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The Public Domain

The Public Domain: Enclosing the Commons of the Mind

James Boyle
Copyright Date: 2008
Published by: Yale University Press
Pages: 288
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  • Book Info
    The Public Domain
    Book Description:

    In this enlightening book James Boyle describes what he calls the range wars of the information age-today's heated battles over intellectual property. Boyle argues that just as every informed citizen needs to know at least something about the environment or civil rights, every citizen should also understand intellectual property law. Why? Because intellectual property rights mark out the ground rules of the information society, and today's policies are unbalanced, unsupported by evidence, and often detrimental to cultural access, free speech, digital creativity, and scientific innovation.

    Boyle identifies as a major problem the widespread failure to understand the importance of the public domain-the realm of material that everyone is free to use and share without permission or fee. The public domain is as vital to innovation and culture as the realm of material protected by intellectual property rights, he asserts, and he calls for a movement akin to the environmental movement to preserve it. With a clear analysis of issues ranging from Jefferson's philosophy of innovation to musical sampling, synthetic biology and Internet file sharing, this timely book brings a positive new perspective to important cultural and legal debates. If we continue to enclose the "commons of the mind," Boyle argues, we will all be the poorer.

    eISBN: 978-0-300-14275-4
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-x)
  4. Preface: Comprised of at Least Jelly?
    (pp. xi-xvi)
  5. 1 Why Intellectual Property?
    (pp. 1-16)

    Imagine yourself starting a society from scratch. Perhaps you fought a revolution, or perhaps you led a party of adventurers into some empty land, conveniently free of indigenous peoples. Now your task is to make the society work. You have a preference for democracy and liberty and you want a vibrant culture: a culture with a little chunk of everything, one that offers hundreds of ways to live and thousands of ideals of beauty. You don’t want everything to be high culture; you want beer and skittles and trashy delights as well as brilliant news reporting, avant-garde theater, and shocking...

  6. 2 Thomas Jefferson Writes a Letter
    (pp. 17-41)

    On August 13, 1813, Thomas Jefferson took up his pen to write to Isaac McPherson.¹ It was a quiet week in Jefferson’s correspondence. He wrote a letter to Madison about the appointment of a tax assessor, attempted to procure a government position for an acquaintance, produced a fascinating and lengthy series of comments on a new “Rudiments of English Grammar,” discussed the orthography of nouns ending in “y,” accepted the necessary delay in the publication of a study on the anatomy of mammoth bones, completed a brief biography of Governor Lewis, and, in general, confined himself narrowly in subject matter.²...

  7. 3 The Second Enclosure Movement
    (pp. 42-53)

    In fits and starts from the fifteenth to the nineteenth century, the English “commons” was “enclosed.”² Enclosure did not necessarily mean physical fencing, though that could happen. More likely, the previously common land was simply converted into private property, generally controlled by a single landholder.

    The poem that begins this chapter is the pithiest condemnation of the process. It manages in a few lines to criticize double standards, expose the controversial nature of property rights, and take a slap at the legitimacy of state power. And it does this all with humor, without jargon, and in rhyming couplets. Academics should...

  8. 4 The Internet Threat
    (pp. 54-82)

    The conventional wisdom is that governments respond slowly to technological change. In the case of the Internet, nothing could be further from the truth. In 1994 and 1995, “dot-com” was still a mystical term for many. Most stories about the Internet dealt with sexual predation rather than possibilities of extreme wealth. Internet commerce itself was barely an idea, and some of the most exciting sites on the Web had pictures of coffeepots in university departments far away. (“See,” one would proudly say to a technological neophyte friend when introducing him to the wonders of the Net, “the pot isempty...

  9. 5 The Farmers’ Tale: An Allegory
    (pp. 83-121)

    Imagine that a bustling group of colonists has just moved into a new area, a huge, unexplored plain. (Again, assume the native inhabitants have conveniently disappeared.) Some of the colonists want to farm just as they always did in the old country. “Good fences make good neighbors” is their motto. Others, inspired by the wide-open spaces around them, declare that this new land needs new ways. They want to let their cattle roam as they will; their slogan is “Protect the open range.” In practice, the eventual result is a mixture of the two regimes. Fields under cultivation can be...

  10. 6 I Got a Mashup
    (pp. 122-159)

    So far, I have talked about the root ideas of intellectual property. I have talked about its history, about the way it influences and is influenced by technology. I have talked about its effects on free speech and on competition. Until now, however, I have not described the way that it actually affects culture. This chapter aims to rectify the omission, looking at the way copyright law handles one specific form of cultural creation—music. It turns out that some of the problems identified in Chapters 4 and 5 are not simply the result of a mismatch between old law...

  11. 7 The Enclosure of Science and Technology: Two Case Studies
    (pp. 160-178)

    Over the last forty years, much has changed in the way that scientific research and technological development are organized, funded, and institutionally arranged. Much has also changed in the type of scientific and technical material that is covered by intellectual property rights, the ways that material is covered, the parties who hold the rights, and the state of research and development at which rights claims are made. Many academics who study both science’s organizational structure and the intellectual property claims that surround it are concerned about the results. To say this is not to conjure up a tragically lost world...

  12. 8 A Creative Commons
    (pp. 179-204)

    If you go to the familiar Google search page and click the intimidating link marked “advanced search,” you come to a page that gives you more fine-grained control over the framing of your query. Nestled among the choices that allow you to pick your desired language, or exclude raunchy content, is an option that says “usage rights.” Click “free to use or share” and then search for “physics textbook” and you can download a 1,200-page physics textbook, copy it, or even print it out and hand it to your students. Search for “Down and Out in the Magic Kingdom” and...

  13. 9 An Evidence-Free Zone
    (pp. 205-229)

    Perhaps some of the arguments in this book have convinced you. Perhaps it is a mistake to think of intellectual property in the same way we think of physical property. Perhaps limitations and exceptions to those rights are as important as the rights themselves. Perhaps the public domain has a vital and tragically neglected role to play in innovation and culture. Perhaps relentlessly expanding property rights will not automatically bring us increased innovation in science and culture. Perhaps the second enclosure movement is more troubling than the first. Perhaps it is unwise to extend copyright again and again, and to...

  14. 10 An Environmentalism for Information
    (pp. 230-248)

    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...

  15. Notes and Further Readings
    (pp. 249-296)
  16. INDEX
    (pp. 297-315)