How do we frame the empirical inquiry? I_The Public Domain: Enclosing the Commons of the Mind

rights allow the creation of state-backed monopolies, and "the

general tendency of monopolies," as Macaulay pointed out, is "to

make articles scarce, to make them dear, and to make them bad."

Monopolies are an evil, but they must sometimes be accepted when

they are necessary to the production of some good, some

particular social goal. In this case, the "evil" is obviously

going to be an increase in the price of databases and the legal

ability to exclude competitors from their use--that, after all,

is the point of granting the new right. This right of exclusion

may then have dynamic effects, hampering the ability of

subsequent innovators to build on what went before. The "good"

is that we are supposed to get lots of new databases, databases

that we would not have had but for the existence of the database

right.

If the database right were working, we would expect positive

answers to three crucial questions. First, has the European

database industry's rate of growth increased since 1996, while

the U.S. database industry has languished? (The drop-off in the

U.S. database industry ought to be particularly severe after

1991 if the proponents of database protection are correct; they

argued the Feist case was a change in current law and a great

surprise to the industry.)

Second, are the principal beneficiaries of the database right in

Europe producing databases they would not have produced

otherwise? Obviously, if a society is handing over a database

right for a database that would have been created anyway, it is

overpaying--needlessly increasing prices for consumers and

burdens for competitors. This goes to the design of the

right--has it been crafted too broadly, so that it is not being

targeted to those areas where it is needed to encourage

innovation?

Third, and this one is harder to judge, is the new right

promoting innovation and competition rather than stifling it?

For example, if the existence of the right allowed a one-time

surge of newcomers to the market who then use their rights to

discourage new entrants, or if we promoted some increase in

databases but made scientific aggregation of large amounts of

data harder overall, then the database right might actually be

stifling the innovation it is designed to foment.

Those are the three questions that any review of the Database

Directive must answer. But we have preliminary answers to those

three questions and they are either strongly negative or

extremely doubtful.

Are database rights necessary for a thriving database industry?

The answer appears to be no. In the United States, the database

industry has grown more than twenty-five-fold since 1979

and--contrary to those who paint the Feist case as a

revolution--for that entire period, in most of the United States,

it was clear that unoriginal databases were not covered by

database market. The two major proponents of database protection

in the United States are Reed Elsevier, the owner of Lexis, and

Thomson Publishing, the owner of Westlaw. Fascinatingly, both

companies made their key acquisitions in the U.S. legal database

market after the Feist decision, at which point no one could

have thought unoriginal databases were copyrightable. This seems

to be some evidence that they believed they could make money

even without a database right. How? In the old-fashioned way:

competing on features, accuracy, tied services, making users pay

for entry to the database, and so on.

If those companies believed there were profits to be made, they

were right. Jason Gelman, a former Duke student, pointed out in

a recent paper that Thomson's legal regulatory division had a

profit margin of over 26 percent for the first quarter of 2004.

Reed Elsevier's 2003 profit margin for LexisNexis was 22.8

percent. Both profit margins were significantly higher than the

company average and both were earned primarily in the $6 billion

U.S. legal database market, a market which is thriving without

strong intellectual property protection over databases. (First

rule of thumb for regulators: when someone with a profit margin

over 20 percent asks you for additional monopoly protection,

pause before agreeing.)

What about Europe? There is some good news for the proponents of

database protection. As Hugenholtz, Maurer, and Onsrud point out

in a nice article in Science magazine, there was a sharp, one-

time spike in the number of companies entering the European

database market immediately following the implementation of the

Directive in member states.2 Yet their work, and "Across Two

Worlds,"3 a fascinating study by Maurer, suggests that the rate

of entry then fell back to levels similar to those before the

directive. Maurer's analysis shows that the attrition rate was

also very high in some European markets in the period following

the passage of the directive--even with the new right, many

companies dropped out.

At the end of the day, the British database industry--the

strongest performer in Europe--added about two hundred databases

in the three years immediately after the implementation of the

directive. In France, there was little net change in the number

of databases and the number of providers fell sharply. In

Germany, the industry added nearly three hundred databases

immediately following the directive--a remarkable surge--about two

hundred of which rapidly disappeared. During the same period,

the U.S. industry added about nine hundred databases. Bottom

line? Europe's industry did get a one-time boost and some of

those firms have stayed in the market; that is a benefit, though

a costly one. But database growth rates have gone back to

predirective levels, while the anticompetitive costs of database

protection are now a permanent fixture of the European

landscape. The United States, by contrast, gets a nice steady

growth rate in databases without paying the monopoly cost.

(Second rule of thumb for regulators: Do no harm! Do not create

rights without strong evidence that the incentive effect is

worth the anticompetitive cost.)

Now the second question. Is the Database Directive encouraging

the production of databases we would not have gotten otherwise?

Here the evidence is clear and disturbing. Again, Hugenholtz et

al. point out that the majority of cases brought under the

directive have been about databases that would have been created

anyway--telephone numbers, television schedules, concert times. A

review of more recent cases reveals the same pattern. These

databases are inevitably generated by the operation of the

business in question and cannot be independently compiled by a

competitor. The database right simply serves to limit

competition in the provision of the information. Recently, the

European Court of Justice implicitly underscored this point in a

series of cases concerning football scores, horse racing

results, and so on. Rejecting a protectionist and one-sided

opinion from its Advocate General, the court ruled that the mere

running of a business which generates data does not count as

"substantial investment" sufficient to trigger the database

right. It would be nice to think that this is the beginning of

some skepticism about the reach of the directive. Yet the court

provides little discussion of the economic reasons behind its

interpretation; the analysis is merely semantic and

definitional, a sharp contrast to its competition decisions.

So what kinds of creations are being generated by this bold new

right? The answer is somewhere between bathos and pathos. Here

are some of the wonderful "databases" that people found it

worthwhile litigating over: a Web site consisting of a

collection of 259 hyperlinks to "parenting resources," a

collection of poems, an assortment of advertisements, headings

referring to local news, and charts of popular music. The sad

list goes on and on. The European Commission might ask itself

whether these are really the kind of "databases" that we need a

legal monopoly to encourage and that we want to tie up judicial

resources protecting. The point that many more such factual

resources can be found online in the United States without any

legalized database protection also seems worthy of note. At the

very least, the evidence indicates that the right is drawn much

too broadly and triggered too easily in ways that produce

litigation but little social benefit.

Now, in one sense, these lawsuits over trivial collections of

hyperlinks and headlines might be seen as irrelevant. They may

indicate we are handing out rights unnecessarily--did we really

need a legal monopoly, and court involvement, to get someone to

compile hyperlinks on a Web page? But it is hard to see social

harm. As with the patents over "sealed crustless" peanut butter

sandwiches or "methods of swinging on a swing," we may shake our

heads at the stupidity of the system, but if the problems

consist only of trivial creations, at least we are not likely to

grieve because some vital piece of information was locked up.

But we should not be so quick to declare such examples

irrelevant. They tend to show that the system for drawing the

boundaries of the right is broken--and that is of general

concern, even if the issue at hand is not.

Finally, is the database right encouraging scientific innovation

or hurting it? Here the evidence is merely suggestive.

Scientists have claimed that the European database right,

together with the perverse failure of European governments to

take advantage of the limited scientific research exceptions

allowed by the directive, have made it much harder to aggregate

data, to replicate studies, and to judge published articles. In

fact, academic scientific bodies have been among the strongest

critics of database protection. But negative evidence, by its

nature, is hard to produce; "show me the science that did not

get done!" Certainly, both U.S. science and commerce have

benefited extraordinarily from the openness of U.S. data policy.

I will deal with this issue in the next part of this chapter.

If the United States does not give intellectual property

protection to raw data, to facts, how is it that the database

industry has managed to thrive here and to do better than in

Europe, which has extremely strong protection? The economists

described in Chapter 1 would surely tell us that this is a

potential "public goods" problem. If it is hard to exclude

others from the resource--it is cheap and easy to copy--and if the

use of the resource is not "rival"--if I don't use up your facts

by consulting them--then we ought to see the kind of dystopia

economists predict. What would that consist of? First it might

result in underproduction. Databases with a social value higher

than their cost of creation would not get made because the

creator could not get an adequate return on investment. In some

cases it might even lead to the reverse--overproduction, where

each party creates the database for itself. We get a social

overinvestment to produce the resource because there is no legal

right to exclude others from it. If you gave the first creator

an intellectual property right over the data, they could sell to

subsequent users at a price lower than their own cost to create

the database. Everyone would win. But the United States did not

give the intellectual property right and yet its database

industry is flourishing. There are lots of commercial database

providers and many different kinds of databases. How can this

be? Is the economic model wrong?

The answer to that is no, the model is not wrong. It is,

however, incomplete and all too often applied in sweeping ways

without acknowledging that its basic assumptions may not hold in

a particular case. That sounds vague. Let me give a concrete

example. Westlaw is one of the two leading legal database

providers and, as I mentioned before, one of the key proponents

of creating intellectual property rights over unoriginal

databases. (There is considerable question whether such a law

would be constitutional in the United States, but I will pass

over that argument for the moment.) Westlaw's "problem" is that

much of the material that it provides to its subscribers is not

covered by copyright. Under Section 105 of the U.S. Copyright

Act, works of the federal government cannot be copyrighted. They

pass immediately into the public domain. Thus all the federal

court decisions, from district courts all the way up to the

Supreme Court, all the federal statutes, the infinite complexity

of the Federal Register, all this is free from copyright. This

might seem logical for government-created work, for which the

taxpayer has already paid, but as I will explain in the next

section of the chapter, not every country adopts such a policy.

West, another Thomson subsidiary that owns Westlaw, publishes

the standard case reporter series. When lawyers or judges refer

to a particular opinion, or quote a passage within an opinion,

they will almost always use the page number of the West edition.

After all, if no one else can find the cases or statutes or

paragraphs of an opinion that you are referring to, legal

argument is all but impossible. (This might seem like a great

idea to you. I beg to differ.) As electronic versions of legal

materials became more prevalent, West began getting more

competition. Its competitors did two things that West found

unforgivable. First, they frequently copied the text of the

cases from West's electronic services, or CD-ROMs, rather than

retyping them themselves. Since the cases were works of the

federal government, this was perfectly legal provided the

competitors did not include West's own material, such as

summaries of the cases written by its employees or its key

number system for finding related issues. Second, the

competitors would include, within their electronic editions, the

page numbers to West's editions. Since lawyers need to cite the

precise words or arguments they are referring to, providing the

raw opinion alone would have been all but useless. Because

West's page numbers were one of the standard ways to cite case

opinions, competitors would indicate where the page breaks on

the printed page would have been, just as West did in its own

databases.

West's reaction to all of this was exactly like Apple's reaction

in the story I told in Chapter 5 about the iPod or like Rural's

reaction to the copying of its phone directory. This was theft!

They were freeloading on West's hard work! West had mixed its

sweat with these cites, and so should be able to exclude other

people from them! Since it could not claim copyright over the

cases, West claimed copyright over the order in which they were

arranged, saying that when its competitors provided its page

numbers for citation purposes, they were infringing that

In the end, West lost its legal battles to claim copyright over

the arrangement of the collections of cases and the sequence in

which they were presented. The Court held that, as with the

phone directory, the order in which the cases were arranged

lacked the minimum originality required to sustain a copyright

claim.4 At this stage, according to the standard public goods

story, West's business should have collapsed. Unable to exclude

competitors from much of the raw material of its databases, West

would be undercut by competitors. More importantly, from the

point of view of intellectual property policy, its fate would

deter potential investors in other databases--databases that we

would lose without even knowing they could have been possible.

Except that is not the way it turned out. West has continued to

thrive. Indeed, its profits have been quite remarkable. How can

this be?

The West story shows us three ways in which we can leap too

quickly from the abstract claim that some information goods are

public goods--nonexcludable and nonrival--to the claim that this

particular information good has those attributes. The reality is

much more complex. Type www.westlaw.com into your Internet

browser. That will take you to the home page of West's excellent

legal research service. Now, I have a password to that site. You

probably do not. Without a password, you cannot get access to

West's site at all. To the average consumer, the password acts

as a physical or technical barrier, making the good

"excludable"--that is, making it possible to exclude someone from

it without invoking intellectual property rights. But what about

competitors? They could buy access and use that access to

download vast quantities of the material that is unprotected by

barriers, ranging from technical limits on how much can be

downloaded to contractual restrictions on what those who

purchase its service can do ("No copying every federal case,"

for example).

Let's say the competitor somehow manages to get around all this.

Let's say it somehow avoids copying the material that West does

have a copyright over--such as the headnotes and case synopses.

The competitor launches their competing site at lower prices

amidst much fanfare. Do I immediately and faithlessly desert

West for a lower-priced competitor? Not at all. First of all,

there are lots of useful things in the West database that are

covered by copyright--law review articles and certain treatises,

for example. The competitor frequently cannot copy those without

coming to the same sort of agreements that West has with the

material is as important as the cases. If West has both, and the

competitor only one, I will stick with West. Second, West's

service is very well designed. (It is only their copyright

policies I dislike, not the product.) If a judge cites a law

review article in a case, West will helpfully provide a

hyperlink to the precise section of the article she is referring

to. I can click on it and in a second see what the substance of

the argument is. The reverse is true if a law review article

cites a statute or a case. Cases have "flags" on them indicating

whether they have been overruled or cited approvingly in

subsequent decisions. In other words, faced with the competitive

pressure of those who would commoditize their service and

provide it at lower cost, West has done what any smart company

would: added features and competed by offering a superior

service. Often it has done so by "tying" its uncopyrightable

data structures to its huge library of copyrighted legal

material.

The company that challenged Westlaw in court was called

Hyperlaw. It won triumphantly. The courts declared that federal

cases and the page numbers in the West volumes were in the

public domain. That decision came in 1998 and Westlaw has

lobbied hard since then to reverse it by statute, to create some

version of the Database Directive in the United States. To date,

they have failed. The victor, Hyperlaw, has since gone out of

business. Westlaw has not.

This little story contains a larger truth. It is true that

innovation and information goods will, in general, tend to be

less excludable and less rival than a ham sandwich, say. But, in

practice, some of them will be linked or connected in their

social setting to other phenomena that are highly excludable.

The software can easily be copied--but access to the help lines

can be restricted with ease. Audiences cannot easily be excluded

from viewing television broadcasts, but advertisers can easily

be excluded from placing their advertisements in those programs.

The noncopyrightable court decisions are of most use when

embedded within a technical system that gives easy access to

other material--some of it copyrighted and all of it protected by

technical measures and contractual restrictions. The music file

can be downloaded; the band's T-shirt or the experience of the

live concert cannot. Does this mean that we never need an

intellectual property right? Not at all. But it does indicate

that we need to be careful when someone claims that "without a

new intellectual property right I am doomed."

One final story may drive home the point. When they read Feist

v. Rural, law students often assume that the only reason Feist

offered to license the white pages listings from Rural is

because they (mistakenly) thought they were copyrighted. This is

unlikely. Most good copyright lawyers would have told you at the

time of the Feist case that the "sweat of the brow" decisions

that gave copyright protection based on hard work were not good

law. Most courts of appeals had said so. True, there was some

legal uncertainty, and that is often worth paying to avoid. But

switch the question around and suppose it is the day after the

Supreme Court decides the Feist case, and Feist is heading off

into another market to try to make a new regional phone

directory. Do they now just take the numbers without paying for

them, or do they still try to negotiate a license? The latter is

overwhelmingly likely. Why? Well, for one thing, they would get

a computer-readable version of the names and would not have to

retype or optically scan them. More importantly, the contract

could include a right to immediate updates and new listings.

The day after the Feist decision, the only thing that had

changed in the telephone directory market was that telephone

companies knew for sure, rather than merely as a probability,

that if they refused to license, their competitors could

laboriously copy their old listings without penalty. The nuclear

option was no longer available. Maybe the price demanded would

be a little lower. But there would still be lots of good reasons

for Feist to buy the information, even though it was

uncopyrighted. You do not always need an intellectual property

right to make a deal. Of course, that is not the whole story.

Perhaps the incentives provided by other methods are

insufficient. But in the U.S. database industry they do not seem

to have been. Quite the contrary. The studies we have on the

European and the American rules on database rights indicate that

the American approach simply works better.

I was not always opposed to intellectual property rights over

data. Indeed, in a book written before the enactment of the

Database Directive, I said that there was a respectable economic

argument that such protection might be warranted and that we

needed research on the issue.5 Unfortunately, Europe got the

right without the research. The facts are now in. If the

European Database Directive were a drug, the government would be

pulling it from the market until its efficacy and harmfulness

could be reassessed. At the very least, the Commission needed a

detailed empirical review of the directive's effects, and needs

to adjust the directive's definitions and fine-tune its

limitations. But there is a second lesson. There is more

discussion of the empirical economic effects of the Database

Directive in this chapter than in the six-hundred-page review of

the directive that the European Commission paid a private

company to conduct, and which was the first official document to

consider the issue.

That seemed to me and to many other academics to be a scandal

and we said so as loudly as we could, pointing out the empirical

evidence suggesting that the directive was not working. Yet if

it was a scandal, it was not a surprising one, because the

evidence-free process is altogether typical of the way we make

intellectual property policy. President Bush is not the only one

to make "faith-based" decisions.

There was, however, a ray of hope. In its official report on the

competitive effects of the Database Directive, the European

Commission recently went beyond reliance on anecdote and

industry testimony and did something amazing and admirable. It

conducted an empirical evaluation of whether the directive was

actually doing any good.

The report honestly described the directive as "a Community

creation with no precedent in any international convention."

Using a methodology similar to the one in this chapter on the

subject, the Commission found that "the economic impact of the

'sui generis' right on database production is unproven.

Introduced to stimulate the production of databases in Europe,

the new instrument has had no proven impact on the production of

databases."6

In fact, their study showed that the production of databases had

fallen to pre-directive levels and that the U.S. database

industry, which has no such intellectual property right, was

growing faster than the European Union's. The gap appears to be

widening. This is consistent with the data I had pointed out in

newspaper articles on the subject, but the Commission's study

was more recent and, if anything, more damning.

Commission insiders hinted that the study may be part of a

larger--and welcome--transformation in which a more professional

and empirical look is being taken at the competitive effects of

intellectual property protection. Could we be moving away from

faith-based policy in which the assumption is that the more new

rights we create, the better off we will be? Perhaps. But

unfortunately, while the report was a dramatic improvement,

traces of the Commission's older predilection for faith-based

policy and voodoo economics still remain.

The Commission coupled its empirical study of whether the

directive had actually stimulated the production of new

databases with another intriguing kind of empiricism. It sent

out a questionnaire to the European database industry asking if

they liked their intellectual property right--a procedure with

all the rigor of setting farm policy by asking French farmers

how they feel about agricultural subsidies. More bizarrely

still, the report sometimes juxtaposed the two studies as if

they were of equivalent worth. Perhaps this method of decision

making could be expanded to other areas. We could set

communications policy by conducting psychoanalytic interviews

with state telephone companies--let current incumbents' opinions

determine what is good for the market as a whole. "What is your

emotional relationship with your monopoly?" "I really like it!"

"Do you think it hurts competition?" "Not at all!"

There are also a few places where the reasoning in the report

left one scratching one's head. One goal of the database right

was to help close the gap between the size of the European and

U.S. database markets. Even before the directive, most European

countries already gave greater protection than the United States

to compilations of fact. The directive raised the level still

higher. The theory was that this would help build European

market share. Of course, the opposite is also possible. Setting

intellectual property rights too high can actually stunt

innovation. In practice, as the Commission's report observes,

"the ratio of European / U.S. database production, which was

nearly 1:2 in 1996, has become 1:3 in 2004."7 Europe had started

with higher protection and a smaller market. Then it raised its

level of protection and lost even more ground. Yet the report

was oddly diffident about the possibility that the U.S. system

actually works better.

In its conclusion, the report offered a number of possibilities,

including repealing the directive, amending it to limit or

remove the "sui generis" right while leaving the rest of the

directive in place, and keeping the system as it is. The first

options are easy to understand. Who would want to keep a system

when it is not increasing database production, or European

market share, and, indeed, might be actively harmful? Why leave

things as they are? The report offers several reasons.

First, database companies want to keep the directive. (The

report delicately notes that their "endorsement . . . is

somewhat at odds with the continued success of U.S. publishing

and database production that thrives without . . . [such]

protection," but nevertheless appears to be "a political

reality.") Second, repealing the directive would reopen the

debate on what level of protection is needed. Third, change may

be costly.

Imagine applying these arguments to a drug trial. The patients

in the control group have done better than those given the drug

and there is evidence that the drug might be harmful. But the

drug companies like their profits and want to keep the drug on

the market. Though "somewhat at odds" with the evidence, this is

a "political reality." Getting rid of the drug would reopen the

debate on the search for a cure. Change is costly--true. But what

is the purpose of a review if the status quo is always to be

preferred?

The final result? Faced with what Commission staff members tell

me was a tidal wave of lobbying from publishers, the Commission

quietly decided to leave the directive unchanged, despite the

evidence. The result itself is not remarkable. Industry capture

of a regulatory apparatus is hardly a surprise. What is

remarkable is that this is one of the first times any entity

engaged in making intellectual property policy on the

international level has even looked seriously at the empirical

evidence of that policy's effects.

To be sure, figures are thrown around in hearings. The software

industry will present studies showing, for example, that it has

lost billions of dollars because of illicit copying. It has

indeed lost profits relative to what it could get with all the

benefits of cheaper copying and transmission worldwide and with

perfect copyright enforcement as well. (Though the methodology

of some of the studies, which assumes that each copier would

have paid full price--is ridiculous.) But this simply begs the

question. A new technology is introduced that increases the size

of your market and decreases your costs dramatically, but also

increases illicit copying. Is this cause for state intervention

to increase your level of rights or the funds going toward

enforcement of copyright law, as opposed to any other law

enforcement priority? The question for empirical analysis, both

before and after a policy change, should be "Is this change

necessary in order to maintain incentives for production and

distribution? Will whatever benefits it brings outweigh the

costs of static and dynamic losses--price increases to consumers

and impediments to future innovators?" The content companies

might still be able to justify the extensions of their rights.

But they would be doing so in the context of a rational,

evidence-based debate about the real goals of intellectual

property, not on the assumption that they have a natural right

to collect all the economic surplus gained by a reduction in the

costs of reproduction and distribution.

DOES PUBLIC INFORMATION WANT TO BE FREE?

The United States has much to learn from Europe about

information policy. The ineffectively scattered U.S. approach to

data privacy, for example, produces random islands of privacy

protection in a sea of potential vulnerability. Until recently,

your video rental records were better protected than your

medical records. Europe, by contrast, has tried to establish a

holistic framework, a much more effective approach. But there

are places where the lessons should flow the other way. The

first one, I have suggested, is database protection. The second

is a related but separate issue: the legal treatment of publicly

generated data, the huge, and hugely important, flow of

information produced by government-funded activities--from

ordnance survey maps and weather data to state-produced texts,

traffic studies, and scientific information. How is this flow of

information distributed? The norm turns out to be very different

in the United States and in Europe.

In one part of the world, state-produced data flows are

frequently viewed as revenue sources. They are often copyrighted

or protected by database rights. Many of the departments which

produce them attempt to make a profit or at least to recover

their entire operating costs through user fees. It is heresy to

suggest that the taxpayer has already paid for the production of

this data and should not have to do so twice. The other part of

the world practices a benign form of information socialism. By

law, any text produced by the central government is free from

basic norm is that public data flows should be available at the

cost of reproduction alone.

It is easy to guess which area is which. The United States is

surely the profit and property-obsessed realm, Europe the place

where the state takes pride in providing data as a public

service? No, actually, it is the other way around.

Take weather data. The United States makes complete weather data

available to all at the cost of reproduction. If the superb

government Web sites and data feeds are insufficient, for the

cost of a box of blank DVDs you can have the entire history of

weather records across the continental United States. European

countries, by contrast, typically claim government copyright

over weather data and often require the payment of substantial

fees. Which approach is better? I have been studying the issue

for fifteen years, and if I had to suggest a single article it

would be the magisterial study by Peter Weiss called "Borders in

Cyberspace," published by the National Academies of Science.8

Weiss shows that the U.S. approach generates far more social

wealth. True, the information is initially provided for free,

but a thriving private weather industry has sprung up which

takes the publicly funded data as its raw material and then adds

value to it. The U.S. weather risk management industry, for

example, is more than ten times bigger than the European one,

employing more people, producing more valuable products,

generating more social wealth. Another study estimates that

Europe invests 9.5 billion Euros in weather data and gets

approximately 68 billion back in economic value--in everything

from more efficient farming and construction decisions to better

holiday planning--a sevenfold multiplier. The United States, by

contrast, invests twice as much--19 billion--but gets back a

return of 750 billion Euros, a thirty-nine-fold multiplier.

Other studies suggest similar patterns elsewhere, in areas

ranging from geospatial data to traffic patterns and

agriculture. The "free" information flow is better at priming

the pump of economic activity.

Some readers may not thrill to this way of looking at things

because it smacks of private corporations getting a "free ride"

on the public purse--social wealth be damned. But the benefits of

open data policies go further. Every year the monsoon season

kills hundreds and causes massive property damage in Southeast

Asia. One set of monsoon rains alone killed 660 people in India

and left 4.5 million homeless. Researchers seeking to predict

the monsoon sought complete weather records from the United

States and Europe so as to generate a model based on global

weather patterns. The U.S. data was easily and cheaply available

at the cost of reproduction. The researchers could not afford to

pay the price asked by the European weather services, precluding

the "ensemble" analysis they sought to do. Weiss asks

rhetorically, "What is the economic and social harm to over 1

billion people from hampered research?" In the wake of the

outpouring of sympathy for tsunami victims in the same region,

this example seems somehow even more tragic. Will the pattern be

repeated with seismographic, cartographic, and satellite data?

One hopes not.

The European attitude may be changing. Competition policy has

already been a powerful force in pushing countries to rethink

their attitudes to government data. The European Directive on

the Reuse of Public Sector Information takes large strides in

the right direction, as do studies by the Organization for

Economic Co-operation and Development (OECD) and several

national initiatives.9 Unfortunately, though, most of these

follow the same pattern. An initially strong draft is watered

down and the utterly crucial question of whether data should be

provided at the marginal cost of reproduction is fudged or

avoided. This is a shame. Again, if we really believed in

evidence-based policy making, the debate would be very

different.

BREAKING THE DEAL

What would the debate look like if we took some of the steps I

mention here? Unfortunately there are very few examples of

evidence-based policy making, but the few that do exist are

striking.

In 2006, the government-convened Gowers Review of intellectual

property policy in the United Kingdom considered a number of

proposals on changes to copyright law, including a retrospective

extension of sound recording copyright terms.10 The copyright

term for sound recordings in the United Kingdom is fifty years.

(It is longer for compositions.) At the end of the fifty-year

period, the recording enters the public domain. If the

composition is also in the public domain--the great orchestral

works of Beethoven, Brahms, and Mozart, for example, or the jazz

classics of the early twentieth century--then anyone can copy the

recording. This means we could make it freely available in an

online repository for music students throughout Britain--perhaps

preparing the next generation of performers--or republish it in a

digitally cleansed and enhanced edition. If the composition is

still under copyright, as with much popular music, then the

composer is still entitled to a licensing fee, but now any music

publisher who pays that fee can reissue the work--introducing

competition and, presumably, bringing down prices of the

recording.

The recording industry, along with successful artists such as

Sir Cliff Richard and Ian Anderson of Jethro Tull, wished to

extend the fifty-year term to ninety-five years, or perhaps even

longer--the life of the performer, plus seventy years. This

proposal was not just for new recordings, but for the ones that

have already been made.

Think of the copyright system as offering a deal to artists and

record companies. "We will enlist the force of the state to give

you fifty years of monopoly over your recordings. During that

time, you will have the exclusive right to distribute and

reproduce your recording. After that time, it is available to

all, just as you benefited from the availability of public

domain works from your predecessors. Will you make records under

these terms?"

Obviously, fifty years of legalized exclusivity was enough of an

incentive to get them to make the music in the first place. We

have the unimpeachable evidence that they actually did. Now they

want to change the terms of the deal retrospectively. They say

this will "harmonize" the law internationally, give recordings

the same treatment as compositions, help struggling musicians,

and give the recording industry some extra money that it might

spend on developing new talent. (Or on Porsches, shareholder

dividends, and plastic ducks. If you give me another forty-five

years of monopoly rent, I can spend it as I wish.)

Change the context and think about how you would react to this

if the deal was presented to you personally. You hired an artist

to paint a portrait. You offered $500. He agreed. You had a

deal. He painted the painting. You liked it. You gave him the

money. A few years later he returned. "You owe me another $450,"

he said.

You both looked at the contract. "But you agreed to paint it for

$500 and I paid you that amount." He admitted this was true, but

pointed out that painters in other countries sometimes received

higher amounts, as did sculptors in our own country. In fact, he

told you, all painters in our country planned to demand another

$450 for each picture they had already painted as well as for

future pictures. This would "harmonize" our prices with other

countries, put painting on the same footing as sculpture, and

enable painters to hire more apprentices. His other argument was

that painters often lost money. Only changing the terms of their

deals long after they were struck could keep them in business.

Paying the money was your duty. If you did not pay, it meant

that you did not respect art and private property.

You would find these arguments absurd. Yet they are the same

ones the record industry used, relying heavily on the confusions

against which this book has warned. Is the record companies'

idea as outrageous as the demands of my imaginary painter? It is

actually worse.

The majority of sound recordings made more than forty years ago

are commercially unavailable. After fifty years, only a tiny

percentage are still being sold. It is extremely hard to find

the copyright holders of the remainder. They might have died,

gone out of business, or simply stopped caring. Even if the

composer can be found, or paid through a collection society,

without the consent of the holder of the copyright over the

musical recording, the work must stay in the library. These are

"orphan works"--a category that probably comprises the majority

of twentieth-century cultural artifacts.

Yet as I pointed out earlier, without the copyright holder's

permission, it is illegal to copy or redistribute or perform

these works, even if it is done on a nonprofit basis. The goal

of copyright is to encourage the production of, and public

access to, cultural works. It has done its job in encouraging

production. Now it operates as a fence to discourage access. As

the years go by, we continue to lock up 100 percent of our

recorded culture from a particular year in order to benefit an

ever-dwindling percentage--the lottery winners--in a grotesquely

inefficient cultural policy.

Finally, fifty years after they were made, sound recordings

enter the public domain in the United Kingdom (though as I

pointed out earlier, licensing fees would still be due to the

composer if the work itself was still under copyright). Now

anyone--individual, company, specialist in public domain

material--could offer the work to the public. But not if the

record companies can persuade the government otherwise. Like my

imaginary painter, they want to change the terms of the deal

retrospectively. But at least the painter's proposal would not

make the vast majority of paintings unavailable just to benefit

a tiny minority of current artists.

The recording industry's proposal for retrospective extension

was effectively a tax on the British music-buying public to

benefit the copyright holders of a tiny proportion of sound

recordings. The public loses three times. It loses first when it

is forced to continue to pay monopoly prices for older,

commercially available music, rather than getting the benefit of

the bargain British legislators originally offered: fifty years

of exclusivity, then the public domain. The public loses a

second time when, as a side effect, it is denied access to

commercially unavailable music; no library or niche publisher

can make the forgotten recordings available again. Finally, the

public loses a third time because allowing retrospective

extensions will distort the political process in the future,

leading to an almost inevitable legislative capture by the tiny

minority who find that their work still has commercial value at

the end of the copyright term they were originally granted. As

Larry Lessig has pointed out repeatedly, the time to have the

debate about the length of the copyright term is before we know

whose works will survive commercially.

The whole idea is very silly. But if this is the silly idea we

wish to pursue, then simply increase the income tax

proportionately and distribute the benefits to those record

companies and musicians whose music is still commercially

available after fifty years. Require them to put the money into

developing new artists--something the current proposal does not

do. Let all the other recordings pass into the public domain.

Of course, no government would consider such an idea for a

moment. Tax the public to give a monopoly windfall to those who

already hit the jackpot, because they claim their industry

cannot survive without retrospectively changing the terms of its

deals? It is indeed laughable. Yet it is a far better proposal

than the one that was presented to the Gowers Review.

What happened next was instructive. The Review commissioned an

economic study of the effects of copyright term extension--both

prospective and retrospective--on recorded music from the

University of Cambridge's Centre for Intellectual Property and

Information Law. The resulting document was a model of its

kind.11

With painstaking care and a real (if sometimes fruitless)

attempt to make economic arguments accessible to ordinary human

beings, the study laid out the costs and benefits of extending

the copyright term over sound recordings. It pointed out that

the time to measure the value of a prospective term extension is

at the moment the copyright is granted. Only then does it

produce its incentive effects. The question one must ask is how

much value today does it give an artist or record company to

have their copyright extended by a year at the end of the

existing period of protection. Then one must look to see whether

the benefits of the added incentive outweigh the social costs it

imposes. To put it another way, if the state were selling today

the rights to have protection from year fifty to year ninety-

five, how much would a rational copyright holder pay,

particularly knowing that there is only a small likelihood the

work will even be commercially available to take advantage of

the extension? Would that amount be greater than the losses

imposed on society by extending the right?

Obviously, the value of the extension is affected by our

"discount rate"--the annual amount by which we must discount a

pound sterling in royalties I will not receive for fifty-one

years in order to find its value now. Unsurprisingly, one finds

that the value of that pound in the future is tiny at the moment

when it matters--today--in the calculation of an artist or

distributor making the decision whether to create. Conservative

estimates yield a present value between 3 percent and 9 percent

of the eventual amount. By that analysis, a pound in fifty years

is worth between three and nine pence to you today, while other

estimates have the value falling below one penny. This seems

unlikely to spur much creativity at the margin. Or to put it in

the more elegant language of Macaulay, quoted in Chapter 2:

I will take an example. Dr. Johnson died fifty-six years

ago. If the law were what my honourable and learned friend

wishes to make it, somebody would now have the monopoly of Dr.

Johnson's works. Who that somebody would be it is impossible to

say; but we may venture to guess. I guess, then, that it would

have been some bookseller, who was the assign of another

bookseller, who was the grandson of a third bookseller, who had

bought the copyright from Black Frank, the Doctor's servant and

residuary legatee, in 1785 or 1786. Now, would the knowledge

that this copyright would exist in 1841 have been a source of

gratification to Johnson? Would it have stimulated his

exertions? Would it have once drawn him out of his bed before

noon? Would it have once cheered him under a fit of the spleen?

Would it have induced him to give us one more allegory, one more

life of a poet, one more imitation of Juvenal? I firmly believe

not. I firmly believe that a hundred years ago, when he was

writing our debates for the Gentleman's Magazine, he would very

much rather have had twopence to buy a plate of shin of beef at

a cook's shop underground.12

The art form is different, but the thought of a 1960s Cliff

Richard or Ian Anderson being "cheered under a fit of the

spleen" by the prospect of a copyright extension fifty years

hence is truly a lovely one.

Considering all these factors, as well as the effects on

investment in British versus American music and on the balance

of trade, the Cambridge study found that the extension would

cost consumers between 240 and 480 million pounds, far more than

the benefits to performers and recording studios. (In practice,

the report suggested, without changes in the law, most of the

benefits would not have gone to the original recording artist in

any case.) It found prospective extension led to a clear social

welfare loss. What of retrospective extension?

The report considered, and found wanting, arguments that

retrospective extension is necessary to encourage "media

migration"--the digitization of existing works, for example. In

fact, most studies have found precisely the reverse--that public

domain works are more available and more frequently adapted into

different media. (Look on Amazon.com for a classic work that is

out of copyright--Moby-Dick, for example--and see how many

adaptations and formats are available.) It also rejected the

argument that harmonization alone was enough to justify

extension--retrospective or prospective--pointing out the

considerable actual variation in both term and scope of rights

afforded to performers in different countries. Finally, it

warned of the "hidden 'ratcheting' effect of harmonisation which

results from the fact that harmonisation is almost invariably

upwards." Its conclusion was simple:

[R]etrospective term extensions reduce social welfare. Thus,

in this case, it would seem that basic theory alone is

sufficient to provide strong, and unambiguous, guidance for

policy-makers. . . . We therefore see no reason to quarrel with

the consensus of the profession on this issue which as summed up

by Akerlof et al. . . . [states] categorically that . . .

"[retrospective] extension provides essentially no incentive to

create new works. Once a work is created, additional

compensation to the producer is simply a windfall."13

The Gowers Review agreed. Its fourth recommendation read simply,

"Policy makers should adopt the principle that the term and

scope of protection for IP rights should not be altered

retrospectively." Perhaps more important, though, was the simple

paragraph at the front of the document captioned "The Approach

of the Review." It begins thus: "The Review takes an evidence-

based approach to its policy analysis and has supplemented

internal analysis by commissioning external experts to examine

the economic impact of changes. . . ."

Why specify that one was taking an "evidence-based" approach? At

first, the comment seems unnecessary. What other approach would

one take? Anecdotal? Astrological? But there is a framework in

which empirical evidence of the effects of policy simply seems

irrelevant--one based on natural right. When the Review was given

to the House of Commons Select Committee on Culture, Media and

Sport, that frame of mind was much in evidence:

The Gowers Review undertook an extensive analysis of the

argument for extending the term. On economic grounds, the Review

concluded that there was little evidence that extension would

benefit performers, increase the number of works created or made

available, or provide incentives for creativity; and it noted a

potentially negative effect on the balance of trade. . . .

Gowers's analysis was thorough and in economic terms may be

correct. It gives the impression, however, of having been

conducted entirely on economic grounds. We strongly believe that

retain ownership and control of their own intellectual property.

We have not heard a convincing reason why a composer and his or

her heirs should benefit from a term of copyright which extends

for lifetime and beyond, but a performer should not. . . . Given

the strength and importance of the creative industries in the

U.K., it seems extraordinary that the protection of intellectual

property rights should be weaker here than in many other

countries whose creative industries are less successful.14

A couple of things are worth noting here. The first is that the

Committee is quite prepared to believe that the effects of term

extension would not benefit performers or provide incentives for

creativity, and even to believe that it would hurt the balance

of trade. The second is the curious argument in the last

sentence. Other countries have stronger systems of rights and

are less successful. We should change our regime to be more like

them! Obviously the idea that a country's creative industries

might be less successful because their systems of rights were

stronger does not occur to the Committee for a moment. Though it

proclaims itself to be unaffected by economic thought, it is in

fact deeply influenced by the "more rights equals more

innovation" ideology of maximalism that I have described in

these pages.

Nestling between these two apparently contradictory ideas is a

serious argument that needs to be confronted. Should we ignore

evidence--even conclusive evidence--of negative economic effects,

harm to consumers, and consequences for the availability of

culture because we are dealing with an issue of moral right,

almost natural right? Must we extend the rights of the artists

who recorded those songs (or rather the record companies who

immediately acquired their copyrights) because they are simply

theirs as a matter of natural justice? Do performers have a

natural right to recorded songs either because they have labored

on them, mixing their sweat with each track, or because

something of their personality is forever stamped into the song?

Must we grant an additional forty-five years of commercial

exclusivity, not because of economic incentive, but because of

natural right?

Most of us feel the pull of this argument. I certainly do. But

as I pointed out in Chapter 2, there are considerable problems

with such an idea. First, it runs against the premises of actual

Constitution resolutely presents the opposite picture. Exclusive

rights are to encourage progress in science and the useful arts.

The Supreme Court has elaborated on this point many times,

rejecting both labor-based "sweat of the brow" theories of

the products of one's genius--whether inventions or novels.

Britain, too, has a history of looking to copyright as a

utilitarian scheme--though with more reference to, and legal

protection of, particular "moral rights" than one finds in the

United States. But even in the most expansive "moral rights"

legal systems, even in the early days of debate about the rights

of authors after the French Revolution, it is accepted that

there are temporal limits on these rights. If this is true of

authors, it is even more true of performers, who are not granted

the full suite of author's rights in moral rights jurisdictions,

being exiled to a form of protection called "neighboring"

rights.

In all of these schemes, there are time limits on the length of

the rights (and frequently different ones for different

creators--authors, inventors, performers, and so on). Once one

has accepted that point, the question of how long they should be

is, surely, a matter for empirical and utilitarian analysis. One

cannot credibly say that natural rights or the deep

deontological structure of the universe gives me a right to

twenty-eight or fifty-six or seventy years of exclusivity. The

argument must turn instead to a question of consequences. Which

limit is better? Once one asks that question, the Gowers

Review's economic assessment is overwhelming, as the Select

Committee itself recognized. In the end, the government

agreed--noting that a European Union study had found precisely

the same thing. The sound recording right should not be

extended, still less extended retrospectively. The evidence-free

zone had been penetrated. But not for long. As this book went to

press, the European Commission announced its support for an even

longer Europe-wide extension of the sound recording right. The

contrary arguments and empirical evidence were ignored,

minimized, explained away. How can this pattern be broken?

In the next and final chapter, I try to answer that question. I

offer a partial explanation for the cognitive and organizational

blindnesses that have brought us to this point. I argue that we

have much to learn from the history, theory, and organizational

practices of the environmental movement. The environmental

movement taught us to see "the environment" for the first time,

to recognize its importance, and to change the way we thought

about ecology, property, and economics in consequence. What we

need is an environmentalism of mind, of culture, of information.

In the words of my colleague David Lange, we need to "recognize

the public domain." And to save it.

Chapter 10: An Environmentalism for Information

Over the last fifteen years, a group of scholars have finally

persuaded economists to believe something noneconomists find

obvious: "behavioral economics" shows that people do not act as

economic theory predicts. But hold your cheers. This is not a

vindication of folk wisdom over the pointy-heads. The deviations

from "rational behavior" are not the wonderful cornucopia of

human motivations you might imagine. There are patterns. For

example, we are systematically likely to overestimate chances of

loss and underestimate chances of gain, to rely on simplifying

heuristics to frame problems even when those heuristics are

contradicted by the facts.

Some of the patterns are endearing; the supposedly "irrational"

concerns for distributive equality that persist in all but the

economically trained and the extreme right, for example. But

most of them simply involve the mapping of cognitive bias. We

can take advantage of those biases, as those who sell us

ludicrously expensive and irrational warranties on consumer

goods do. Or we can correct for them, like a pilot who is

trained to rely on his instruments rather than his faulty

perceptions when flying in heavy cloud.

This book has introduced you to the wonders and terrors of

intellectual property law--the range wars of the Internet age.

There have been discussions of synthetic biology and musical

sampling, digital locks and the hackers who break them,

Jefferson and Macaulay, and the fight over video recorders. Now

it is time to sum up.

I would argue that the chapters in this book present evidence of

another kind of cognitive bias, one that the behavioral

economists have not yet identified. Call it the openness

aversion. Cultural agoraphobia. We are systematically likely to

undervalue the importance, viability, and productive power of

open systems, open networks, and nonproprietary production.

CULTURAL AGORAPHOBIA?

Test yourself on the following questions. In each case, it is

1991 and I have removed from you all knowledge of the years

since then. (For some, this might be a relief.)

The first question is a thought experiment I introduced in

Chapter 4. You have to design an international computer network.

One group of scientists describes a system that is fundamentally

open: open protocols and open systems so that anyone could

connect to the system and offer information or products to the

world. Another group--scholars, businesspeople,

bureaucrats--points out the problems. Anyone could connect to the

system! They could do anything! The system itself would not

limit them to a few approved actions or approved connections.

There would be porn, and piracy, and viruses, and spam.

Terrorists could put up videos glorifying themselves. Your

neighbor's site could compete with the New York Times or the

U.S. government in documenting the war in Iraq. Better to have a

well-managed system in which official approval is required to

put up a site, where only a few selected actions are permitted

by the network protocols, where most of us are merely recipients

of information, where spam, viruses, and piracy (and innovation

and participatory culture and anonymous speech) are impossible.

Which network design would you have picked? Remember, you have

no experience of blogs, or mashups, or Google; no experience of

the Web. Just you and your cognitive filters.

Imagine a form of software which anyone could copy and change,

created under a license which required subsequent programmers to

offer their software on the same terms. Imagine legions of

programmers worldwide contributing their creations back into a

"commons." Is this anarchic-sounding method of production

economically viable? Could it successfully compete with the

hierarchically organized corporations producing proprietary,

closed code, controlled by both law and technology? Be truthful.

Finally, set yourself the task of producing the greatest

reference work the world has ever seen. You are told that it

must cover everything from the best Thai food in Durham to the

annual rice production of Thailand, from the best places to see

blue whales to the history of the Blue Dog Coalition. Would you

create a massive organization of paid experts, each assigned a

topic, with hierarchical layers of editors above them, producing

a set of encyclopedic tomes that are rigorously controlled by

governments, scientists, and volunteer encyclopedists to

produce, and search engines to organize and rank, a cornucopia

of information? I know which way I would have bet in 1991. But I

also know that the last time I consulted an encyclopedia was in

1998. You?

It is not that openness is always right. It is not. Often we

need strong intellectual property rights, privacy controls, and

networks that demand authentication. Rather, it is that we need

a balance between open and closed, owned and free, and we are

systematically likely to get the balance wrong. (How did you do

on the test?) Partly this is because we still don't understand

the kind of property that lives on networks; most of our

experience is with tangible property. Sandwiches that one

hundred people cannot share. Fields that can be overgrazed if

outsiders cannot be excluded. For that kind of property, control

makes more sense. Like astronauts brought up in gravity, our

reflexes are poorly suited for free fall. Jefferson's words were

true even of grain elevators and hopper-boys. But in our world,

the proportion of intangible to tangible property is much, much

higher. The tendency to conflate intellectual and real property

is even more dangerous in a networked world. We need his words

more than he did.

Each of the questions I asked is related to the World Wide Web.

Not the Internet, the collective name for the whole phenomenon,

including the underlying methods of sending and receiving

packets. Some version of the underlying network has been around

for much longer, in one form or another. But it only attracted

popular attention, only revolutionized the world, when on top of

it was built the World Wide Web--the network of protocols and

pages and hyperlinks that is so much a part of our lives and

which arose only from Tim Berners-Lee's work at CERN in 1991.

My daughter will graduate from college in the year 2011. (At

least, we both hope so.) She is older than the Web. It will not

even have had its twentieth birthday on her graduation day. By

Christmas of 2012, it will be able to drink legally in the

United States. I wrote those sentences, but I find it hard to

believe them myself. A life without the Web is easy to remember

and yet hard to recapture fully. It seems like such a natural

part of our world, too fixed to have been such a recent arrival,

as if someone suggested that all the roads and buildings around

you had arrived in the last fifteen years.

Some of you may find these words inexplicable because you live

in a happy, Thoreau-like bliss, free of any contact with

computer networks. If so, I take my hat off to you. The world of

open sky and virtuous sweat, of books and sport and laughter, is

no less dear to me than to you. Having an avatar in a virtual

world holds the same interest as elective dental surgery. I care

about the Web not because I want to live my life there, but

because of what it has allowed us to achieve, what it represents

for the potential of open science and culture. That, I think, is

something that Thoreau (and even Emerson for that matter) might

have cared about deeply. Yet, as I suggested earlier in this

book, I seriously doubt that we would create the Web today--at

least if policy makers and market incumbents understood what the

technology might become early enough to stop it.

I am not postulating some sinister "Breakages, Limited" that

stifles technological innovation. I am merely pointing out the

imbalance between our intuitive perceptions of the virtues and

dangers of open and closed systems, an imbalance I share, quite

frankly.

In place of what we have today, I think we would try, indeed we

are trying, to reinvent a tamer, more controlled Web and to

change the nature of the underlying network on which it

operates. (This is a fear I share with those who have written

about it more eloquently than I, particularly Larry Lessig and

Yochai Benkler.) We would restrict openness of access, decrease

anonymity, and limit the number of actions that a network

participant could perform. The benefits would be undeniable. It

would cut down on spam, viruses, and illicit peer-to-peer file

sharing. At the same time, it would undercut the iconoclastic

technological, cultural, and political potential that the Web

offers, the ability of a new technology, a new service to build

on open networks and open protocols, without needing approval

from regulators or entrenched market players, or even the owners

of the Web pages to which you link.

Imagine, by contrast, an Internet and a World Wide Web that

looked like America Online, circa 1996, or Compuserve, or the

French state network Minitel. True, your exposure to penis-

enhancement techniques, misspelled stock tips, and the penniless

sons of Nigerian oil ministers would be reduced. That sounds

pretty attractive. But the idea that the AOL search engine would

be replaced by Yahoo and then Google, let alone Google Maps?

That new forms of instant messaging would displace Compuserve's

e-mail? That the Chinese dissident would have access to

anonymized Internet services, that you might make phone calls

worldwide for free from your computer, or that a blog like

BoingBoing would end up having more page views than many major

newspapers? Forget it. Goodbye to the radical idea that anyone

can link to any page on the network without permission. A

revised network could have the opposite rule and even impose it

by default.

A tamer network could keep much tighter control over content,

particularly copyrighted content. You might still get the video

of the gentlemen doing strange things with Mentos and soda

bottles, though not its viral method of distribution. But forget

about "George Bush Doesn't Care About Black People" and all your

favorite mashups. Its controlled network of links and its

limited access would never unleash the collective fact-gathering

genius the Web has shown. For a fee, you would have Microsoft

Encarta and the Encyclopedia Britannica online. What about the

"right-click universe" of knowledge about the world gathered by

strangers, shared on comparatively open sites worldwide, and

ordered by search engines? What about Wikipedia? I think not.

The counterfactual I offer is not merely a counterfactual. Yes,

we got the Web. It spread too fast to think of taming it into

the more mature, sedate "National Information Infrastructure"

that the Clinton administration imagined. But as Larry Lessig

pointed out years ago, the nature of a network can always be

changed. The war over the control and design of the network, and

the networked computer, is never-ending. As I write these words,

the battles are over "trusted computing" and "Net neutrality."

Trusted computing is a feature built into the operating system

which makes it impossible to run processes that have not been

approved by some outside body and digitally identified. It would

indeed help to safeguard your computer from viruses and other

threats and make it harder to copy material the content owners

did not want you to copy (perhaps even if you had a right to).

In the process it would help to lock in the power of those who

had a dominant position in operating systems and popular

programs. (Microsoft is a big supporter.) It would make open

source software, which allows users to modify programs,

inherently suspect. It would, in fact, as Jonathan Zittrain

points out, change the nature of the general-purpose computer,

which you can program to do anything, back toward the terminal

which tells you what functions are allowed.1 Think of a DVD

player.

The attack on Net neutrality, by contrast, is an attempt by the

companies who own the networks to be allowed to discriminate

between favored and disfavored content, giving the former

preferential access. (One wit analogized it to letting the phone

company say, "we will delay your call to Pizza Hut for sixty

seconds, but if you want to be put through to our featured pizza

provider immediately, hit nine now!") Taken together, these

proposals would put the control of the computer back in the

hands of the owners of the content and the operating system, and

control of the network users' choices in the hands of the person

who sells them their bandwidth. At the same time, our

intellectual property agenda is filled with proposals to create

new intellectual property rights or extend old ones. That is the

openness aversion in action.

Now, perhaps to you, the closed alternatives still sound better.

Perhaps you do not care as much about the kind of technological

dynamism, or anonymous speech, or cultural ferment that thrills

the digerati. Perhaps you care more about the risks posed by the

underlying freedom. That is a perfectly reasonable point of

view. After all, openness does present real dangers; the same

freedom given to the innovator, the artist, and the dissident is

given to the predator and the criminal. At each moment in

history when we have opened a communications network, or the

franchise, or literacy, reasonable people have worried about the

consequences that might ensue. Would expanded literacy lead to a

general coarsening of the literary imagination? (Sometimes,

perhaps. But it would and did lead to much more besides, to

literature and culture of which we could not have dreamed.)

Would an expanded franchise put the control of the state into

the hands of the uneducated? (Yes, unless we had free national

educational systems. "Now we must educate our masters" was the

slogan of the educational reformers after the enlargement of the

franchise in Britain in the nineteenth century. Openness

sometimes begets openness.) Would translating the Bible from

Latin into the vernacular open the door to unorthodox and

heretical interpretations, to a congregation straying because

they did not need to depend on a priestly intermediary with

privileged access to the text? (Oh, yes indeed.) Would TV and

radio play into the hands of demagogues? (Yes, and help expose

their misdeeds.)

Openness is not always right. Far from it. But our prior

experience seems to be that we are systematically better at

seeing its dangers than its benefits. This book has been an

attempt, in the sphere of intellectual property, to help us

counteract that bias. Like the pilot in the cloud looking at his

instruments, we might learn that we are upside down. But what do

we do about it?

LEARNING FROM ENVIRONMENTALISM

I have argued that our policies are distorted not merely by

industry capture or the power of incumbent firms, but by a

series of cultural and economic biases or presuppositions: the

equation of intellectual property to physical property; the

assumption that whenever value is created, an intellectual

property right should follow; the romantic idea of creativity

that needs no raw material from which to build; the habit of

considering the threats, but not the benefits, of new

technologies; the notion that more rights will automatically

bring more innovation; the failure to realize that the public

domain is a vital contributor to innovation and culture; and a

tendency to see the dangers of openness, but not its potential

benefits.2

One of the most stunning pieces of evidence to our aversion to

openness is that, for the last fifty years, whenever there has

been a change in the law, it has almost always been to expand

intellectual property rights. (Remember, this implies that every

significant change in technology, society, or economy required

more rights, never less, nor even the same amount.) We have done

all this almost entirely in the absence of empirical evidence,

and without empirical reconsideration to see if our policies

were working. As I pointed out in the last chapter, intellectual

property policy is an "evidence-free zone." It runs on faith

alone and its faith consists of the cluster of ideas I have

outlined in this book. Whether we call this cluster of ideas

maximalism, cultural agoraphobia, or the openness aversion, it

exercises a profound influence on our intellectual property and

communications policy.

These ideas are not free-floating. They exist within, are

influenced by, and in turn influence, a political economy. The

political economy matters and it will shape any viable response.

Even if the costs of getting the policies wrong are huge and

unnecessary--think of the costs of the copyright extensions that

lock up most of twentieth-century culture in order to protect

the tiny fraction of it that is still commercially

available--they are spread out over the entire population, while

the benefits accrue to a small group of commercial entities that

deeply and sincerely believe in the maximalist creed. This

pattern of diffuse but large losses and concentrated gains is,

as Mancur Olson taught us, a recipe for political malfunction.3

Yet the problem is even deeper than that--in four ways.

First, though intellectual property rules will profoundly shape

science, culture, and the market in the information age, they

just seem obscure, wonkish, hard to get excited about.

Certainly, people can get upset about individual

examples--overbroad patents on human genes, copyright lawsuits

against whistleblowers who leak e-mails showing corporate

misdeeds that threaten the integrity of electronic voting, rules

that paralyze documentary filmmakers, or require payment for

sampling three notes from a prior song, extensions of rights

that allow patents on auctions or business methods, make genres

such as jazz seem legally problematic, create new rights over

facts, or snarl up foundational technologies. But they see each

of these as an isolated malfunction, not part of a larger social

problem or set of attitudes.

Second, what holds true for issues, also holds true for

communities. What links the person writing open source software,

and trying to negotiate a sea of software patents in the

process, to the film archivist trying to stir up interest in all

the wonderful "orphan films"--still under copyright but with no

dust? When a university collaborates with Google to digitize

books in their collection for the purposes of search and

retrieval, even if only a tiny portion of the text will be

visible for any work still under copyright, does it sense any

common interest with the synthetic biologist trying to create

the BioBricks Foundation, to keep open the foundational elements

of a new scientific field? Both may be sued for their

efforts--one connection at least.

When a developing nation tries to make use of the explicit

"flexibilities" built into international trade agreements so as

to make available a life-saving drug to its population through a

process of compulsory licensing and compensation, it will find

itself pilloried as a lawbreaker--though it is not--or punished

through bilateral agreements. Will that process form any common

interest with the high-technology industries in the United

States who chafe at the way that current intellectual property

rules enshrine older technologies and business methods and give

them the protection of law? There are some links between those

two situations. Will the parties see those links, or will the

developing world's negotiators think that the current

intellectual property rules express some monolithic "Western"

set of interests? Will the high-tech companies think this is

just an issue of dumb lawyers failing to understand technology?

Each gap in understanding of common interest is a strike against

an effective response.

Third, an effective political response would actually be easier

if our current rules came merely from the relentless pursuit of

corporate self-interest. (Here I part company with those who

believe that self-interest is simply "there"--not shaped by

socially constructed ideas, attitudes, ideologies, or biases.)

In fact, the openness aversion sometimes obscures self-interest

as well as the public interest. Think of the relentless

insistence of the movie companies on making video recorders

illegal. Nor does the framework of maximalism help if our goal

is to have all the interested economic actors in the room when

policy is made. For example, by framing issues of communications

policy or Internet regulation as questions of intellectual

property, we automatically privilege one set of interested

parties--content owners--over others who also have a large

economic stake in the matter.

Fourth, and finally, the biggest problem is that even if one

could overcome the problems of political interest, or

ideological closed-mindedness, the answers to many of these

questions require balance, thought, and empirical evidence--all

qualities markedly missing in the debate. If the answer were

that intellectual property rights are bad, then forming good

policy would be easy. But that is as silly and one-sided an idea

as the maximalist one I have been criticizing here. Here are

three examples:

1. Drug patents do help produce drugs. Jettisoning them is a bad

idea--though experimenting with additional and alternative

methods of encouraging medical innovation is a very good one.

2. I believe copyrights over literary works should be shorter,

and that one should have to renew them after twenty-eight

years--something that about 85 percent of authors and publishers

will not do, if prior history is anything to go by. I think that

would give ample incentives to write and distribute books, and

give us a richer, more accessible culture and educational system

to boot, a Library of Congress where you truly can "click to get

the book" as my son asked me to do years ago now. But that does

not mean that I wish to abolish copyright. On the contrary, I

think it is an excellent system.

3. All the empirical evidence shows that protecting compilations

of facts, as the European Database Directive does, has been a

profound failure as a policy, imposing costs on consumers

without encouraging new database production. But if the evidence

said the opposite, I would support a new database right.

We need a political debate about intellectual property that

recognizes these trade-offs; that does not impose simplistic,

one-sided solutions; that looks to evidence. We need to

understand the delicate and subtle balance between property and

the opposite of property, the role of rights, but also of the

public domain and the commons. Building a theory, let alone a

movement, around such an issue is hard. Doing so when we lack

some of the basic theoretical tools and vocabularies is

daunting. We do not even have a robust conception of the public

domain. If they think of it as a legal issue at all, people

simply think of it as whatever is left over after an endless

series of rights have been carved out. Can one build a politics

to protect a residue?

So we have at least four problems: an issue that is perceived as

obscure, affecting scattered groups with little knowledge of

each other's interest, dominated by an ideology that is

genuinely believed by its adherents, in the place of which we

have to make careful, balanced, empirically grounded

suggestions. Assume for a moment the need for a politics of

intellectual property that seeks a solution to these four

problems. What might such a politics look like?

I have argued that in a number of respects, the politics of

intellectual property and the public domain is at the stage that

the American environmental movement was at in the 1950s. In

1950, there were people who cared strongly about issues we would

now identify as "environmental"--supporters of the park system

and birdwatchers, but also hunters and those who disdained

chemical pesticides in growing their foods. In the world of

intellectual property, we have start-up software engineers,

libraries, appropriationist artists, parodists, biographers, and

biotech researchers. In the 50s and 60s, we had flurries of

outrage over particular crises--burning rivers, oil spills,

dreadful smog. In the world of intellectual property, we have

the kind of stories I have tried to tell here. Lacking, however,

is a general framework, a perception of common interest in

apparently disparate situations.

Crudely speaking, the environmental movement was deeply

influenced by two basic analytical frameworks. The first was the

idea of ecology: the fragile, complex, and unpredictable

interconnections between living systems. The second was the idea

of welfare economics--the ways in which markets can fail to make

activities internalize their full costs.4 The combination of the

two ideas yielded a powerful and disturbing conclusion. Markets

would routinely fail to make activities internalize their own

costs, particularly their own environmental costs. This failure

would, routinely, disrupt or destroy fragile ecological systems,

with unpredictable, ugly, dangerous, and possibly irreparable

consequences. These two types of analysis pointed to a general

interest in environmental protection and thus helped to build a

large constituency which supported governmental efforts to that

end. The duck hunter's preservation of wetlands as a species

habitat turns out to have wider functions in the prevention of

erosion and the maintenance of water quality. The decision to

burn coal rather than natural gas for power generation may have

impacts on everything from forests to fisheries. The attempt to

reduce greenhouse gases and mitigate the damage from global

warming cuts across every aspect of the economy.

Of course, it would be silly to think that environmental policy

was fueled only by ideas rather than more immediate desires. As

William Ruckelshaus put it, "With air pollution there was, for

example, a desire of the people living in Denver to see the

mountains again. Similarly, the people living in Los Angeles had

a desire to see one another." Funnily enough, as with

intellectual property, changes in communications technology also

played a role. "In our living rooms in the middle sixties, black

and white television went out and color television came in. We

have only begun to understand some of the impacts of television

on our lives, but certainly for the environmental movement it

was a bonanza. A yellow outfall flowing into a blue river does

not have anywhere near the impact on black and white television

that it has on color television; neither does brown smog against

a blue sky."5 More importantly perhaps, the technologically

fueled deluge of information, whether from weather satellites or

computer models running on supercomputers, provided some of the

evidence that--eventually--started to build a consensus around the

seriousness of global warming.

Despite the importance of these other factors, the ideas I

mentioned--ecology and welfare economics--were extremely important

for the environmental movement. They helped to provide its

agenda, its rhetoric, and the perception of common interest

underneath its coalition politics. Even more interestingly, for

my purposes, those ideas--which began as inaccessible scientific

or economic concepts, far from popular discourse--were brought

into the mainstream of American politics. This did not happen

easily or automatically. Popularizing complicated ideas is hard

work. There were popular books, television discussions,

documentaries on Love Canal or the California kelp beds, op-ed

pieces in newspapers, and pontificating experts on TV.

Environmental groups both shocking and staid played their part,

through the dramatic theater of a Greenpeace protest or the

tweedy respectability of the Audubon Society. Where once the

idea of "the Environment" (as opposed to "my lake," say) was

seen as a mere abstraction, something that couldn't stand

against the concrete benefits brought by a particular piece of

development, it came to be an abstraction with both the force of

law and of popular interest behind it.

To me, this suggests a strategy for the future of the politics

of intellectual property, a way to save our eroding public

domain. In both areas, we seem to have the same recipe for

failure in the structure of the decision-making process.

Democratic decisions are made badly when they are primarily made

by and for the benefit of a few stakeholders, whether

industrialists or content providers. This effect is only

intensified when the transaction costs of identifying and

resisting the change are high. Think of the costs and benefits

of acid rain-producing power generation or--less serious, but

surely similar in form--the costs and benefits of retrospectively

increasing copyright term limits on works for which the

public domain. There are obvious benefits to the heirs and

assigns of authors whose copyright has expired in having

Congress put the fence back up around this portion of the

intellectual commons. There are clearly some costs--for example,

to education and public debate--in not having multiple, competing

low-cost editions of these works. But these costs are

individually small and have few obvious stakeholders to

represent them.

Yet, as I have tried to argue here, beyond the failures in the

decision-making process, lie failures in the way we think about

the issues. The environmental movement gained much of its

persuasive power by pointing out that for structural reasons we

were likely to make bad environmental decisions: a legal system

based on a particular notion of what "private property" entailed

and an engineering or scientific system that treated the world

as a simple, linearly related set of causes and effects. In both

of these conceptual systems, the environment actually

disappeared; there was no place for it in the analysis. Small

surprise, then, that we did not preserve it very well. I have

argued that the same is true about the public domain. The

confusions against which the Jefferson Warning cautions, the

source-blindness of a model of property rights centered on an

"original author," and the political blindness to the importance

of the public domain as a whole (not "my lake," but "the

Environment"), all come together to make the public domain

disappear, first in concept and then, increasingly, as a

reality. To end this process we need a cultural

environmentalism, an environmentalism of the mind, and over the

last ten years we have actually begun to build one.

Cultural environmentalism is an idea, an intellectual and

practical movement, that is intended to be a solution to a set

of political and theoretical problems--an imbalance in the way we

make intellectual property policy, a legal regime that has

adapted poorly to the transformation that technology has

produced in the scope of law, and, perhaps most importantly, a

set of mental models, economic nostrums, and property theories

that each have a public domain-shaped hole at their center.

The comparison I drew between the history of environmentalism

and the state of intellectual property policy had a number of

facets. The environmental movement had "invented" the concept of

the environment and used it to tie together a set of phenomena

that would otherwise seem very separate. In doing so, it changed

perceptions of self-interest and helped to form coalitions where

none had existed before--just as earth science built upon

research into the fragile interconnections of ecology and on the

Pigouvian analysis of economic externalities. I argue that we

need to make visible the invisible contributions of the public

domain, the "ecosystem services" performed by the

underappreciated but nevertheless vital reservoir of freedom in

culture and science.6 And, just as with environmentalism, we

need not only a semantic reorganization, or a set of conceptual

and analytic tools, but a movement of people devoted to bringing

a goal to the attention of their fellow citizens.

I have tried hard to show that there is something larger going

on under the realpolitik of land grabs by Disney and campaign

contributions by the Recording Industry Association of America.

But it would be an equal and opposite mistake to think that this

is just about a dysfunctional discourse of intellectual

property. In this part of the analysis, too, the environmental

movement offers some useful practical reminders. The ideas of

ecology and environmental welfare economics were important, but

one cannot merely write A Sand County Almanac and hope the world

will change. Environmentalists piggybacked on existing sources

of conservationist sentiment--love of nature, the national parks

movement, hikers, campers, birdwatchers. They built coalitions

between those who might be affected by environmental changes.

They even stretched their political base by discovering, albeit

too slowly, the realities of environmental racism, on the one

hand, and the benefits of market solutions to some environmental

problems on the other. Some of these aspects, at least, could be

replicated in the politics of intellectual property.

Ten years ago, when I first offered the environmental analogy, I

claimed that intellectual property policy was seen as a contract

struck between industry groups--something technical, esoteric,

and largely irrelevant to individual citizens, except in that

they were purchasers of the products that flowed out of the

system. Whether or not that view has ever been tenable, it is

not so in a digital age. Instead, I offered the basic argument

laid out here--that we needed a "politics of intellectual

property" modeled on the environmental movement to create a

genuine and informed political debate on intellectual property

policy.7

So far, I have concentrated on the theoretical and academic

tools such a debate would need--focusing particularly on property

theory and on economic analysis and its limits. But if there is

to be a genuinely democratic politics of intellectual property,

we would need an institutional diversity in the policymaking

debate that was comparable to that of the environmental

movement.

Environmentalism presents us with a remarkable diversity of

organizational forms and missions. We have Greenpeace, the

Environmental Legal Defense Fund, groups of concerned

scientists, and the Audubon Society, each with its own methods,

groups of supporters, and sets of issues. Yet we also have local

and pragmatic coalitions to save a particular bit of green

space, using the private tools of covenants and contracts.8 I

think we can see the beginnings of the replication of that

institutional diversity in the world of intangible property.

Ten years ago, civil society had little to offer in terms of

groups that represented anything other than an industry position

on intellectual property, still less ones that took seriously

the preservation of the public domain or the idea that

intellectual property policy was a matter of balance, rather

than simple maximization of rights. There were the librarians

and a few academics. That was about it. This position has

changed radically.

There are academic centers that concentrate on the theoretical

issues discussed in this book--one of them at my university.

Thanks in large part to the leadership of Pamela Samuelson,

there are law student clinics that do impact litigation on

issues such as fair use and that represent underserved clients

such as documentarians. But beyond academic work, there are

organizations that have dedicated themselves to advocacy and to

litigation around the themes of preservation of the public

domain, defense of limitations and exceptions in copyright, and

the protection of free speech from the effects of intellectual

property regulation of both content and the communications

infrastructure. The Electronic Frontier Foundation did exist ten

years ago, but its coverage of intellectual property issues was

only episodic. Its portfolio of litigation and public education

on the subject is now nothing short of remarkable. Public

Knowledge's valuable lobbying and education is another obvious

example. International organizations with similar aims include

the Open Rights Group in the United Kingdom.9

Organizing has also taken place around particular cases--such as

Eldred v. Ashcroft, the challenge to the Sonny Bono Copyright

Term Extension Act.10 Activity is not confined to the world of

by exposing and challenging bad patents.11

It would be remiss not to mention the international Access to

Knowledge, or A2K, movement, inspired by the work of Jamie

Love.12 While its focus is on the kinds of issues represented by

the access-to-medicines movement, it has made the idea of

balance in intellectual property and the protection of the

public domain one of its central components. Mr. Love himself is

also the central figure behind the idea of a Research and

Development Treaty which would amend international trade

agreements to make intellectual property merely one of a whole

range of economic methods for stimulating innovation.13

His work has touched almost every single one of the movements

discussed here.

The Access to Knowledge movement has many institutional

variants. The Development Agenda at the World Intellectual

Property Organization (WIPO), put forward by India and Brazil,

includes similar themes, as do the Geneva Declaration and the

Adelphi Charter produced by the United Kingdom's Royal Society

for the Encouragement of Arts, Manufactures and Commerce.14

History is full of wordy charters and declarations, of course.

By themselves they mean little. Yet the level of public and

media attention paid to them indicates that intellectual

property policy is now of interest beyond a narrow group of

affected industries. To underscore this point, several major

foundations have introduced intellectual property initiatives,

something that would have been inconceivable ten years ago.15

Finally, to complete the analogy to the land trust, we have the

organizations I mentioned earlier, such as Creative Commons and

the Free Software Foundation.16 The latter group pioneered

within software the attempt to create a licensed "commons" in

which freedoms are guaranteed. The licensed commons replaces the

law's default rules with choices made by individuals, the

effects of which are magnified by collective action. The end

result is a zone of public freedom enabled by private choice.

If one looks at these institutions and actors and at the range

of issues on which they focus--from software to drug patents,

from reverse engineering to access to archival records--the

obvious question is, how did they overcome the collective action

problem? What ties together a critique of digital locks and the

access-to-medicines movement? Again, I think the answer points

to the usefulness of the environmental analogy. As I pointed

out, the invention of the "environment" trope tied together

groups whose interests, considered at a lower level of

abstraction, seemed entirely different--hunters and birdwatchers,

antipollution protesters and conservation biologists. The idea

of the "environment" literally created the self-interest or set

of preferences that ties the movement together. The same is true

here. Apparently disparate interests are linked by ideas of the

protection of the public domain and of the importance of a

balance between protection and freedom in cultural and

scientific ecology.17

But even a broad range of initiatives and institutions would

not, in and of themselves, produce results. One must convince

people that one's arguments are good, one's institutional

innovations necessary, one's horror stories disturbing.

Environmentalism has managed to win the battle for clarity--to

make its points clearly enough that they ceased to be dismissed

as "arcane" or technical, to overcome neglect by the media, to

articulate a set of concerns that are those of any educated

citizen. The other striking phenomenon of the last ten years is

the migration of intellectual property issues off the law

reviews or business pages and onto the front pages and the

editorial pages. Blogs have been particularly influential.

Widely read sites such as Slashdot and Boing-Boing have multiple

postings on intellectual property issues each day; some are

rants, but others are at a level of sophistication that once

would have been confined to academic discussion.18 Scientists

passionately debate the importance of open access to scholarly

journals. Geographers and climatologists fume over access to

geospatial data. The movement has been pronounced enough to

generate its own reaction. The popular comics site "xkcd" has

strips critical of the Digital Millennium Copyright Act,19

but also a nerdily idyllic picture of a stick figure reclining

under a tree and saying, "Sometimes I just can't get outraged

over copyright law."20 That cartoon now resides on my computer

desktop. (It is under a Creative Commons license, ironically

enough.)

Who can blame the stick figure? Certainly not I. Is it not silly

to equate the protection of the environment with the protection

of the public domain? After all, one is the struggle to save a

planetary ecology and the other is just some silly argument

about legal rules and culture and science. I would be the first

to yield primacy to the environmental challenges we are facing.

Mass extinction events are to be avoided, particularly if they

involve you personally. Yet my willingness to minimize the

importance of the rules that determine who owns science and

culture goes only so far.

A better intellectual property system will not save the planet.

On the other hand, one of the most promising sets of tools for

building biofuels comes from synthetic biology. Ask some of the

leading scientists in that field why they devoted their precious

time to trying to work out a system that would offer the

valuable incentives that patents provide while leaving a commons

of "biobricks" open to all for future development. I worry about

these rules naturally; they were forced to do so. A better

intellectual property system certainly will not end world

hunger. Still it is interesting to read about the lengthy

struggles to clear the multiple, overlapping patents on

GoldenRiceTM--a rice grain genetically engineered to cure vitamin

deficiencies that nearly perished in a thicket of blurrily

overlapping rights.21

A better intellectual property system will not cure AIDS or

rheumatoid arthritis or Huntington's disease or malaria.

Certainly not by itself. Patents have already played a positive

role in contributing to treatments for the first two, though

they are unlikely to help much on the latter two; the affected

populations are too few or too poor. But overly broad, or vague,

or confusing patents could (and I believe have) hurt all of

those efforts--even those being pursued out of altruism. Those

problems could be mitigated. Reforms that made possible legal

and facilitated distribution of patented medicines in Africa

might save millions of lives. They would cost drug companies

little. Africa makes up 1.6 percent of their global market.

Interesting alternative methods have even been suggested for

encouraging investment in treatments for neglected diseases and

diseases of the world's poor. At the moment, we spend 90 percent

of our research dollars on diseases that affect 10 percent of

the global population. Perhaps this is the best we can do, but

would it not be nice to have a vigorous public debate on the

subject? Some possible innovations are much easier. A simple

rule that required the eventual free publication online of all

government-funded health research, under open licenses, rather

than its sequestration behind the paywalls of commercial

journals, could help fuel remarkable innovations in scientific

synthesis and computer-aided research while giving citizens

access to the research for which they have already paid.

Good intellectual property policy will not save our culture. But

bad policy may lock up our cultural heritage unnecessarily,

leave it to molder in libraries, forbid citizens to digitize it,

even though the vast majority of it will never be available

publicly and no copyright owner can be found. Would you not

prefer the world in which your children could look at the

Library of Congress online catalogue and click to get the book

or film or song that otherwise languished as an "orphan work"?

Good intellectual policy will not necessarily give us great new

music. But the policy we have today would make some of the music

we most cherish illegal, or at least legally questionable. Does

that inspire confidence for the future? As for the World Wide

Web, I offer again my thought experiment from the first part of

this chapter. Would we be more likely to invent it or forbid it

today? We are certainly working busily to change the openness of

the general-purpose computer, the neutrality of the network, and

the degree of control that content companies can exert over

hardware.

I do not claim that the issues I have written about here are the

most important problem the world faces. That would be

ridiculous. But I do claim that they are facets of a very

important problem and one to which we are paying far too little

attention.

I would also be the first to admit that these issues are

complicated. Even if we heeded the precepts I have outlined in

this book, even if we actually started to look at intellectual

property as an empirical question, even if we turned to data

rather than faith for our assessments, reasonable people would

disagree about much. Some of the most ludicrous recent

excesses--huge retrospective copyright term extensions, database

rights, proposed webcasting treaties, business method patents--do

not pass the laugh test, in my view and that of most scholars.

Stopping and then reversing that tide would be valuable, even

transformative, but other issues are a closer call.

It is also true that we do not have all the tools we need. A lot

remains to be done, both academically and practically. We need

better evidence. We need property theories that give us as rich

a conception of property's outside--of the public domain and the

commons--as we have of property itself. We need to rethink some

of our policies of international harmonization and reconsider

what types of policy actually benefit the developing world. We

should explore ways of compensating artists that are very

different from the ones we use now, and study the use of

distributed creativity and open source in new areas of science

and culture.

Difficulties aside, I have tried here to show that we need a

cultural environmental movement, a politics that enables us

first to see and then to preserve the public domain, to

understand its contributions to our art, our technology, and our

culture. Where is that movement now?

There is cause for both concern and optimism. Concern, because

it is still hard for courts, legislators, policy makers, and

citizens to see beyond the word "property" to the reality

underneath. I started this book with the question from my son

about the online catalogue of the Library of Congress: "Where do

you click to get the book?" In 2003 the Supreme Court heard

Eldred v. Ashcroft, the challenge to retrospective copyright

term extension. Over two strong dissents, the Court upheld the

constitutionality of the act against both First Amendment and

extended yet again. The widest legal restriction of speech in

the history of the Republic--putting off-limits most twentieth-

century books, poems, films, and songs for another twenty years

without a corresponding speech benefit or incentive--can proceed

without significant First Amendment review. Does such a decision

mean the task this book undertakes--to take seriously the

contributions of the public domain to innovation, culture, and

speech--is ultimately doomed, whatever its intellectual merits,

to face a hostile or uncomprehending audience? Admittedly,

Eldred focused specifically on two particular constitutional

claims. Still, the attitude of the majority toward the

importance of the public domain--whether in the textual

limitations on Congress's power or the application of the First

Amendment--can hardly be cause for optimism. And yet . . . The

media reaction was remarkable.

The New York Times was sufficiently unfamiliar with the term

"public domain" that it was not entirely sure whether or not to

use the definite article in front of it. But unfamiliarity did

not imply complacency. An editorial declared that this decision

"makes it likely that we are seeing the beginning of the end of

public domain and the birth of copyright perpetuity. Public

domain has been a grand experiment, one that should not be

allowed to die. The ability to draw freely on the entire

creative output of humanity is one of the reasons we live in a

time of such fruitful creative ferment."22 The Washington Post,

though more inclined to agree that retrospective extension might

be constitutional, declared the copyright system to be "broken"

in that it "effectively and perpetually protects nearly all

material that anyone would want to cite or use. That's not what

the framers envisioned, and it's not in the public interest."23

I could not agree more. But as I have tried to show here, the

process is not limited to copyright, or culture, or texts, or

the United States. Think of the stories about business method

patents, or synthetic biology, or the regulation of musical

borrowing on the atomic level. Think of the discussion of the

openness aversion that began this chapter. In the middle of the

most successful and exciting experiment in nonproprietary,

distributed creativity in the history of the species, our policy

makers can see only the threat from "piracy." They act

accordingly. Our second enclosure movement is well under way.

The poem with which I began Chapter 3 told us: "And geese will

still a common lack / Till they go and steal it back." I cannot

match the terseness or the rhyme, but if we assume that the

enclosure of the commons of the mind will bring us prosperity,

great science, and vibrant culture, well, we will look like very

silly geese indeed.

NOTES

Notes: Chapter 1

1. As the suggested further reading indicates, this light-

hearted account of the economic basis of intellectual property

conceals considerable complexity. On the other hand, the

core argument is presented here--and a compelling argument it is.

2. See Jack Hirshleifer, "The Private and Social Value of

Information and the Reward to Inventive Activity," American

Economic Review 61 (1971): 561-574.

How do we frame the empirical inquiry? Intellectual property