cultural conversations, even libraries of images and music. Some

of that innovation happens largely outside of the world of

intellectual property. Some of it happens in privately created

areas of sharing that use property rights and open, sometimes

even machine-readable, licenses to create a commons on which

others can build. The world of creativity and its methods is

wider than we had thought. That is one of the vital and exciting

lessons the Internet teaches us; unfortunately, the only one our

policy makers seem to hear is "cheaper copying means more

piracy."

Chapter 9: An Evidence-Free Zone

Perhaps some of the arguments in this book have convinced you.

Perhaps it is a mistake to think of intellectual property in the

same way we think of physical property. Perhaps limitations and

exceptions to those rights are as important as the rights

themselves. Perhaps the public domain has a vital and tragically

neglected role to play in innovation and culture. Perhaps

relentlessly expanding property rights will not automatically

bring us increased innovation in science and culture. Perhaps

the second enclosure movement is more troubling than the first.

Perhaps it is unwise to extend copyright again and again, and to

do so retrospectively, locking up most of twentieth-century

culture in order to protect the tiny fragment of it that is

still commercially available. Perhaps technological improvements

bring both benefits and costs to existing rights holders--both of

which should be considered when setting policy. Perhaps we need

a vigorous set of internal limitations and exceptions within

control over the medium of transmission. Perhaps the Internet

should make us think seriously about the power of nonproprietary

and distributed production.

Saying all this gives us some guidance in how we should think.

It points out certain patterns of error. But its prescriptions

are not simple. Precisely because it is not a rejection of

intellectual property rights, but rather a claim that they only

work well through a process of consciously balancing openness

and control, public domain and private right, it still leaves

open the question of where that point of balance is and how to

strike it.

In this chapter I want to offer a suggestion that in any other

field would be stunningly obvious, boring even, but in the

funhouse mirror of intellectual property appears revolutionary.

We should make our policy based on empirical evidence of its

likely effects and there should be a formal requirement of

empirical reconsideration of those policies after they have been

implemented to see if they are working. Why is this a good idea?

Imagine a process of reviewing prescription drugs that goes like

this: representatives from the drug company come to the

regulators and argue that their drug works well and should be

approved. They have no evidence of this beyond a few anecdotes

about people who want to take it and perhaps some very simple

models of how the drug might affect the human body. The drug is

approved. No trials, no empirical evidence of any kind, no

follow-up. Or imagine a process of making environmental

regulations in which there were no data, and no attempts to

gather data, about the effects of the particular pollutants

being studied. Even the harshest critics of regulation would

admit we generally do better than this. But this is often the

way we make intellectual property policy.

So how do we decide the ground rules of the information age?

Representatives of interested industries come to regulators and

ask for another heaping slice of monopoly rent in the form of an

intellectual property right. They have doom-laden predictions,

they have anecdotes, carefully selected to pluck the

heartstrings of legislators, they have celebrities who

testify--often incoherently, but with palpable charisma--and they

have very, very simple economic models. The basic economic model

here is "If you give me a larger right, I will have a larger

incentive to innovate. Thus the bigger the rights, the more

innovation we will get. Right?"

As I have tried to show here using the words of Jefferson and

Macaulay and examples such as term extension, software

copyrights, and garage door openers, this logic is fallacious.

Even without data, the "more is better" idea is obviously

flawed. Copyrighting the alphabet will not produce more books.

Patenting E=?mc2 will not yield more scientific innovation.

Intellectual property creates barriers to, as well as incentives

toward, innovation. Jefferson agonized over the issue of when

the benefits exceed the costs of a new right. "I know well the

difficulty of drawing a line between the things which are worth

to the public the embarrassment of an exclusive patent, and

those which are not." It is not clear that contemporary policy

makers approach issues with anything like the same

sophistication or humility. But it would be an equal mistake to

conclude, as some do, that expansions of intellectual property

are never justified. Extensions of rights can help or hurt, but

without economic evidence beforehand and review afterward, we

will never know. This point should be obvious, banal, even

deeply boring, but sadly it is not.

From Jefferson and Macaulay and Adam Smith, I derived a second

point. In the absence of evidence on either side, the

presumption should be against creating a new, legalized

monopoly. The burden of proof should lie on those who claim, in

any particular case, that the state should step in to stop

competition, outlaw copying, proscribe technology, or restrict

speech. They have to show us that the existing protection is not

enough. But this presumption is a second-best solution and the

empirical emptiness of the debates frustrating.

This makes an occasion where there is some evidence a time for

celebration. What we need is a test case in which one country

adopts the proposed new intellectual property right and another

similarly situated country does not, and we can assess how they

are both doing after a number of years.

There is such a case. It is the "database right."

OWNING FACTS?

Europe adopted a Database Directive in 1996 which gave a high

level of copyright protection to databases and conferred a new

"sui generis" database right even on unoriginal compilations of

facts. In the United States, by contrast, in a 1991 case called

Feist Publications, Inc. v. Rural Telephone Service Co., 499

U.S. 340 (1991), the Supreme Court made it clear that unoriginal

compilations of facts are not copyrightable.

What does all this mean? Take the phone directory--that was the

product at issue in the Feist case. A white pages directory is a

database of names and numbers, compiled in alphabetical order by

name. Does anyone have an intellectual property right over it?

Not the particular dog-eared directory lying next to your phone.

Does the phone company that compiled it own the facts, the

numbers inside that directory? Could they forbid me from copying

them, adding others from surrounding areas, and issuing a

competing directory that I believed consumers would find more

valuable? This was an important issue for Feist because it went

to the heart of their business. They issued regional telephone

directories, combining records from multiple phone companies. In

this case, all the other companies in the region agreed to

license their data to Feist. Rural did not, so Feist copied the

information, checked as many entries as possible, adding

addresses to some of the listings, and published the combined

result. Rural sued and lost. The Supreme Court declared that

mere alphabetical listings and other unoriginal assemblies of

data cannot be copyrighted.

It may seem unfair that much of the fruit of the compiler's

labor may be used by others without compensation. As Justice

Brennan has correctly observed, however, this is not "some

unforeseen byproduct of a statutory scheme." It is, rather, "the

essence of copyright," and a constitutional requirement. The

primary objective of copyright is not to reward the labor of

authors, but "to promote the Progress of Science and useful

Arts." To this end, copyright assures authors the right to their

original expression, but encourages others to build freely upon

the ideas and information conveyed by a work. This principle,

known as the idea/expression or fact/expression dichotomy,

applies to all works of authorship. As applied to a factual

compilation, assuming the absence of original written

expression, only the compiler's selection and arrangement may be

protected; the raw facts may be copied at will. This result is

neither unfair nor unfortunate. It is the means by which

Feist was not as revolutionary as some critics claimed it to be.

Most of the appeals courts in the United States had long held

this to be the case. As the Court pointed out in the passage

above, it is a fundamental tenet of the U.S. intellectual

property system that neither facts nor ideas can be owned. Feist

merely reiterated that point clearly and stressed that it was

not just a policy choice, it was a constitutional requirement--a

limit imposed by the Constitution's grant of power to Congress

to make copyright and patent laws.

Daily politics cares little for the limitations imposed by

constitutions or for the structural principle the Court

describes--that we should leave facts free for others to build

upon. Since 1991, a few database companies have lobbied the

Congress strenuously and continuously to create a special

database right over facts. Interestingly, apart from academics,

scientists, and civil libertarians, many database companies, and

even those well-known property haters, the U.S. Chamber of

Commerce, oppose the creation of such a right. They believe that

database providers can adequately protect themselves with

contracts or technical means such as passwords, can rely on

providing tied services, and so on. Moreover, they argue that

strong database protection may make it harder to generate

databases in the first place; the facts you need may be locked

up. We need to focus on the inputs as well as the outputs of the

process--a point I have tried to make throughout this book. The

pressure to create a new right continues, however, aided by

cries that the United States must "harmonize" with Europe,

where, you will remember, compilations of facts are strongly

protected by intellectual property rights, even if their

arrangement is unoriginal.

So here we have our natural experiment. One major economy

rejects such protection and resists pressure to create a new

right. A different major economic region, at a comparable level

of development, institutes the right with the explicit claim

that it will help to produce new databases and make that segment

of the economy more competitive. Presumably government

economists in the United States and the European Union have been

hard at work ever since, seeing if the right actually worked?

Well, not exactly.

Despite the fact that the European Commission has a legal

obligation to review the Database Directive for its effects on

competition, it was more than three years late issuing its

report. At first, during the review process, no attention was

paid to the actual evidence of whether the Directive helps or

hurts the European Union, or whether the database industry in

the United States has collapsed or flourished. That is a shame,

because the evidence was there and it was fairly shocking. Yet

finally, at the end of the process, the Commission did turn to

the evidence, as I will recount, and came to a remarkable

conclusion--which was promptly stifled for political reasons. But

we are getting ahead of ourselves.

The Court of Appeals for the Federal Circuit (the United