Care you should: James Boyle and The Public Domain

July 21, 2009Duke Law News

James Boyle’s The Public Domain: Enclosing the Commons of the Mind has one main purpose: to explain why policies governing intellectual property matter and to get us riled up to protect a valuable public domain. His pellucid prose is a call to arms, laying out the arcana of intellectual property law in plain English. We all have a stake in copyright, patents, trademark, trade secrets and other ways that law creates incentives to do the work of the mind and the hand — to write, to make music, to share pictures, to do science, to paint. Yet few of us pay much attention to how that law works, or what is at risk when it does not work well. Boyle puts it starkly: “Intellectual property rules will profoundly shape science, culture, and the market in the information age, [but] they just seem obscure, wonkish, hard to get excited about.”

Have you noticed that it has gotten harder for jazz musicians to borrow one another’s melodies, that much of the past century’s literature remains under copyright, whereas a century ago, it would have been freely available? James Joyce published Ulysses in 1922 and died in 1941; almost a decade into the new century the works of an author who died at the beginning of World War II are still under copyright. If ever there were an author whose works could benefit from modern tools of text analysis, it would surely be Joyce. But the irascible executor of his estate, Stephen James Joyce, has wielded copyright like a club. He has blocked several commemorations of his grandfather’s work, even by the Irish Government (which passed a law in response) and has constrained any scholarship that provokes his capacious sense of offense or arouses his deep suspicion of academics — the very constituency most responsible for keeping Joyce’s legacy alive and sustaining his main source of income.

It is not too much of an overstatement to say the nonexistent searchable online census of Finnegans Wake is collateral damage from Disney’s evergreening of the copyright for Mickey Mouse. Why? Disney is ready to defend its royalties and lobby for longer periods of copyright, but few even notice the lamentable paucity of tools for appreciating the greatest writer of the last century, fewer still are aware of its main cause: a dyspeptic heir brandishing copyright law.

Even as our technology makes worldwide access to information instantly available, changes in the law are deliberately dumping sludge in the information pipeline. Courts have expanded the subject matter that can be patented, Congress has several times extended copyright and passed the Digital Millennium Copyright Act at the behest of film and music purveyors. Boyle argues that intellectual property law is vital and valuable, but it has gotten out of balance as more of our intellectual space has been enclosed, the fences raised higher, and the gates more heavily patrolled.

Admittedly, not all the news is bad. The Supreme Court has made a series of recent decisions that lighten the headweight of the patent-law sledgehammer by giving judges discretion over issuing injunctions for patent infringement and assessing proportionate damages. The Court of Appeals for the Federal Circuit, the main appeals court for patent cases, narrowed the range of patentable “inventions” in its October decision In re Bilski. But Boyle’s fundamental point remains — the price of preserving a robust public domain is eternal vigilance.

The Public Domain concisely describes how legal incentives intended to augment intellectual endeavor can also impoverish our culture. This results from a cognitive bias that identifies foreseeable risks but discounts unanticipated benefits that arise from openness and sharing.

Notes Boyle: “One of the most stunning pieces of evidence to our aversion to openness is that, for the last 50 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.)”

The cognitive bias that privileges control of risk over network benefits from openness combines with a political economy in which the financial stakes and risks are great for the few and the benefits are also large but much more diffuse for the many. That is, we have a problem of attention asymmetry in which interest groups whose business is threatened by new technologies and open sharing pay close attention to intellectual property law and work to ensure it promotes their interests. They quite understandably and legitimately pursue their interests in a participatory democracy, but the countervailing motivations to preserve a robust public domain are relatively weak.

Italian engineer-turned-economist Vilfredo Pareto characterized the mathematics of this game theoretic problem a century and a half ago from his academic post in Lausanne: “... the loss of one Franc to each of one thousand persons and of a thousand Franc gain to one individual … [that individual] will expend a great deal of energy [and the thousand] will resist weakly.” Boyle notes “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.” His proposal is a social movement to correct the balance, and The Public Domain is his vehicle.

Yale University Press has adopted an enlightened policy of allowing simultaneous publication online in PDF format that can be freely downloaded from, a policy singularly well suited for Boyle’s main thesis of openness and availability of scholarly material on the web.

Boyle’s final chapter is devoted to an extended analogy to the environmental movement, an argument that a social movement is needed to protect the public domain. Until June 1962, Rachel Carson was a relatively unknown marine biologist who had successfully become a beloved nature writer. Her life, as ours, changed when her book Silent Spring was serialized in The New Yorker and then appeared in book form that September. She caught the wave of a growing social movement focused on pesticide use, air pollution, water pollution, and conservation of the natural environment. Her rise was fomented by a ham-fisted chemical industry whose vitriolic defensiveness and scorched earth rhetoric turned a quiet but impassioned writer into a heroine and cultural icon. Their vilification enhanced Rachel Carson’s stature and fanned the sparks of a book into the flames of a major social movement that brought us Earth Day and the Environmental Protection Agency … and Al Gore. Rachel Carson died in 1964. In 2009, you can pull up Silent Spring on Google books for free. Her books are a part of our culture. I would have quoted her, but if you go to, you’ll find a friendly notice: “All requests for permission to quote or to otherwise use Carson’s words from any source must be secured from Ms. Frances Collin, Trustee of the Estate of Rachel Carson. She is the only person who can give permission. She can be contacted at P.O. Box 33, Wayne, PA. 19087-9998.” Need we say more?
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